' ABDUL HAMEED DOGAR, J.--- Petitioners seek leave to appeal against the judgment, dated 29-11- 2002 of a learned Single Judge of the Lahore High Court, Lahore, whereby Civil Revision No,547 of 1999 filed by respondents was accepted and the judgment and decree of the First Appellate Court was set aside and that of trial Court was restored and suit for possession through pre-emption filed by Abdul Majeed, predecessor-in-interest of respondents was decreed.
2. Briefly, stated, facts giving rise to the filing of instant petition are that the suit-land measuring 10 Marlas situated in the area of Chak No,129/SB, Tehsil Sillanwali, District Sargodha was sold by Ghulam Rasool to Azmatullah, predecessor-in-interest of petitioners vide Mutation No,655 dated 23-6-1994 against a consideration of Rs,1, 00,000. Deceased Abdul Majeed, predecessor-in-interest of respondents announced his intention to purchase the suit-land in the Majlis of the village claiming his superior right of pre-emption on the ground that the suit property was adjacent to his land and Dera. He also claimed that the sale p!Ice was actually Rs,20,000 which was in fact the market value in the area at the relevant time. Thereafter said Abdul Majeed sent notice of Talb-i- Ishhad to Azmatullah on 5-9-1994 attested by two witnesses stating the entire facts therein. He, however, filed suit for possession through pre-emption which was contested by Azmatullah who filed written statement wherein he raised preliminary objections that no notice of Talb-i-Ishhad as required under section 13(3) of the Punjab Pre-emption Act, 1991 (hereinafter referred to as 'the Act') was served on him and that he had also purchased the land for consideration of Rs,1, 00,000 for running his business and also incurred a sum of Rs,6, 000 on its improvement. The trial Court framed as many as (11) issues and after recording the evidence decreed the suit on 15-7-1997.
3. Feeling aggrieved, petitioners preferred appeal which was allowed by the learned Additional District Judge, Sargodha, on 17-2-1999. The said judgment was assailed by respondents before the leaded High Court in the above-mentioned civil revision which was allowed vide impugned judgment.
4. We have heard Messrs Arshad Ali Ch. Learned Advocate Supreme Court for the petitioners and Zaheer Ahmed Qadri, learned Advocate Supreme Court for the respondents at length and have gone through the record and proceedings of the case in minute particulars.
5. Learned counsel for the petitioners vehemently contended that learned High Court has not appreciated the evidence brought on record in its true perspective which resulted in miscarriage of justice. According to him, the pre-requisite conditions of Talb-i-Ishhad and Talb-iMuwathibat as prescribed by law were not fulfilled in this case. Neither any date on which plaintiff deceased Abdul Majeed came to know about the sale was disclosed by him in the plaint nor was the date on which he desired to pre-empt the land after coming to know for the first time disclosed. Even the names of two truthful witnesses in whose presence he made declaration to pre-empt have been mentioned. He vehemently Urged that the requirement of Talb-i-Muwathibat cannot be fulfilled unless the details, particulars, date, time and place are specifically indicated in the plaint and the names of persons in whose presence such Talb was made. He went on to argue that witnesses, namely, Muhammad Afzal (P.W.1), Muhammad Sharif (P.W.2) and Muhammad Shafi, (P.W.3) even did not disclose in their respective statements in evidence the time and the date of sale, therefore, the period for making Talb-iIshhad cannot be said to have been made within two weeks from the date of knowledge of sale. Even notice of Talb-i-Ishhad did not bear the time and date of reconfirmation of Talb-i-Muwathibat while making Talb-iIshhad. Lastly, the learned counsel contended that the judgment of First Appellate Court is well-reasoned and is based on proper appraisal of evidence and in accordance with law, as such, the same may be maintained. He vehemently stressed upon the case of Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCM R 431 wherein according to him, this Court laid down principle that the date and time of making Talb-i-Muwathibat is necessary to be mentioned in the plaint as it puts a limitation on the prospective pre-emptor that he must express his intention to pre-empt immediately and in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or his knowledge, so that the limitation is computed accordingly and secondly for the reason that from the time of making of Talb-i-Muwathibat, the statutory period of 15 days of performance of Talb-i-Ishhad has to be computed.
