' Land measuring 21 Kanals was sold by Sharif etc. In favour of the petitioner vide registered sale- deed dated 14-9-1988 for a consideration of Rs.1,21,000. The respondent herein preempted the sale on the ground that she was Shafi Sharik and Shafi Khalit. She also disputed the sale consideration.
2. The suit was contested by the petitioner on a number of grounds. The superior right of the respondent was disputed. A number of objections including that she had not made the Talbs, were raised.
3. The suit was dismissed vide judgment dated 4-9-1990 and the appeal of the respondent was also dismissed on the sole ground that no right of pre-emption was available from 31-7-1986 to 28- 3-1990. She then approached this Court in C.R. No.1713 of 1992 which was allowed vide judgment dated 25-8-1997 of this Court and the learned trial Court was directed to decide the case after recording the evidence.
4. On retrial, the suit was decreed by the learned trial Court vide judgment dated 13-4-1999. It was held that the respondent had a preferential right, she had duly fulfilled the requirements of Talbs and that the sale consideration was Rs.1,21,000. The petitioner filed an appeal which was dismissed vide judgment and decree dated 24-11-2001.
5. The learned counsel for the petitioner contends that the learned two Courts did not even advert to the pleadings of the respondent nor the evidence was considered in the light of the averments of the plaint. He maintained that there was no averment in the plaint that Talb-iMuwathibat was duly made. Reliance was placed on Haji Rana Muhammad Shanbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 and Allah Dad v. Bashir Ahmed and another PLD 2002 SC 488.
6. The learned counsel for the respondent has defended the impugned judgment for the reasons stated therein. According to him the making of Talbs is a question of fact which stands concluded by concurrent findings of fact and, therefore, no interference is possible.
7. The fate of this petition depends on the averments in para.3 of the plaint. The relevant extract is reproduced hereunder:- {{URDU TEXT}} ' The date, time, place and source of knowledge of the sale was not indicated in the plaint. However, while appearing as P.W.1, the respondent pre-emptor asserted that she resided in Lahore and after 5/7 days of the sale she came to the village where on the way to her house, Muhammad Ismail, P.W.2, informed her of the sale and she said that she will pre-empt the sale. This statement is inconsistent with the averments of the para.3 of the plaint, according to which the "Talb- iMuwathibat" was made before the petitioner and not before Muhammad Ismail P.W.2. It was not the case of the respondent either in the plaint or in her sworn testimony that Muhammad Ismail had informed her of the sale in presence of the petitioner. Therefore, the assertion of the respondent in her statement as P.W.1 that Muhammad Ismail had informed her of the sale and before him, she had made "Talb-i-Muwathibat" could not be believed particularly in view of the statement of P.W.2 that he had not come across any other person except the respondent at the time of passing of information regarding the sale in question. The learned two Courts did not even note contents of para.3 of the plaint while holding that the respondents had duly made "Talb- iMuwathibat". It may be noted that when time, date, place and source of information of the sale are not mentioned in the plaint the evidence produced in the case is to be carefully examined. The "Talb-iMuwathibat" is required to instantly made. According to the averments in para.3, the "Talb-i- Muwathibat" was made before the petitioner and not before P.W.2 on getting the information of sale by the respondent. This only leads to one inference that the "Talb-i-Muwathibat" was not promptly made. It may be noted that pleadings in the same suit is not a previous statement to attract the rule of confrontation.
6. For what has been stated above, this petition is allowed, the impugned judgments and decrees are set aside and the suit filed by the respondents is dismissed. No order as to costs.