This civil revision assail judgments and decrees dated 27.3.2001 and 13.5.2003 passed by the learned Civil Judge and learned Additional District Judge, Sargodha, whereby suit of the petitioners was dismissed and their appeal there against failed, respectively.
2. Precisely, relevant facts are that petitioners filed a suit for possession through pre-emption pre- empting sale of land measuring 83M Kanals detailed in the plaint effected through Mutation No, 1635 dated 12.8.1993, averring that sale consideration was Rs, 4,63,000/-, but in order to defeat pre- emptive right of the petitioners, the price was inflated to Rs, 13,00,000/-. Superior pre-emptive right was claimed by the petitioners being Shafi Sharik, Shafi Khalit and Shafi Jar. It was also pleaded in the plaint that they gained knowledge of sale on 16.10.1993 when they immediately exclaimed their intention of pre-empting the sale having superior pre-emptive right and thereafter through a registered notice dated 18.10.1993 fulfilled the requirement of "Talb-e-Ishhad" and .then by filing the suit performed "Talb-e-Khusumat".
3. Respondents being defendants in the suit, contested it by filing their written statement wherein they denied superior right of the petitioners and performance of Talabs by them in accordance with the provisions of Section 13 of the Punjab Pre-emption Act, 1991. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, who was seized of the matter, after doing the needful, vide his judgment and decree dated 27.3.2001 dismissed the suit of the petitioners holding that they could not prove the performance of Talabs, in accordance with law.
4. Petitioners aggrieved of the decision of the trial Court dated 27.3.2001 filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed vide judgment and decree dated 13.5.2003. Thereafter, they filed instant revision petition for setting aside concurrent judgments and decrees of the two Courts below, which was admitted to regular hearing and after completion of record has now been placed for final determination. The respondents are represented through their counsel.
5. Learned counsel for the petitioners submitted that petitioners proved performance of all the three Talabs in accordance with law, but a contrary view taken by the two Courts below, is not in consonance with the evidence on the file. According to him all the three PWs (PW. 3 to PW.5) have consistently deposed' that the petitioners on gaining knowledge on 16.10.1993 instantly made "Talb- e-Muwathibat" and thereafter by visiting the respondents demanded the land purchased by them and subsequently by giving a notice attestedby two truthful witnesses through registered post acknowledgment due performed "Talb-e-Ishhad". Learned counsel for the petitioners further ,submitted that though there is no discrepancy in the statements of PWs, yet small variations are bound to happen by lapse of time and on the basis of such minor contradictions, statements of PWs in toto cannot be rejected under law. Learned counsel for the petitioner further argued that now it is settled that service of notice with regard to "Talb-eIshhad" is not necessary. He relied on the judgments in the cases of Haji Rana Muhammad Shabbir Ahmad Khan vs. Government of Punjab Province, Lahore (PLD 1994 S.C. 1) and Haji Qadar Gul vs. Moembar Khan and another (1998 SCMR 2102). He further submitted that postal receipts brought on record were enough to show that notice of "Talb-e-Ishhad" was delivered to the respondents and for this purpose no further evidence, was needed. Reliance was placed on the case of Anjum Hayat Mirza vs. Rehmat Khan (1996 SCMR 1230). A reference to Section 31 of the Punjab Preemption Act, 1991 was also made to contend that since no public notice as prescribed by law was given by the officer attesting mutation, it cannot be presumed that petitioners had the notice of sale. Judgment of the Honourable Supreme Court in the case of Mian Asif Islam vs. Mian Muhammad Asif and others (PLD 2001 S.C. 499) was relied.
6. Learned counsel for the respondents refuted the arguments of the petitioners, supported the concurrent judgments and decrees of the two Courts below and urged that though performance of "Talb-e-Muwathibat" and its details are necessarily to be given in the plaint' s well as the evidence because this is the starting point from which all the other ancillary acts of "Talb-e-Ishhad" and "Talb-e-Khusumat" are to be determined, but neither the time of gaining of knowledge and performance of "Talb-e-Muwathibat" was pleaded or proved by evidence nor it was shown that at what particular place this Talab was made. According to him, this lapse on the part of the petitioners went a long way before that story of "Talb-e-Muivathibat" which was subsequently performed. He further contended that case of the ' respondents that they took over possession of the land in dispute much before the sanctioning of mutation under" the agreement to sell under the agreement to sell and thus purchase by them was within the knowledge of the petitioners, but they intentionally did not make the immediately "Talb-e-Muwathibat", which was falsely alleged to have been made after two months of the sanctioning of mutation. He further submitted that besides non-proof of "Talb-e-Muwathibat" petitioners could not prove "Talb-e-Ishhad" as the original notices were, not produced in evidence. According to him, right if any of the petitioners, stood extinguished through non-performance of Talabs in accordance with law.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. No doubt the petitioners mentioned in their plaint that they while sitting at Khan Filling Station on 16.10.1993 gained knowledge of the sale when they immediately made "Talb-e-Muwathibat". Petitioners have not mentioned in the plaint time, at which they, gained knowledge and the Person from whom they acquired it. It is also not mentioned in the plaint that at what particular place at the Khan Filling Station they were holding . the meeting wherein they gained knowledge. In order to prove "Talb-eMuwathibat" the petitioners examined PW. 3 Muhammad Nazir, PW. 4 Khan Muhammad and one of the petitioners appeared as PW. 5.
