' The respondent, filed a suit for pre-emption against the petitioner, stating in the plaint that, he learnt about the impugned sale dated 13-12-1994 on 20-2-1995 through Muhammad Yar at 7-00 p.m. And made Talb-e-Muwathibat, whereafter, the notice of Talb-e-Ishhad was issued on 26-2- 1995. The suit was contested by the petitioner. Issues were framed, parties were put to trial and the learned trial Court, allowed the suit by rendering its findings on all the material issues in favour of the respondent. It may be relevant to mention that, on the proposition of superior right, in fact, the petitioner conceded the claim of the respondent throughout and the only contest remains between the parties is about the Talbs, on which, there is a concurrent finding of facts recorded by the two Courts below in favour of the respondent and against the petitioner.
2. The learned counsel for the petitioner contends that, such finding is the result of misreading and non-reading of the evidence, the learned Courts below have not at all adverted to the statements of two witnesses. P.W.1 the plaintiff and P.W.2, Muhammad Yar, which when read collectively, fails to establish Talb-e-Muwathibat. It is stated that the contradictions and the discrepancies in the statements of these two witnesses have been glaringly overlooked by the learned Courts below.
3. I have heard the learned counsel for the parties and find that, in the plaint, the respondent has given a definite time of 7-00 p.m., when he learnt about the sale from Muhammad Yar on 20-2- 1995. However, when Muhammad Yar appeared as witness, he in his examination-in-chief stated that, it was before "Mughrib' prayer. This means that, there is a contradiction and discrepancy in the statements of both the witnesses. Had the respondent not chosen to give the definite time in the plaint, such discrepancy would not have meted. But in view of the assertion in the plaint, it has some significance, when considered in the light of the other contradictions in the statements of these two witnesses; such as, the respondent, while appearing as witness stated that when Muhammad Yar disclosed him about the sale, no one else was present, but Muhammad Yar as P.W.2 categorically and in clear and unequivocal terms has stated that, two other persons were also present; not only that, he has given the names of these persons as Wali Muhammad and Ghulam Rasool. I do not understand, why the respondent has lied in this behalf, "when his witness P.W.2 has admitted". Obviously, it seems that those two persons would not have supported the respondent and thus, a presumption can be safely raised against the respondent of withholding the best evidence.
4. There ' is no independent proof about the making of Talb-e-Muwathibat except the statement of P.W.2. P.W.2, Muhammad Yar admittedly, is the first cousin of the petitioner. When he was questioned, as to where he did attain the knowledge about the sale, he vaguely stated that, while sitting at the shop of blacksmith in the Deh, some unknown person disclosed the fact. He has not been able to give the name of such person, day and the time, when the sale came to his knowledge. However, from his statement, it seems that, it is a day before 20-2-1995. But the fact remains that, such a vague statement leads to a probability that Muhammad Yar was in fact making a false statement of learning the sale at the shop of blacksmith. Had it be so, either the blacksmith or any one from the persons, present at the shop, could be examined including the person, who disclosed about the sale. All these aspects of the statements of these two witnesses have not been taken into account by the two Courts below. Thus, it is a case of sheer misreading and non-reading of the evidence.
5. On the basis of what has been highlighted above, I have come to the conclusion that the respondent has failed to prove Talb-e-Muwathibat, which condition is sine quo non for sustaining and enforcing a right of pre-emption, therefore, even if, the notice of Talb-e-Ishhad has been proved, yet the respondent is not entitled to the decree for pre-emption in his favour. Resultantly, by allowing this petition, setting aside the impugned judgments and decrees and reversing the findings of the Courts below on the issue of Talbs, the suit filed by the respondent, is dismissed with costs throughout.