1. MEHTA KAILASH NATH KOHLI, J.---This petition has been directed against judgment passed by Majlis-e-Shoora, Khuzdar on 30-12-2005 dismissing appeal filed by the petitioner against judgment and decree, dated 28-10-2005 passed by Qazi, Khuzdar whereby suit of possession through pre- emption has been directed to be dismissed.
2. Facts of the case in brief are that a civil suit for possession through pre-emption No.8/2005 was filed by the present petitioner in respect of lands situated in Khuzdar details whereof are given in the title of the plaint and need not be mentioned here. It was stated in the plaint that the disputed property is situated in the centre while his lands are contiguous and adjacent. It was further stated that the petitioner is also irrigating his land from water which is having passage from the said lands. In the plaint it was averred that in the year 1989 he had purchased the lands and made respondent No.1 as partner in the same and remained in possession while the said lands were purchased from one Ghulam Nabi 'son of Atta Muhammad. It was further stated that the disputed lands remained vested with Ghulam Nabi. Claim set up in the plaint was that Ghulam Nabi had sold the said lands to Khuda Bakhsh while now Khuda Bakhsh has sold the lands to respondent No.1, who is his partner and the said transaction was carried out without his knowledge. It was also claimed that it was required to be purchased by the defendant jointly as he was his partner. It was also stated that Abdul Majeed son of Maula Bakhsh about one week ago came to his house and informed that Khuda Bakhsh has sold the land in dispute to defendant on which the present plaintiff had claimed his right of Shufah. He had also stated that he had claimed Shufah in presence of witness was made witness. It was evening time and he could not go to the house of the defendant and on the next day i.e. 9-3-2004 early in the morning he had asked defendant No.1 in Bazar before Salaam he claims Shufah and whatever amount he has paid he should take and return the property but he has refused the same. Written statement was filed by the defendant No.1, who had repudiated the claim of the present petitioner and stated about the details of the property purchased from defendant No.2 and Sardar of Sasoli. It was also stated that the properties have been partitioned and there is no question of any partnership. Talbs were also denied in the written statement. Respondent No.2 also denied the claim of the present petitioner of entitlement on the ground that lands are not contiguous as well as partnership. It was stated by him prior to sale of the property he has informed the plaintiff about sale of disputed land. On the basis of the pleadings of the parties following issues were framed:-- "(I) Whether suit was within time?
(II) Whether proper court-fee was paid?
(III) Whether plaintiffs' land was contiguous to pre-empted land on Eastern and Northern boundaries; and whether water channel irrigating plaintiffs' land passed through pre-empted land entitling plaintiff to right of pre-emption?
(IV) Whether plaintiff had performed Talb entitling him under law and Shariat to claim right of pre- emption? OPP
(V) Whether boundaries given in the plaint were incorrect?
(VI) Whether joint land between plaintiff and vendee/respondent No.1 had been partitioned before sale transaction and further the pre-empted land was contiguous to lands of vendee/respondent No.1 but at a distance from land of plaintiff/pre-emptor? OPD
(VII) Whether vendor/defendant No.2 had offered sale of pre-empted land to plaintiff which was declined? OPD Defendant No.2
(VIII) Whether suit-land was valued at Rs.70,000? OPD
(VI) Relief.
3. To support the case, the plaintiff/petitioner produced P.W. Wahid Bakhsh son of Maula Bakhsh, P.W.2 Haji Muhammad Yaqub, P.W.3 Muhammad son of Shafi Muhammad, P.W.4 Muhammad Yaqub son of Qadir Bakhsh, P.W.5 Ghaus Bakhsh son of Muhammad Ali, while the statement of P.W.6 Muhammad Karim son of Khan Muhammad, statement of plaintiff Haji Hassan Ali was recorded. The defendants produced Abdul Karim, D.W.2 Yar Muhammad and statement of defendant Haji Abdullah son of Pir Bakhsh was recorded.
4. The learned trial Court vide judgment and decree dated 28-10-2005 while holding (i) that the suit is within time and resolving the issue in favour of the plaintiff, (ii) proper court-fees has been affixed, (i.e) holding that the property is not situated adjacent to the disputed property and deciding issue against the plaintiff, (iv) the plaintiff having failed to prove the Talb-i-Mawasibat and Talb-i-Ishhad
(v) the issue with regard to boundaries resolved in favour of the defendants as there is apparent contradiction in the boundaries provided by the plaintiff and the evidence produced in this behalf.
5. Issue No.6 was decided against the plaintiff, while issue No.7 with regard to sale when plaintiff was informed whether right of Shufa is not available was decided in favour of plaintiff and the value of the property or transaction struck was assessed to Rs.70,000. As a consequence of findings recorded on Issues Nos.3, 4, 5, 6 and 8 suit was dismissed.
6. Against aforementioned judgment and decree an appeal was filed before Majlis-e-Shoora, Khuzdar which also was dismissed by the learned appellate Court. Against concurrent findings of fact the present petition has been filed.
