' This revision petition assails judgment and decree, dated 19-10-2002 passed by the Additional District Judge, Jhang, whereby appeal of the respondent was accepted and suit of the petitioner was dismissed, reversing judgment and decree, dated 12-4-2002, passed by the learned trial Judge.
2. A short factual background of the case is that the petitioner filed a suit for possession through pre-emption against sale of 16 Kanals of land through Mutation No.662, dated 31-12-1997 sold by Khadim Hussain son of Sher Muhammad for an amount of Rs.90,000. The petitioner asserted that sale, dated 31-12-1997 came to his knowledge on 15-1-1998 at about 10-00 a.m. From the respondent, who came to him, demanding possession of the land and share of canal water of the disputed 16 Kanals and on asking of the petitioner that on what basis he claims possession or share of canal water, he told that he has purchased this land through Mutation No.662, dated 31- 12-1997. The petitioner on it, immediately exclaimed his intention of pre-empting the sale as his pre-emptive right was superior to that of respondent. The petitioner on the same day, made Talbi- Ishhad and dispatched a notice attested by two truthful witnesses under a registered cover to the respondent and thus, claimed to have fulfilled the requirements of section 13 of the Punjab Pre- emption Act, 1991. The petitioner also pleaded in his plaint that he has superior right on account of being Shafi Sharik, Shafi Khalit and Shafi Jar. He claimed to perform Talb-iKhusumat by filing suit on 19-1-1998.
3. The respondent being defendant in the suit controverted the assertions in the plaint, denied performance of Talbs by the petitioner and his superior rights and pleaded that besides payment of Rs.90,000 as price of the land, he incurred expenses of Rs.16,000, on account of completion of sale in his favour. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence, on the basis of which learned trial Judge, who was seized of the matter, vide his judgment and decree, dated 12-4-2002, granted the petitioner decree prayed for, subject to payment by him of Rs.90,000 along with incidental charges which were required to be deposited by the petitioner, after deducting Zar-e-Soim, if any, within 30 days.
4. The respondent aggrieved of the decision, dated 12-4-2002 of the trial Court, filed an appeal before the Additional District Judge, Jhang, which was accepted vide judgment and decree, dated 19-10-2002 and suit of the petitioner was ordered to be dismissed, reversing findings of the trial Court on issue No.2 relating to performance of Talbs. The petitioner has now come in revisional jurisdiction of this Court for setting aside the appellate judgment and decree, impugned herein.
5. Learned counsel for the petitioner submits that the petitioner with all clarity mentioned all the particulars regarding performance of both the Talbs by him, in his plaint and both the witnesses P.W.2 and P.W.3 materially supported his assertion in the plaint, as well as, made in his statement as P.W.1 and thus, discharged onus to prove issue No.2 placed on him but the Additional District Judge on appeal of the respondent, proceeded on the basis of conjectures to hold that these Talbs were not performed. He further submits that judgment of the Appellate Court on the face of the record, runs counter to the evidence on the file, thus, the same is not sustainable. Conversely, the learned counsel for the respondent refuted the assertions of the petitioner and supporting the judgment and decree of the Appellate Court, urged that the petitioner was aware that a share out of joint Khata was sold in favour of the respondent and possession of the land could not be taken without resort to partition proceedings and that share of canal water could not be claimed without intervention of the Canal Authorities and thus, claimed that there was no fun in making such demand by the petitioner, directly from the respondent. In this manner, he submits that story_ of gaining knowledge of the respondent, is mere concoction and has no reality in it, thus, the Appellate Court has rightly concluded that Talbs were not performed by the petitioner. He further submits that there are material contradiction in the statements of P.W.1 and P.W.3 which go to prove that, as a matter of fact, no Talb was performed by the petitioner.
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. The Appellate Court has taken the view that both the acts of taking of possession out of a joint Khata and share of canal water, could not be done without the intervention of the Court or the Canal Authorities, respectively, as such, performance of Talbs and knowledge of sale from the respondent, was not gained by the petitioner as claimed which was consequently disbelieved. These findings are presumptive because even if these facts be admitted as correct, even then possibility of going to the respondent, in this manner claimed by the petitioner, cannot be ruled out. The petitioner besides specific assertion in the plaint in this behalf, himself appeared in the witness-box and in support thereof produced P.W.2 and P.W.3, who materially corroborated his assertion. There is nothing on the file to show that as to why both these witnesses would depose falsely against the respondent, especially when neither they have any interest in the land in question nor are inimical towards him. They were subjected to lengthy cross- examination but impact create by their statements, could not be shattered. Minor discrepancies as pointed out by the learned counsel for the respondent which do not go to the roots of the case and do not relate to performance of Talbs by, the petitioner and are only with regard to situation and coming of the witnesses to the place where Talbs were performed are not .Material enough to wipe of the impact of their evidence. Such minor discrepancies are bound to occur by lapse of time especially when the witnesses are illeterate and belonging to undeveloped, far-flung areas. Talb-i- Muwathibat and Talb-i-Ishhad were performed on 15-1-1998 whereas evidence in the case was recorded on 17-4-2001, after more than three years. In this manner, I find that minor discrepancies, here or there, make no much material effect, all the witnesses are unanimous regarding performance of Talbs by the petitioner. The Hon'ble Supreme Court of Pakistan in the cases of Abdul Malik v. Muhammad Latif (1999 SCM R 717) and Muhammad Gul v. Muhammad Afzal (1999 SCM R 724) mandated through their alighted judgments that pre-emptor making prompt Talb- iMuwathibat and sending notice of Talb-iIsshad, within 10 days, has materially and substantially complied the provision of section 13 of the Punjab Pre-emption Act, 1991. Viewing on this touchstone, the case in hand, I am of the considered view that sufficient compliance of law, has been proved to have been done by the petitioner. Judgment of the Appellate Court proceeds on mere conjecture/ surmises and is based upon suppositions, thus, the same being tainted with illegality and material irregularity, is not sustainable, at law.
7. For what has been discussed above, I accept this revision petition, set aside the judgment and decree, dated 19-10-2002 passed by the Additional District Judge, Jhang, (Camp at Shorkot), with the result that judgment and decree, dated 12-4-2002 passed by the Civil Judge, Shorkot shall stand revived. The petitioner informs that he has already deposited the decretal amount under the decree of the trial Court, hence, no fresh order for deposit is needed. There will be no order as to costs.