6. On the other hand, according to the learned counsel for the respondents the impugned judgment does not suffer from any legal flaw and contended that all the three P.Ws. Examined are unanimous about the date, time and place of gaining of knowledge by the respondents regarding sale and have unambiguously deposed that the respondents instantly expressed their intention of pre-empting the sale. He further contended that the respondents have proved notice of Talb-i- Ishhad by producing its marginal witnesses, namely, (P.W.1) Muhammad Afzal, (P.W.2) Muhammad Sharif and (P.W.3) Muhammad Shafi who without any contradiction, supported the case of respondents on making of Talbs. He further contended that even service of notice on ,petitioners is established through the testimony of independent witness, namely, Khizar Hayat, Postman who also produced postal receipt Exh.P.3. He strenuously argued that whosoever comes forward to testify shall be presumed to be truthful unless otherwise proved as it has been held by this Court in the case of Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCM R 958. According to him, the manner of making Talb-i-Muwathibat and sending the notice of Talb-iIshhad have been elaborately discussed by a larger Bench of this Court in the case of Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCM R 329 and the case of respondents is at par with that case as such it being a decision of larger Bench is binding on the decision of smaller Bench of this Court. On that aspect also learned counsel referred to the case of Chaudhry Muhammad Salem v. Fazal Ahmad and 2 others 1997 SCM R 315.
7. Admittedly, Abdul Majeed, predecessor-in-interest of respondents in the plaint claimed the right of pre-emption on the basis of being Sahfi Jar and Shafi Khalit. According to the plaint on coming to know about the sale he immediately disclosed his intention to pre-empt the suit-land in the Majlis of village in presence of P.W.2 Muhammad Sharif and P.W.3 Muhammad Shafi. According to the averments, the sale was kept secret and was disclosed to the plaintiff after about three months i,e, on 4-9-1994 which fact is established and not rebutted. The factum of sending of notice of Talb- i-Ishhad on the next day i,e, 5-5-1994 after getting it attested by two truthful witnesses, namely, Muhammad Sharif and Muhammad Shafi also stood established on the record. Irrespective of above, a glance over the judgment of the trial Court reveals that defendant Azmatullah Qureshi, predecessor-in-interest A of petitioners had not filed written statement, as such, though his defence could have been struck off but' the trial Court decided the case on merits. As regards the right of pre-emption, it has been categorically stated by P.Ws., namely, P.W.1 Muhammad Afzal, P.W.2 Muhammad Sharif and P.W.3 Muhammad Shafi that Abdul Majeed predecessor-in-interest of respondents had the superior right on the basis of contiguity, common boundary line, common right of passage and common' right of irrigation. Above all, there is no exception to the concurrent findings of trial Court and that of learned High Court on both Talbs, which according to them, were made well in accordance with law. Learned counsel for petitioners though argued at length yet could not refer to any illegality, misreading or non-appraisal of evidence. It is well-settled principle enunciated by this Court that the judgment of larger Bench is binding on the judgment of smaller Bench. Examining the case of respondents on the touchstone of the case of Haji Noor Muhammad (supra), it is found to be exactly the same on all four corners. Thus, it being the decision of larger Bench is binding on the smaller Bench. In this context, we are fortified by the case of Chaudhry Muhammad Saleem v. Fazal Ahmad and others 1997 SCM R 315 wherein it has been held that the judgment rendered by the Full Bench of this Court comprising five Judges would be binding upon the Bench comprising of three Judges. In the case of Haji Noor Muhammad (supra) it has also been held that the plaintiff could not be non-suited merely on the ground that other details of time and place of the Talbs and names of witnesses etc. Had not been specifically mentioned in the plaint. In the case of Allah Bakhsh and another v. Falak Sher 2004 SCM R 1580 this Court has held that minor discrepancy of time would not come in the way of pre-emptor. This Court also held in the case of Abdul Malik v. Muhammad Latif 1999 SCM R 717 that the service of registered notice by pre-emptor containing the names of the two truthful witnesses before whom Talb-i-Ishhad was allegedly made amounted to substantial compliance of the provisions of section 13(3) of the Act and pre-emptor could not be non-suited on the ground that the notice served on the vendee containing Talb-i-Ishhad was not attested by the two truthful witnesses whose names were disclosed in the notice.
8. For what has been discussed above, we are of the considered opinion that impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading nor non-reading of material evidence brought on record or misconstruction of facts or law.
9. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused. 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.