' 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 Additional District Judge, 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 Additional District Judge.
2. Learned counsel for the petitioners contends that the learned Additional District Judge 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-i-Ishhad was not made within the time prescribed by law and as such the establishment of the precise date 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 Additional District Judge 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 (Exh.D.10) was attested on 12-1-1991 and the notices of Talb-i- Ishhad (Exh.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 P.W.1 aged 55 years and Subedar Muhammad Elahi, P.W.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 Girdawari 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 preemption. Both these witnesses have also attested the said notice of Talb-i- Ishhad 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 Additional District Judge 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 P.Ws. 1 and 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 Additional District Judge is that the date, time, etc. Of the Talb-i-Muwathibat have not been mentioned in the plaint. The matter stands settled by a larger Bench of the Honourable 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 2000 SCM R 314. The pleadings are, therefore, sufficient. The insistence of the learned Additional District Judge, that the precise date has not been stated by the witnesses i.e, P.Ws.1 and 2 is rather misplaced. As explained by me above, upon an overall reading of the evidence one gets sufficient idea as to the time and manner of making of the Talbs and thereafter the performance of Talb-i-Ishhad. 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-i-Ishhad 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 Additional District Judge has misread the evidence on record rather failed to read it on baseless assumptions, His judgment, therefore, does suffer 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 Additional District Judge, 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. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.