This civil revision assails the judgment and decree dated 19.1.2004 passed by the learned Additional District Judge Pasrur, District Sialkot, whereby the suit of the respondents for possession through pre-emption was decreed subject to deposit of Rs, 1,80,000/-
2. Precisely, relevant facts are that respondents filed a suit for possession through pre-emption against the sale of land measuring 7 kanals and 19 marlas detailed in the plaint, effected through Mutation No, 124 dated 12.4.1999 for an amount of Rs, 1,80,000/- in favour of the petitioners. The respondents claimed their superior pre-emptive right being "Shafi Sharik" and "Shafi Khalit" and pleaded in the plaint that the sale in favour of the petitioners came to their knowledge on 12.5.1999 at 7.00 p.m. when they were sitting in their Baithak in Chak Maral, Tehsil Pasroor, District Sialkot, where Sarwar. son Akbar came, in presence of Haji Saeen son of Wadhawa informed them about it whereupon they immediately exclaimed their intention of pre-empting it because their right was superior quo the petitioners. They also averred that they on 14.5.1999 performed Talab-eIshhad by sending notice attested by two truthful witnesses.
3. The petitioners being defendants in the suit denied the assertions in the plaint by filing their written statement besides raising certain preliminary objections regarding lack of cause of action, locus standi of the respondents, estoppal on their part and valuation of the suit etc. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter after doing the needful, on the basis of his appraisal of evidence dismissed the suit of the respondent vide judgment and decree dated 6.5.2002.
4. Respondents aggrieved of the decision of the trial Court dated 6.5.2002 filed an appeal before the learned Additional District Judge where they succeeded as their appeal was accepted and their suit was decreed subject to deposit of Rs, 1,80,000/- including zar-e-soam if already deposited, till 10.2.2004, vide judgment and decree dated 19.1.2004. The petitioners, thereafter, filed the instant revision petition wherein, respondents in response to notice have appeared through their counsel.
5. The learned counsel for the petitioners submits that evidence produced by the respondents to prove performance of talabs was discrepant and negatively reflected over their claim but has erroneously been accepted by the Appellate Court. It was further submitted that the respondents did not perform the required "talabs" and thus their pre-emptive right; if any, stood extinguished in terms of Section 13 of the Punjab Pre-emption Act, 1991. The learned counsel for the petitioners further contended that the Appellate Court was not justified in reversing the well reasoned judgment of the trial Court without meeting the point evolved therein.
6. The learned counsel for the respondents refuted the arguments of the petitioners, supported the appellate judgment; and argued that all the three witnesses produced by the respondents to prove the performance of "talabs" were unanimous about the time, date and place of making "talabs" by the respondents and minor discrepancies are bound to occur by lapse of time especially when the witnesses are not much educated. He further elaborated his argument by submitting that in case of judgments at variance the appellate judgment has to be preferred, especially when the same is not tainted with any illegality or irregularity, as envisaged by Section 115 CPC.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. The only dispute urged by the petitioners is with regard to fulfillment of conditions of "talabs" by the respondents (Issue No, 2). In this manner, the matter which hinges for determination is whether the Appellate Court has returned findings on Issue No, 2 according to the evidence on the file or not. The respondents produced 3 witnesses including statement of one of the respondents Sajjad Ahmad who appeared as PW.1 who meticulously supported the stance taken in the plaint by deposing that a month after the sale when they were sitting in their Baithak at about 7.00 p.m. Sarwar PW.2 came there in presence of Haji Saeen and his brother and conveyed the information of sale in dispute where upon they immediately exclaimed their intention of pre-empting it as their right was superior quo the petitioners. He further stated that on 14.5.1999 they went with the witnesses to the Courts premises where notice of talab-e-Ishhad (Ex. P.1) and (Ex. P.2) attested by, two truthful witnesses, were dispatched to the petitioners which as delivered to the petitioners and acknowledgement due (Ex.
P.3) and (Ex. 4) were received back which were signed by the petitioners in his presence the other witnesses PW.2-Muhammad Sarwar and PW.3-Haji Saeen narrated the verbatim narration as deposed by PW.1. There is no discrepancy in the statement of these witnesses regarding performance of talabs by the respondents and the minor discrepancy regarding a number of cots or places of sitting of different persons at that time, are not much material. All the PWs do not appear to be much literate, besides it their statements were recorded after lapse of about 2 years, hence, such minor discrepancies are bound to occur by lapse of time and at the same time those do not come to negate consistent averments of making "ta.labs" by the respondents at a unanimous time, place; and the day. The Honourable Supreme Court in similar circumstance mandated that on the basis of minor discrepancies which are of usual nature, statements of the witnesses cannot be discarded on the basis there of, as held in the case of Abdul Qayum (deceased) through LRs, vs. Mushk-e-Alam and another (2001 SCJ 361).
8. As regard the performance of "talab-e-Ishhad" the respondents produced notice in this behalf as (Ex. P.1) and (Ex. P.2), alongwith postal receipts (Ex. P.7) and (Ex. P.8). PW.1 also produced acknowledgement receipts (Ex. P3) and (Ex. P4) with a statement that those were signed by the petitioners in his presence. None of these documents were objected while those were tendered in evidence and PW.1 was not cross- examined about acknowledgement receipt alleged to have been signed by the petitioners. They also did not take any ground of attack with regard to non-receipt of notice of "talab-e-Ishhad" in their grounds of revision before this Court and simply felt satisfied by saying that "unless the requisite talabs are proved to have been made in accordance with law the right of pre-emption stands extinguished". In such circumstance I have no hesitation in holding that Appellate 'Court has rightly concluded Issue No, 2 by holding that respondents successfully proved performance of "talabs".
9. No doubt judgments of the two Courts below are at variance but law regarding preference out of these judgments, is settled by this time where under appellate judgment has to be given preference unless and until the same is shown to have been tainted with any illegality or irregularity of misreading or non-reading of evidence. My this view is fortified by the alighted judgments of the Honourable Supreme Court in the case of Madan Gopall and 4 others versus Maran Bupari and 3 others (PLD 1969 SC 617), Mir Muhammad alias Miral Versus Ghulam Muhammad (PLD 1996 Karachi 202), Abdul Nabi and 29 others Versus Jan Muhammad and 26 others (1998 CLC 1842) and Ilamuddin through legal heirs versus Syed 'Sarfraz Hussain through legal heirs and '5 others (1999 CLC 312). The above scan of evidence shows that findings returned by the Appellate Court are absolutely in consonance with the evidence on the file, and no part of it could be shown to have been misread.
10.For what has been discussed above I am constrained to hold that the appellate judgment does not suffer from any illegality or irregularity, as envisaged by. Section 115 CPC, in absence of which no interference in revisional jurisdiction is permissible, under law. This revision petition has no 'merit in it and is according dismissed with no order as to costs.