MAULVI ANWARUL HAQ, Vide mutation No. 1195 attested on 12.1.1991 the respondents purchased the suit land, mentioned in the plaint, for a consideration of Rs.17,000/-. Ghulam Elahi, the predecessor-in-interest of the petitioners, filed a suit for possession by pre-emption. He claimed to be an owner of the adjacent property and also sharing a common passage. Performance of talbs was pleaded. The respondents filed a written statement denying the said allegations. Issues were framed. Evidence of the parties was recorded.
The learned Trial Court decreed the suit in favour of the petitioners, except four marlas of land in Khasra No. 173/1, subject to deposit of Rs.16,849/- in Court. This was done vide judgment and decree dated 27.11.1994. The respondents filed a first appeal which was heard by. a learned ADJ, Chakwal, who allowed the same on 17.3.1999 and dismissed the suit, on the ground that the talbs have not been performed. I also note that only the matter of talbs was agitated by both the parties before the learned ADJ.
2. Learned counsel for the petitioners contends that the learned ADJ discarded the entire evidence of the petitioners for reasons which have no basis. Further explains that this was a case where there was no dispute that Talb-e-lshhad was not made within the time prescribed by law and as such the establishment of the precise stated of information was neither relevant nor required.
Learned counsel for the respondents, on the other hand supports the impugned judgment and decree of the learned ADJ by asserting that the mentioning of the requisite particulars in the plaint was necessary.
3. I have gone through the copies of the records. Now two dates are absolutely clear. The mutation of sale (Ex.D.10) was attested on 12.1.1991 and the notice of Talb-e-lshhad (Ex.P.1, P.2 and P.3) were issued on 24.1.1991.
4. Now in the plaint it was stated by the deceased plaintiff that the moment he came to know about the sale he made the first talb in the same Majlis. Thereafter he issued a notice on 24.1.1991 under registered cover. Now the plaintiff died during the pendency of the suit and before his statement could be recorded. Chan Sher PW-1 aged 55 years and Subedar Muhammad Elahi PW-2 aged 80 years have deposed that in January, 1991, they alongwith the deceased plaintiff went to the Baithak of the Patwari for checking the Girdwari and the Patwari informed of the sale whereupon deceased plaintiff said that he will suffer loss as they will pass through his land and that he will file a suit for pre-emption. Both these witnesses have also attested the said notice of Talb-e-lshhad and have accordingly stated. Now it is true that the exact date has not been stated by any of the two witnesses but it will be noted that generally the statements are in accord with the pleadings of the deceased and also with reference to the material facts i.e. The acquisition of knowledge of sale by the deceased plaintiff at the Dera of the Patwari and through the Patwari.
Now it is in this context that the contents of notice ought to be seen. In the notices it has been stated that knowledge was acquired on 16.1.1991 and that the deceased plaintiff had made the talb there and then.
5. Now the learned ADJ has reasoned that the Patwari has not been produced and this is fatal. To my mind the said observation is not correct and since it has resulted in the dismissal of the petitioners suit, the same is without lawful authority. The reason being that it is in the plaint itself that the talb was made in presence of the members of the Majlis. This, of course, refers to PW-1 and PW-2. Both the witnesses have stated that the Patwari had told the deceased plaintiff about the sale. This being so, there was no need to produce the Patwari as such.
6. The second reason stated by the learned ADJ is that the date, time, etc. Of the Talb-e- Muwathibat have not been mentioned in the plaint. The matter stands settled by a larger Bench of the Hon'ble Supreme Court of Pakistan with reference to yet another larger Bench of their Lordships in the case of Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (KLR 2000 SC (Pak) 94). The pleadings are, therefore, sufficient. The insistence of the learned ADJ that the precise date has not been stated by the witnesses i.e. PWs.1 and 2 is rather mis-placed. As explained by me above, upon an over all reading of the evidence on gets sufficient idea as to the time and manner of making of the talb and thereafter the performance of Talb-e-lshhad. I may repeat that in the present case it would not have served any purpose to state the date of performance of talbs with precision, the reason being that the Talb-e-lshhad in any case has been made within the prescribed period of 14 days counting from the date of attestation of mutation itself.
7. For all that has been discussed above, I find that the learned ADJ has mis-read the evidence on record rather failed to read it on baseless assumptions. His judgment, therefore, does further from material irregularity in the exercise of his jurisdiction. This civil revision accordingly is allowed. The impugned judgment and decree dated 17.3.1999 of the learned ADJ, Chakwal, is set aside while the one passed by the learned Trial Court on 27.11.1994 partly decreeing the suit of the petitioners, with all its terms is restored. In case the petitioners have not deposited the amount as directed by the learned Trial Court or have withdrawn the same, they shall deposit the amount i.e. Rs.16,849/- in the Trial Court on or before 15.12.2003 failing which the suit shall stand dismissed with costs throughout.
At the moment the parties are left to bear their own costs. .