' JAWWAD S. KHAWAJA, J.---The petitioner/defendant impugns the concurrent decrees of the learned trial Court dated 21-7-2004 and of the learned appellate Court dated 27-9-2004 whereby a suit filed by the respondent/plaintiff seeking possession of the suit-land through preemption has been decreed.
2. The sole issue dispositive of this case is issue No.8 which was framed in the following terms:-- "Whether the plaintiff fulfilled the requirements of Talbs in accordance with law? OPP."
3. In the first round of litigation, the learned trial Court held that the respondent/plaintiff had failed to prove this issue. His pre-emption suit was, therefore, dismissed. However, in appeal, vide order dated 11-11-2002, the decree of the learned trial Court was set aside and the matter was remanded for decision afresh on Issue No.8.
4. In the second round of litigation, the learned trial Court has held that the issue has been proved by the respondent/ plaintiff. Learned counsel for the petitioner has argued that the learned Courts below have misread the evidence inasmuch as the statement of Alam Sher (P.W.4), who was the alleged informant of the sale, cannot possibly be construed in the manner set out in the judgment of the learned trial Court. The relevant portion of the statement of Alam Sher has been reproduced in the judgment of the learned trial Court. It is evident from the testimony of Alam Sher, if read as a whole, that he received knowledge of the sale in the morning of 30-5-2002 and he gave information of the same to the respondent/plaintiff at around 4-00/5-00 p.m. The same day.
However, the respondent/plaintiff and Alam Sher have also stated that the information of the sale was received by the respondent/plaintiff on 31-5-2002. Learned counsel contends that in view of the clear testimony of Alam Sher (P.W.4) read with the testimony of the respondent/plaintiff, who appeared as P.W.2, it is clear that information of the sale was given to the \respondent in the evening of 30-5-2002, but he made the Talb-e-Muwathibat on 31-5-2002 and, therefore, the Talb- eMuwathibat was not in accordance with the provisions of section 13 of the Punjab Preemption Act.
5. Apart from the above material discrepancies there are significant contradictions between the testimony of witnesses produced by the respondent/ plaintiff which go to show that the two witnesses of Talb-e-Ishhad, namely, Alam Sher (P.W.4) and Muhammad Khan (P.W.3) are not truthful witnesses.
6. I have heard learned counsel for the respondent, who has laid stress on the fact that the learned Courts below have appraised fully the evidence of the P.Ws. In relation to Talbs. He argued that the scope of revisional jurisdiction was limited and did not require a reappraisal of evidence and nor was it meant for the purpose of substituting the opinion of the revisional Court for that of the Courts below. As a general legal proposition, there can be no cavil with this argument. Indeed, the case- law cited by learned counsel for the respondent enunciates this principle. However, where there has been misreading of evidence or where an important aspect of the case has not been taken note of by the Courts below, this constitutes material irregularity in the exercise of jurisdiction by the Courts below. Such irregularity is always amenable to correction through exercise of revisional jurisdiction.
7. In the present case, the first sentence of the examination-in-chief of Alam Sher (P.W.4) and the second sentence of his cross-examination leave no room for doubt, at all, that P.W.4 has not only contradicted himself but has also contradicted the other P.Ws. Since the onus of proof of Issue No.8 was on the respondent/plaintiff, any material contradiction in the testimony of P.Ws. Such as the contradiction noted above, cannot be brushed aside.
2. The learned trial Court has spent a lot of time trying to explain the contradiction in the testimony of P.W.4 as to the date when he gave information to the respondent/plaintiff. It has observed that the other witnesses have consistently supported the contention that information of the sale was received by the respondent/ plaintiff on 31-5-2002. The learned trial Court has further made the odd and legally untenable, comment that the petitioner/ defendant had not produced any evidence to prove that the respondent/plaintiff had received information of the sale a day prior to 31-5-2002.
3. It is by now well-settled that it is for the plaintiff to discharge the onus of proving timely Talbs. The significance of making Talb-e-Muwathibat, immediately upon getting knowledge of a sale, is clear from the express wording of section 13 of the Punjab Pre-emption Act. It was not, therefore, necessary for the petitioner/ defendant to produce evidence on Issue No.8 if the respondent/plaintiff's own witnesses had not been consistent in pinpointing the exact time when information of the sale was given to the respondent/plaintiff.
10. Learned counsel for the respondent also argued that in his cross-examination P.W.4 should have been confronted with the statement made by him in the first sentence of his examination-in- chief. This argument is misconceived on two counts. Firstly, the cross-examination of this witness itself established the contradiction in his testimony. It was not for the petitioner to go any further to enable the witness to retract from any part of his testimony or to attempt to reconcile the contradictions which became apparent in cross-examination. Secondly, one of the important purposes of cross-examination is to elicit the correct facts from a witness and also to question the probity of a witness. There was, thus no occasion for the petitioner to have asked P.W.4 for any clarification in respect of the contradictory statements made by him.
11. In view of the above discussion, I find that there has been serious misreading of the evidence by the learned Courts below. Furthermore, the law has also been misapplied inasmuch as the petitioner/ defendant has been penalized for not producing evidence in respect of Issue No.8. The decrees of the learned Courts below are, therefore, not sustainable and are hereby set aside. As a consequence, the suit filed by the respondent/plaintiff stands dismissed.