' MIAN SAQIB NISAR, J.---The respondent filed a suit for the pre-emption against the petitioners, which was contested; issues were framed; parties were put to trial and the learned Civil Judge, vide judgment and decree dated 19-6-2002, dismissed the suit, holding that the respondent has failed to prove the Talbs, as required by the law. The view of the learned Civil Judge was that the mutation of sale was attested on 9-1-1999 whereas the Talb-i-Muwathibat is stated to have been made on 9-3-1998, which predates the sale; besides, on merits, the plaintiff has also failed to produce any independent evidence about the making of the Talb-i-Muwathibat; even Muhammad Arif, the informer, has not been examined, therefore, on both the counts, the suit failed. The respondent preferred an appeal, which was accepted vide judgment and decree dated 5-4-2003, and the learned appellate Court has held that the sanction of the mutation is manifestation of the sale, which earlier took place, when the sale mutation was entered and it was prior to 9-3-1998, resultantly, the first Talb at that time, was properly and legally made; however, on merits, it is held that if Muhammad Arif, informer was not examined by the respondent/plaintiff, he should have been produced by the petitioner/defendant, so as to disprove his case on Talbs.
2. I have heard learned counsel for the parties. As far as the view of the learned Court of appeal about the sale is concerned, obviously, in the light of the judgment reported Shahadat Khan v.
Zulfiqar and others (2004 YLR 2461), the sale has taken place at the time of the entry of the mutation and therefore, irrespective it was sanctioned on a later date, the respondent could validly make the Talb before the date of sanction. But as for the merits of the case is concerned, I am not convinced, if the respondent has been able to prove his case through independent evidence, because the allegations contained in the plaint, are no proof of the facts stating therein; the respondent in paragraph No,5 of the plaint, in very clearly and unequivocally terms has mentioned that on 9-3-1998, at the time of sunrise, he was informed by Mahr Muhammad Arif that the sale has been made. He does not name any person being present over there, therefore, the only and the best evidence available to him was that of Muhammad Arif and there is no explanation for such an omission. Even if the apprehension of the respondent as expressed today was that Muhammad Arif, who is the son of the vendor, might give the statement against him, still he should have been examined, and had he deposed otherwise, could have been declared hostile enabling the plaintiff to cross-examine him, but this procedure has not been followed. Thus the statement of the plaintiff alone can never be considered as sufficient and independent proof to discharge the onus upon the issue of Talbs, because obviously he learnt about the sale and the means/person through which, it is discovered becomes most relevant, especially when according to the plaintiff, there was none else present, at the relevant time, consequently, the learned trial Court was right in holding that the respondent has not proved Talb-i-Muwathibat and the view taken by the appellate Court that the petitioner should have examined Muhammad Arif, is baseless and erroneous, because as the plaintiff of the case, it was the duty of the respondent/plaintiff to discharge the onus of Talbs, which was upon his shoulder and any lapse or weakness of the respondent/plaintiff, cannot strengthen his case, upon an essential fact, which he has failed to initially prove. Therefore, the impugned judgment and decree of the learned appellate Court is set aside and that of the learned trial Court is upheld with the result that the suit of the respondent stands dismissed. This petition is accordingly allowed.