' MAIN SAQIB NISAR, J.---Both the R.S.A. No,53 of 2000 and Civil Revision N o.924 of 2000, are being decided together, as the fact of the civil revision, is dependent upon the decision of the R.S.A.
2. The suit for the pre-emption filed by the appellants against the respondent Musarrat Hussain was allowed by the learned trial Court vide judgment and decree dated 15-2-1996. However, the appeal of the respondent has been accepted and by reversing the decision of the trial Court the suit has been dismissed on 9-12-1999.
3. Briefly stated the facts of the case are that, Musarrat Hussain,the predecessor-in-interest of the respondent filed a suit for the specific performance of an agreement to sell regarding land measuring 445 Kanals and 17 Marlas against Mst. Jamil Khatoon and others which was decreed in his favour of 10-10-1989.
4. The appellants on 28-7-1990, brought a suit for the pre-emption against Musarrat Hussain, challenging the above sale on the ground that, they are the co-share:s of the said property and thus, have the preferential right to purchase the same. It is their case that, they came to know of the sale on 10-6-1990 through Sufi Ghulam Qasim (P.W.1) and Noor Din, in whose presence, they asserted the Talb-e-Muwathibat; notice of Talb-e-Ishhad was issued to the defendant on 24-6- 1990 followed by the pre-emption suit. The matter was contested by the defendant, and as many as 14 issues were issued, the parties were put to trial and the learned Civil Judge by deciding all the issues in favour of the pre-emptor/plaintiff, allowed the suit through the judgment and decree dated 15-2-1996. The judgment and decree when challenged in appeal, has been reversed on 9- 12-1999 by the learned Court of appeal by giving findings on issue No,2, whereas the findings on the other issues have been maintained. The said issue, on the basis of which, the appellants have been non-suited, is pertaining to the making of Talbs.
' The view taken by the learned Court of appeal is that they have failed to establish Talb-e- Muwathibat and Talb-e-Ishhad; because they have failed to specifically mention the date, the time and the venue in the plaint in this behalf and the fact also remained unproved through the plaintiff's evidence. Besides that, one of the two persons, through whom the appellants claim to have attained the knowledge about the sale, has not been examined and that, there are discrepancies in the statements of the plaintiffs witnesses, which has serious reflection upon their case.
5. Learned counsel for the appellants contends, that such findings of the learned Court of appeal are based upon misreading and non-reading of the evidence. It is stated that, Sufi Ghulam Qasim, one of the persons, who informed the appellants about the decree on 10-6-1990, has duly appeared as P.W.1 and has stated in an unequivocal terms about his passing on the requisite information to the plaintiffs and their assertion of Talb-e-Muwathibat, he is also a witness of Exh.P.l., the notice of Talb-e-Ishhad got issued by the plaintiffs to the defendant on 24-6-1990 and has testified that the said notice was signed by him, the other witnesses and all the pre- emptors/plaintiffs; no significant cross-examination has been conducted on this witness to establish that he was making a false statement; resultantly, from the statement of P.W.1 read with the statement of Irshad Ali one of the plaintiffs, Talb-e-Muwathibat stands fully established.
6. I am afraid, it is not so. The learned Court of appeal has given valid reasons for its findings the first Talb has not been established by the appellants/plaintiffs. I endorse all such reasons except that, no inference could be drawn against the appellants if the requisites of the Talbs such as the date, the time and the venue have not been mentioned in the plaint, if the fact was otherwise proved through the evidence. However, on reading of the statement of P.W.1 Ghulam Qasim, who is the only independent witness on the subject, I do not find his sole testimony as safe and reliable. He in his examination-in-chief has not disclosed, as to who apprised him about the decree in favour of the respondent Musarrat Hussain. He has also not specified the day, the date, the year and the time, when he informed the appellants about the factum of sale. In the cross-examination, he stated the defendant Musarrat Hussain told him about the decree. This is most improbable that the defendant himself would invite the pre-emption action against him by telling it to any third person.
Moreover, when Musarrat Hussain has appeared as a witness in this case, he has not been confronted that he had told Ghulam Qasim about the factum of the decree. It may also be pertinent to state here that, in his statement, P.W.1 claims that he along with Noor Din had apprised the appellants about the sale. Noor Din for no reasons, has not been examined. Obviously, the presumption of withholding the best evidence can be drawn against the appellants. It mayalso be pertinent to state here that, out of the seven, four appellants are Pardanashin ladies, None except Irshad Ali has come forward to prove that they made Taib-e-Muwathibat. Irshad Ali though has appeared as P.W.4, but he has not examined himself as the attorney of the other plaintiffs. The general statements of Ghulam Qasim and Irshad Ali, to my mind, are not enough to prove that, the factum of sale was disclosed to all the plaintiffs including the ladies and they all had made Talb-e- Muwathibat. In the above circumstances, I concur with the learned Court of appeal that the appellants have not been able to prove Talb-e-Muwathibat.
7. As far as the question of Talb-e-Ishhad is concerned, the notice C brought on the record as Exh.P.1 by the appellants themselves, does not bear the signatures of all the appellants, particularly the signatures/ thumb-impressions of three out of the four ladies are missing. Therefore, it is not proved, if such ladies had also made the second Talb, which is a sine qua non for maintaining the right of pre-emption. It may also be pertinent to state here that, the D.W.2 Bahadar Khan the clerk of the counsel namely Ahmed Khan Bahadar, who is the scribe of Exh.P.1, has in clear and unequivocal terms stated that the said document is in his handwriting and that the time when it was prepared, only Irshad Ali had come to and instructed and that none of the other plaintiffs was present. Though he has been subjected to lengthy cross-examination, but it has not been suggested to him that Exh.P.1 is not written. Now when this witness states that only Irshad Ali had come and instructed him and has got prepared Exh.P-1., which was not signed by all the plaintiffs and that, Irshad Ali two weeks after Exh.P.1 had got another notice of Talb-e-Ishhad prepared/issued and when he has not been subjected to cross-examination on this point, the legal position would be, that his statement would be deemed to have been admitted. Therefore, I uphold the findings of the Appellate Court on this part of the issue of Talbs as well. Resultantly, the appeal is accordingly dismissed.
8. As regards the Civil Revision No,924 of 2000, the suit was for the whole land measuring 445 Kanals and 17 Marlas. But the decree, which seems to be the result of consent between the parties to that suit, postulates that it was for 445 Kanals as sale passed in pursuance of the specific performance of the agreement, but for the remaining 17 Marlas, it purports to be the gift in favour of the wife of the Mussarat Hussain. The petitioners also challenged this separately alleging that, the gift too is the sale but has been manoeuvred to prevent the pre-emption action, by him. This suit has been dismissed and the appeal of the petitioners also failed. Now as the appellants/pre- emptors have not been able to establish the Talbs in the connected R.S.A., which has been dismissed and their suit fails, obviously notwithstanding any other reasons, thepresent petition is liable to be dismissed for the lack of locus standi to l E file the suit and the Civil Revision.
Appeal and .