SARDAR MUHAMMAD ASLAM, J.---This civil revision is directed against the concurrent findings of fact recorded by the learned Courts below in a suit for possession filed by the petitioner/pre- emptor dismissing her suit for not establishing performance of Talb-i-Muwathibat.
2. The learned counsel for the petitioner contends that the pre-emptor has proved performance of Talb-i-Muwathibat by examining P.W.1 Rozdar and P.W.2 Abdul Razaq, whose evidence has been misconstrued.
3. Conversely, the learned counsel for the respondent argued that the statement of P.W.1, who is husband of the petitioner, was not admissible in law and, thus, rightly ruled out of consideration by the learned Courts below.
4. Heard. Record perused.
5. Suit for possession by way of pre-emption was contested by the respondent by filing his written statement, which gave rise to framing of issues. Evidence was produced. P.W.1 Rozdar, special attorney and husband of the pre-emptor, stated that on acquisition of knowledge by the pre- emptor, she declared to pre-empt the same. P.W.2 Abdul Razaq corroborated the statement of P.W.
And deposed that the plaintiff was informed of the sale transaction and she performed Talb-i- Muwathibat by declaring that she will pre-empt the property in dispute. Though P.W.2 did not state performance of Talb-i-Muwathibat in his examination-in---chief but in cross-examination he stated of performance of Talb-i-Muwathibat by the pre-emptor. One Nazir was Informer. He appeared as P.W.3 and stated of imparting information to the pre-emptor of the sale. Statements of P.W.1, P.W.2 and P.W.3 were not even questioned through a bare suggestion that she did not perform Talb-i-Muwathibat.
6. The vendee/defendant appeared as D.W.1. He did not state anywhere of non-performance of Talb-i-Muwathibat by pre-emptor. He examined Haider Zaman D.W.2, who witnessed the bargain of sale finalized against a consideration of Rs.1,00,000.
7. Pre-emptor's right of pre-emption was held to be superior by both the learned Courts below while returning its findings on Issue No.5. As far Issue No.7 is, concerned, the learned counsel for petitioner stated in Court that he accepts ostensible sale price mentioned in the sale-deed as Rs.1,00,000 and payment of registration-charges to the tune of Rs.12,000. Issue No.7, thus, stands decided in view of the statement of the learned counsel for the pre-emptor. The learned Appellate Court reversed findings on Issue No.1. Findings on Issue No.3 were recorded against the vendee/defendant. The same have not been disputed by the respondent in this civil revision. Issues Nos.4 and 7 stands decided in view of the statement of the learned counsel accepting the ostensible sale price mentioned in the registered sale-deed and payment of registration charges to the tune of Rs.12,000.
8. The learned trial Court found that the pre-emptor failed to prove Talb-i-Muwathibat and Talb-i- Ishhad while returning its findings on Issue No.6. The Appellate Court in its impugned judgment observed that the pre-emptor succeeded in performance of Talb-i-Ishhad but failed to prove Talb-i-Muwathibat and, thus, dismissed his appeal. Findings of the Appellate Court in rejecting statement of P.W. Husband of the pre-emptor is not sustainable in law. He appeared on instruction of the pre-emptor. His statement was supported by P.W.2 Abdul Razaq and P.W.3 Nazir informer.
The Appellate Court has completely ignored the statement of P.W.3, Nazir on performance of Talb- i-Muwathibat. Evidence of P.W.2 was also misconstrued. Reference can be had to Muhammad Hanif v. Mst. Munawar Bi alias Munawar Noor 1999 SCM R 2230, wherein it is held that "evidence in respect of Talbs was produced by respondent through her attorney who had appeared in witness- box instead of her---Respondent being an old lady was within her right to lead evidence in Court through her attorney who could lawfully give evidence on her behalf---High Court's finding on question of .Performance of Talbs and non-appearing of respondent in witness-box being in accordance with law, no interference in such finding was warranted". The findings of the learned Courts below though concurrent are not sustainable in law. The statements of P.W.1 and P.W.2 were misconstrued and statement of P.W.3 Nazir was not considered at all.
9. For what has been discussed above, the judgments and decrees passed by the learned Courts below are not sustainable in law. The same are set aside. The suit for possession by way of pre- emption filed by the petitioner is decreed in his favour subject to payment of Rs.1,12,000 excluding Zar-i-Soyam, within a period of one month. In case he fails to deposit the amount within stipulated period, his suit shall stand automatically dismissed.