' This civil revision assails the judgment and decree dated 15-3-2001 passed by the learned Additional District Judge, Attock whereby the suit for possession through pre-emption filed by the respondent was decreed subject to payment of pre-emption money of Rs,26,647 including the incidental charges by setting aside the judgment and decree dated 13-4-2000 passed by the learned Civil Judge, Attock, dismissing the suit of the respondent.
2. Precisely, relevant facts are that the land measuring 6 Kanals was' sold by one Muhammad Afzal Khan through Mutation No,1380, dated 8-10-1996 in favour of the petitioner, for an amount of Rs,24,000. The respondent claiming his superior pre-emptive right as "Shafi Sharik and Shafi Jar" filed a suit for possession through pre-emption against the said sale; averring that he on 18-1-1997 at 2-00 p.m. Gained knowledge of the sale when he immediately exclaimed his intention of preempting the same. He further pleaded that after making a demand of transfer of land in his name from the petitioner, he dispatched a notice of Talb-i-Ishhad on 20-1-1997 attested by two truthful witnesses, under a postal cover acknowledgement due to the petitioner and by filing the suit he fulfilled all the requirement of law, including the performing of Talb-i-Khashumat. It was also asserted by the respondent in his plaint ' that the sale of land was kept in a guarded secret and the mutation was stealthily got sanctioned, without notice to him.
3. The petitioner being defendant in the suit contested it by filing his written statement wherein he besides refuting the averment in the plaint, urged that he also incurred incidental charges of Rs,8,000 which he is entitled to recover in case of decision in favour of the respondent.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
The learned Civil Judge who was cognizant of the suit, after doing the needful, on the basis of his appraisal of evidence dismissed the suit of the respondent vide his judgment and decree dated 13- 4-2000.
4. The respondent aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge, where he succeeded, as; his appeal was accepted and his suit was decreed, as noted above. Thereafter, the petitioner filed the instant revision petition, which after notice to the respondent, has now been laid for final determination.
5. The learned counsel for the petitioner submitted that evidence of the respondent regarding performance of Talbs was discrepant and there were material contradictions in the statements of P.Ws. Thus, the same could not have been relied for granting the respondent, a decree. He further contended that neither Talb-iMuwathibat was proved on the file nor notice of Talb-i-Ishhad was proved in accordance with law, hence the respondent, extinguished his pre-emptive right if any, in terms of section 13 of the Punjab Preemption Act, 1991. It was further submitted that the respondent did not examine the postman concerned to prove distribution/service of alleged registered notice but a contrary view taken by the appellate Court, is not in accordance with the evidence on the file and thus, the same is not sustainable. He also argued that sanctioning of mutation, in itself was a notice to the respondent who being a co-sharer in Khata in question, should have been presumed to have knowledge of the sale. According to him since the respondent did not make any Talb-i- Muwathibat on the date of mutation, his suit should have been dismissed. In this behalf reliance was made to the judgment in the cases of Muhammad Ramzan v. Lal Khan 1995 SCM R 1510, Muhammad Azad Khan v. Talib Hussain 1998 M LD 1977 and Wilayat Khan v. Muhammad Sharif through Mst. Irshad Bibi and others 2004 CLC 240. It was also submitted on behalf of the petitioner that since Talb-i-Muwathibat was to be made on 8-10-1996 when the mutation was sanctions, notice of Talb-i-Ishhad is hopelessly barred by time.