7. The matter was fixed, for Katcha Peshi when the learned counsel for the petitioner was called upon to show any misreading of record or any illegal exercise of jurisdiction materially affecting the judgments of the lower Courts, the learned counsel for the petitioner stated that it is not requirement of law that the Talb-i-Mawasibat is to be proved in stricto senso. It was further stated that the statement of P.W.6 and the statement of plaintiff is sufficient to establish the factum of Talb-i-Ishhad as such the learned Courts below have erred in conclusion that Talbs have not been proved. It was also contended that there was no need of referring Talb-i-Mawasibat at the time of Talb-i-Ishhad as such the findings are not correct in law.
8. I have considered the arguments advanced by the learned counsel for the petitioner and perused the record.
9. It is an admitted feature of the case that the plaintiff while making statement in witness-box had categorically stated that two persons named Abdul Majeed and Mir Mirza had come to his house and had informed about the sale of the property from Ghulam Nabi to Khuda Bakhsh and then Khuda Bakhsh to Abdullah, whereupon Abdullah whether executed document or not answered by the plaintiff. It was further stated by the plaintiff that on 9-3-2004 these two persons named above had come to his house while Abdullah, Khuda Bakhsh and Ghulam Nabi had not informed him about sale whereupon the plaintiff had claimed Shufah. It was further stated that he went to house of Abdullah who did not meet him and he came to know that he has gone to Khuzdar and met him in Bazar and before Salam he had asked that he has purchased property from Khuda Bakhsh and Sardar Sasoli and also from Ghulam Nabi, the plaintiff offered the cost of the land in front of Muhammad Karim son of Khan Muhammad which was denied. Therefore, he talked to Sardar Sasoli who assured to bound down Abdullah.
10. From perusal of the above statement is quite clear that the plaintiff had asserted Talb-i- Mawasibat in presence of witnesses as named Abdul Majeed and Mir Mirza and now it was the duty of the plaintiff to have produced the said two witnesses in order to prove Talb--i-Mawasibat.
11. Although particular number of witnesses are not required to be produced but when it is alleged the same is to be proved as a fact on denial by the defendant, then the statements of witnesses become necessary. Reference to a judgment reported in Muhammad Mal Khan v. Allah Yar Khan 2002 SCM R 235 is reproduced as under: "No inflexible rule can be laid for application of certain rule in a judgment to every and each case as each case proceeds on its own diverse facts. Although it is not necessary to mention the name of the person in the plaint in whose presence Talb-i-Muwathibat was made, but in this case the plaintiff admitted in his cross-examination that he had made Talb in presence of Tayyab Khan but he failed to produce him as his witness. It was also not clarified/explained by the plaintiff in his statement as to why Tayyab Khan could not be produced as it was not stated that he was either won over by the other side or that he had turned hostile towards him for some other reasons or that out of fear of the defendant or for some other consideration the defendant was successful to prevent him to depose in favour of the plaintiff. Article 129(g) of Qanun-e-Shahadat reads:-- "That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
12. Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him."
13. Now the second question as to whether the plaintiff' has been able to successfully prove the Talb- i-Ishhad which is mandatory requirement of law, the learned trial Court had concluded that the Talb-i-Ishhad must refer to factum of performance of Talb-i-Mawasibat and the certain requirements have been laid down for proving the said part of the evidence. It is an admitted feature of the case that the said witness had not referred nor the plaintiff referred the Talb-i- Mawasibat while making Talb-i-Ishhad. Even the plaintiff himself had never referred to Talb-i- Mawasibat being made in presence of two witnesses who also have not been produced. The Honourable Supreme Court of Pakistan in the case of Haji Qadar Gul v. Moembar Khan and others held mandatory requirement for establishing a suit wherein it is concluded in the following terms, which is reproduced herein below: "The requisites of valid `Talb-i-Ishhad' and conditions necessary therefore are...
(1) It must be made in presence of at least two witnesses. (Pachumuddin Nayek v. Abdul Ghaffar and others AIR 1937 Cal. 283).
(2) It should be made with a little delay as possible in the circumstances. (Muhammad Raza Ali Khan v. Muhammad Israr Hassan Khan AIR 1929 All. 459).
(3) A reference should be at the time of Talb-i-Ishhad (second demand) to the fact that Talb-i- Muwathibat (first demand) had previously been made. (Rejjub Ali Chopedar v. Chundi Churn Bhadra and others ILR 17 Cal. 453).
(4) Demand of pre-emption may be made to the vendee or to his agent or to the vendor or on the premises sold on different circumstances. (Faqir Shaikh v. Syed Ali Sheikh and others AIR 1955 Cal.
14. 349)."
15. The above requirements of Talbs as provided by law have not been proved on record nor the number of witnesses required for Talb-i-Ishhad have been produced. The present petition has been filed against concurrent findings of fact and no misreading, non-reading or irregular c exercise of jurisdiction has been shown and thus, the Courts below had rightly dismissed the suit holding inter alia that valid Talbs were not proved on record. Resultantly petition has no merit is dismissed in limine.