' MAULVI ANWARUL HAQ, J.---Vide Mutation No. 255 attested on 15-12-1994 the respondents purchased the suit land. On 30-3-1995 the appellants filed a suit for possession of the suit land by preemption. According to the plaint, the land had been sold for Rs.9,00,000 but an amount of Rs.13,40,000 has been fictitiously shown as the sale price. Performance of Talbs was pleaded. The superior right of pre-emption was claimed on the basis of being co-sharers in the suit land and shares in the amenities. The respondents in their written statement pleaded that the appellant was fully aware of the sale and, in fact, he was present when the negotiations were conducted. They insisted that they have purchased the land for Rs.13,40,000. The other contents of the plaint were denied. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 16-12-1997 subject to deposit of Rs.13,40,000 as the price and a further sum of Rs.108,537 towards the incidental charges. A first appeal filed by the respondents was allowed by a learned ADJ, Burewala, on 3-4-2003, holding that the Talbs have not been performed. Resultantly, the suit filed by the appellant was dismissed.
2. Learned counsel for the appellant contends that the evidence on record has been misread by the learned ADJ. They insist that the admission attributable to the appellant that the respondents were in possession of the suit property since the attestation of mutation was wrong and this was apparent on the face of the record. According to them, there is no discrepancy in the statements of the P.Ws. In the matter of service of notices of Talb-i-Ishhad, they relied on the case of Muhammad Yousaf v. Ghulam Muhammad and 5 others 2002 YLR 3764. Learned counsel for the respondents, on the other hand, vehemently urges that the admission regarding possession having been made on oath in the witness box, the same is conclusive evidence of the facts admitted and the inference drawn by the learned ADJ that the appellant was in possession from the date of attestation of mutation is lawful. He has also tried to argue that the co-ownership has not been proved. He then stresses that an informer could not have been the witness of Talb-i-Ishhad.
According to him, the report of refusal on the envelops ought to have been proved by producing the concerned postal official as the respondents had denied the receipt of notices. According to him, the notices were never taken out of the envelops and tendered in evidence as such.
3. I have gone through the records, with the assistance of the learned counsel for the parties. Before proceedings further, I may note here that Exh. P.45 is the copy of Register Haqdaran Zamin for the year 1993-94 pertaining to the suit land and Ashiq Hussain vendor as also Abbas Ali Shah the appellant are duly recorded as co-owners in the suit land. The appellant, therefore, has a superior right of preemption there being no evidence in rebuttal.
4. Now so far as the Talbs are concerned, it was stated in the plaint that the appellant came to know about the sale on 4-1-1995 through Syed Abid Hussain Naqvi in presence of Noor Muhammad and Syed Wazir Ali Shah and he at once declared that he has a superior right of pre-emption.
Thereafter, he issued written notices attested by witnesses to the respondents under registered cover A.D. Copies of the notices, postal receipts and the envelops received back with refusal reports were appended with the plaint.
5. Now P.W.1 is the appellant himself. Abid Hussain, the informer, is P.W.2. Noor Muhammad who was also present at the relevant time is P.W.3. The statements of these witnesses have been examined by me thoroughly with the assistance of the learned counsel for the parties and I have not been able to find out any material discrepancy in the same with reference to the date, time and place of the making of the first Talb. The P.Ws.2 and 3 are also attesting witnesses of the notices, the copies whereof were tendered as Exhs. P.15 to P.28. There is no denial that the notices were correctly addressed. Postal receipts have been appended and produced as Exhs. P.24 to P.42 while the copies of the registered cover with A.D. Receipts are Exhs.P.1 to P.14. To my mind sufficient compliance of the statutory provisions has been made by the appellant before approaching the Court with Talb-iKhusumat.
6. I may also note here that the learned ADJ has failed to read the file while observing that only one attesting witness has been produced whereas both P.Ws. 2 and 3 are the attesting witnesses of the said notices. The learned counsel has not been able to substantiate his contention that an informer cannot be a witness to notice of Talb-i-Ishhad. Now the qualifications for such witnesses are laid down in section 13 of the Punjab Preemption Act, 1991, itself and these are that they should be truthful. For this they subjected themselves to cross-examination in the witness box by the respondents and as noted by me above, there is nothing on record to suggest that they have made false statements.
7. Now this leaves the reasoning of the learned ADJ with reference to the said admission made by the appellant as P.W.1. I may note here the relevant portion of his statement which is as under;--
8. {{URDU TEXT}}Now before I proceed further, I may note here that the plea taken by or on behalf of the respondents in the statement of Bashir respondent No.1 as D.W.1 was as follows. In the beginning of the examination-in-chief, he stated:- {{URDU TEXT}}A few lines thereafter he states as follows:-- {{URDU TEXT}} ' I also deem it proper to refer to answers to some questions put to D.W.1 in cross-examination:-- {{URDU TEXT}}
9. It will, thus, be seen that the said admission attributed to the appellant as P.W.1 is not only wrong in law but also in fact. The reason being that the mutation was admittedly attested on 15-12-1994.
By now it is well settled that in the Punjab there are two crop seasons i.e. Rabi and Kharif. It has been finally laid down by the Honourable Supreme Court of Pakistan in the case of Malik Pir Bakhsh and others v. Ali Muhammad 1992 SCM R 1031 with reference to some earlier appeals (detailed in para.9 of the judgment at page 1035) that in Punjab and N.-W.F.P. Kharif season begins from Ist of May and Rabi begins in October. There was, thus, no question of land being given on contract basis by the respondents to the said person on the day the mutation was attested.
10. In a pre-emption suit, in fact, while deciding the precise question as to when the possession was taken, their Lordships of the Honourable Supreme Court of Pakistan in the case of Berkhurdar v.
Muhammad Razzaq PLD 1989 SC 749 with reference to an earlier judgment in the case of Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 held that an admission which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on the person making it.
11. Now in view of the evidence on record, in fact, the plea taken by the respondents themselves that they had taken the land on contract basis from the vendor a year before the sale, the said admission by all means is wrong in point of fact and in any case has been made in ignorance of the legal rights of the appellant and consequently is not binding upon him and does not qualify to be an admission within the meaning of the Qanun-e-Shahadat Order, 1984, to be conclusive and binding.
12. Having, thus, examined the records and for the reasons noted above, this RSA is allowed. The impugned judgment and decree dated 3-4-2003 of the learned ADJ, Burewala, is set aside and the one passed by the learned trial Court on 16-12-1997 is restored. However, no orders as to costs.