Though all these three witnesses deposed in the alike manner as averred in the plaint, yet they improved their statements by saying that the knowledge by the petitioners was gained at 2:30 p.m. and they also failed to particularize the place of meeting at Khan Filling Station. Presence of PW. 3 and PW. 4 at the time of performance of "Talb-e-Muwathibat" is not mentioned in the plaint and though their names have been mentioned in relation to "Talb-e-Ishhad", yet both of them have not mentioned each other's name in their statements and they have not explained as to how they were present at Khan Filling Station at that time. PW. 3 in his statement stated that he informed the petitioners regarding sale, whereas PW. 4 stated that he alongwith Nazir PW, 3 both informed about sale to the petitioners. These discrepancies are not minor rather these are the only contradictions, which go to negate stand taken by a pre-emptor. PW. 3 besides his contradictory statement admitted in the cross-examination his relationship with the petitioners.
8. Coming to performance of "Talb-e-Ishhad" petitioners have attempted to prove delivery of registered letters to the respondents by producing PW. 2 Ehsan Elahi postman who deposed that he delivered the registered letters and obtained signatures/thumb-impressions of the respondents on acknowledgment receipts Exh. P. 5 to Exh.P.
8. Those receipts were got compared with the sample thumb-impressions and signatures obtained by the trial Court through Forensic Science Laboratory, Lahore. The report of the Forensic Science Laboratory has been produced in evidence as Exh.DW. 8/1, which shows that Urdu signatures of Muhammad Nazir Respondent No, 1 on documents Exh.P. 6 and Exh.P. 8 are not ,identical with the specimen signatures Exh.D.
8. The report of Finger Print 'Expert shows that thumb-impression on Exh.P. 5 and Exh.P. 7 marked as `Al and 'B' are different from right and left thumb-impressions of Shaukat Ali and Muhammad Bashir respondents with their thumb-impressions on the sample paper. Hidayat Ali Finger Print Expert, Forensic Science Laboratory, Lahore appeared as DW. 9 to prove his report Mark 'A'. Bashir Qureshi Handwriting Expert appeared before the trial Court as DW. 8 and deposed that the signatures on Exh.P. 6 and Exh.P. 8 allegedly by Muhammad Nazir are not identical to the specimen signatures obtained by the trial Court. With this evidence it could not be said that notice of "Talb-eIshhad", as alleged to have been dispatched through a registered postal cover, was really delivered to the respondents.
9. Petitioners produce photocopies of the notices Exh.P. 9 to Exh.P. 12, without bringing on record their originals and in view of provisions of Article 76 of Qanun-e-Shahadat Order, 1984, copies simplicitor are not admissible in evidence. According to the case of the petitioners, the original notices were served on the respondents, thus the proper course for them was to require the respondents to produce the original documents by giving a notice and had the respondents failed to do so, they should have moved the trial Court for secondary evidence in terms of Article 76 of Qanun-e-Shandat Order, 1984. This Court has consistently held that without bringing on record the original document and without seeking permission for secondary evidence, notice of "Talb-e- Ishhad" can't be proved. Reference in this behalf can be made to Mst. Amir vs. Soini (1997 MLD 2376), Muhammad Rafiq vs. Ghulam Murtaza (1998 MLD 292), Fateh Muhammad and 2 others vs. Gulsher (2000 CLC 409), Hayatullah Jan and others vs. Jan Alam and others (2003 MLD 625) and Ghulam Abbas vs. Manzoor Ahmed and another (PLD 2004 Lahore 125). Petitioners did not adopt a lawful method of proving the notice of "Talb-e-Ishhad' and by merely placing on record photocopies without confronting those to the witnesses PW.3 and PW. 4, they asserted that they have proved "Talb-e-Ishhad", but the law does not favour the mode adopted by them. Petitioners miserably failed to prove notice, its contents, its service on the respondents and in the given circumstances without proof that what the letter, which was dispatched through post vide receipts Exh.P. 1 to Exh.P. 4 contained, they could not succeed in their suit. Judgments relied by the learned counsel for the petitioners proceed on altogether different facts and circumstances, as in those cases performance of "Talb-e-Muwathibat" and "Talb-e-Ishhad' was proved and the Honourable Supreme Court graciously held that mere non-proof of service of notice being a procedural matter, is not fatal to the pre-emptor's suit, but in the instant case situation is to the contrary, as noted above.
10. For what has been discussed above, I have no hesitation to hold that both the Courts below have returned findings in support of their judgments and decrees strictly in consonance with the evidence on the file, without misreading or non-reading it. They have committed no illegality or irregularity, envisaged by Section 115 CPC, in absence of which no interference in revisional jurisdiction of this Court is permissible, under law. This revision petition has no merit and is accordingly dismissed, leaving the parties to bear their own costs.