6. The learned counsel appearing on behalf of the respondent strenuously refuted the arguments of the petitioner, supported the appellate judgment and urged that all the three P.Ws. Examined to prove the Talb-i-Muwathibat are unanimous about the date, time and place of gaining of knowledge by the respondent regarding sale and they have unambiguously deposed that the respondent instantly expressed his intention of pre-empting the sale. He further contended that the respondents proved notice of Talb-i-Ishhad by producing both its marginal witnesses who without any contradiction supported the case of the respondent on making of Talb-i-Ishhad and that service of the notice on the petitioner is proved by independent witness (P.W.1) besides postal Teceipt. He also referred to Exh.P.1, acknowledgment receipt which according to him has been proved by D.W.1 and submitted that signatures of the petitioner on this receipt can be compared with those, appearing on his written statement. A reference to section 129 of the Qanun-e-Shandat Order, 1984, was also made regarding transmission of registered/postal letters. The learned counsel for the respondent also argue that the witnesses coming to the witness-box shall be presumed to be truthful unless otherwise proved and in this behalf, reference was made to the judgment of the Honourable Supreme Court in the case of Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCM R 958. It was also submitted that performance of Talb-i-Ishhad according to the dictum laid down by the Honourable Supreme Court in the cases of Muhammad Gul v. Muhammad Afzal 1999 SCM R 724, has fully been met in the case in hand and that the view taken by the appellate Court is in accordance with the evidence on the file and the law applicable.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, no notice in terms of section 31 of the Punjab Pre-emption Act, 1991 has been issued by the concerned Revenue official and the argument that mutation by itself be considered as a notice to the public at large, is not only contrary to the provisions of Punjab Pre-emption Act, 1991 but if accepted, would make the provision of sections 13, 30 and 31 of the said Act, redundant. The respondent in his plaint has specifically denied notice of sale besides asserting that the mutation was stealthily got sanctioned and in view of these assertions and similar statement while in the witness-box, he cannot be assumed to have notice of the mutation and could not be expected to make Talb-i-Muwathibat on the date of mutation. In the case of Muhammad Ramzan (supra) the pre-emptor being a co-sharer had not claimed that he was not aware of sanctioning of mutation and had not denied its notice, thus, the view taken was that he will be presumed to have a notice but in the case in hand, facts are absolutely otherwise as observed above. Similarly ratio of other judgment relied by the learned counsel for the petitioner is not applicable to the case in hand which proceed on its own circumstances.
8. The respondent in order to prove performance of Talb-i-Muwathibat himself appeared as P.W.3 and materially supported his case set up in the plaint. P.W.4 Haq Nawaz and P.W.5 Abdur Rashid are absolutely unanimous about- the date, time and place of gaining knowledge of the respondent and making of his Talb-iMuwathibat. Attempt of the petitioner to dig out contradictions in their statement, is of no avail as there is no such contradiction going to the roots of the case. As a matter of fact, after gaining of knowledge there were two incidents one of getting information from the Patwari concerned and the other of getting copies of the Revenue Record from; him. In this manner the statements of the P.Ws. Are not discrepant to each other, in any respect. Be that as it may, knowledge of sale was acquired on 18-1-1997 and statement of the P.Ws. Were recorded on 16-2-1999 after lapse of 2 years and if at all there be any minor contradiction, that is neither material nor the same goes to negate the effect of their assertive statements. The Honourable Supreme Court in similar circumstances very graciously held that the minor discrepancies are bound to occur by lapse of time and on the basis of those, statement of the witnesses cannot be discarded. Reference can be made to the case of Abdul Qayyum (deceased) through L.Rs, v.
Mushk-e-Alam and another 2001 SCJ 361.
9. The respondent in order to prove performance of Talb-i-Ishhad examined P.W.1 Muhammad Ibrahim, who came from the Golra Post Office and proved the Acknowledgement Due receipt Exh.P.1 through which notice was received by the petitioner. This witness deposed that the petitioner signed the receipt in his presence. The other witness, P.W.2 Shafiq-ul-Hassan was produced from G.P.O. Attock who proved Postal Receipt No,773 (Exh.P.2) P.W.4 and P.W.5 proved the notice of Talb- i-Ishhad (Exh.P.3) to which no objection by the petitioner was ever raised at the time of its tendering in the evidence. The respondent while in the witness-box as P.W.3 stated that after preparing the original notice its photostat copy was prepared which was signed by him and the other two witnesses (P.W.4 and P.W.5). This notice was received in evidence as Exh.P.3. Both the other witnesses P.Ws.4 and 5 have categorically stated that they signed Exh.P.3. Photostat copy of the notice carrying the original signatures of the respondent and that of the witness shall be considered as original document in terms of provisions of Articles 72 and 164 of Qanun-e- Shahadat Order, 1984. Despatch of notice of Talb-i-Ishhad is proved through postal receipt Exh.P.2, duly proved by P.W.2 which under ordinary course of events, shall be presumed to have reached the destination and distributed to petitioner as deposed by P.W.1 in terms of Article 129, Qanun-e- Shahadat Order, 1984. Signatures on receipt Exh.P.1 (A.D.) and those on written statement of the petitioner, do not only resemble to each other but are by one person thus delivery of notice Exh.P.3 to petitioner is proved to the hilt. For these reasons, I am fully convinced that the respondent proved through positive evidence performance of all the three Talbs, at relevant time and the view taken by the first appellate Court is absolutely in consonance with the record and does not suffer from any illegality or irregularity amenable to revisional jurisdiction.
10. For what has been discussed above, this revisional petition has no merit in it and is accordingly dismissed leaving the parties to bear their own costs.