' MUHAMMAD MUZAMMAL KHAN, J.---This civil revision assails judgment and decree dated 17-10- 2003 passed by the learned Additional District Judge, Depalpur, District Okara, whereby suit of the respondent was decreed, by accepting his appeal.
2. Precisely, relevant facts are that the respondent filed a suit for possession through pre-emption of land measuring 48 Kanals, 12 Marlas, detailed in the plaint, effected through Mutation No,221 dated 21-3-1994 for an amount of Rs,6,60,000. Superior pre-emptive right was claimed by the respondent on the basis of being Shafi Sharik and pleaded that on gaining knowledge of sale on 12-6-1994, in presence of the witnesses namely, Sharaf Ali, Rajab Ali and Aziz Ali, he exclaimed an immediate intention of pre-empting the sale in question, as his right was superior to that of the petitioners/vendees. He further asserted in his plaint that after performing Talb-i-Muwathibat he sent a notice of Talb-i-Ishhad in terms of section 13(3) of the Punjab Pre-emption Act, 1991, attested by two truthful witnesses and in this manner performed Talb-i-Ishhad.
' Thereafter by filing the suit in hand, he fulfilled the requirement of Talb- IB i-Khusumat.
3. Petitioners being defendants in, the suit, denied assertions in the plaint and raised certain preliminary objections regarding maintainability of the suit, limitation, cause of action, waiver and Court-fee etc. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned trial Judge, who was seized of the matter, on the basis of evidence, dismissed the suit of the respondent vide his judgment and decree dated 14-5-2001.
4. Respondent aggrieved of the decision of trial Court dated ' 14-5-2001, filed an appeal before the learned Additional District Judge, where he succeeded as his appeal was accepted and his suit was D decreed subject to deposit of an amount of Rs,1,60,000 after deducting one - third of the sale price already deposited by him till 18-11-2003, vide judgment and decree dated 17-10- 2003.Petitioners aggrieved of appellate judgment and decree filed instant revision petition wherein on notice by this Court respondent appeared through his counsel.
5. Learned counsel for petitioners submitted that the appellate Court fell into error in not meeting the points evolved by the learned ' trial Court, whereby a finding was returned that respondent did not perform Talb-i-Ishhad and the notice with regard to it were not proved to have been delivered to the petitioners. It has also been contended that appellate Court seriously misread the evidence on the file, especially statement of P.W.2, who had admitted that on delivery of possession of the land in question, he informed the respondent regarding sale in favour of the petitioners. Referring to document Exh.D.2 (Rapat Roznamcha), he argued that possession of the land subject of suit was taken under the sale on 20-2-1994 and sale on this date having come to the knowledge of the respondent, he did not make Talb-i-Muwathibat. He further elaborated his arguments by saying that if, time of the alleged transmission of Talb-i-Ishhad is calculated from the date of knowledge, the asserted notice was beyond the period prescribed by section 13 of the Act ibid. He further submitted that the trial Court has returned findings on Issue No,7, after proper appraisal of the evidence that respondent has waived his right of pre-emption, if any, on account of his active participation in the negotiations of sale, but the appellate Court has erroneously returned findings contrary to the evidence on the file.
6. Learned counsel appearing on behalf of the respondent denied assertions of the petitioners, supported appellate judgment and decree and urged that arguments of the learned counsel for the petitioners revolved around points which were not raised before the two Courts below and those have been taken for the first time in revisional jurisdiction, thus the same cannot be considered to non-suit the respondent. He further contended that notices of Talb-i-Ishhad, were duly delivered to the petitioners and this fact is proved from the evidence on the file. According to the learned counsel for the respondent Talb-iMuwathibat was to be made on gaining knowledge of the sale in terms of section 13 of the Act ibid and not on the date of taking possession by the vendee. Date of knowledge given by the respondent in his plaint was proved through statement of P.Ws., whose veracity could not be shattered during the cross-examination and thus the appellate Court has taken a rightful view. He further elaborated his arguments by saying that a finding of fact given by the appellate Court after appraisal of evidence is not amenable to revisional jurisdiction of this Court.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Before deciding the respective submissions of the parties touching merits of the case, I intend to take care of objection of the respondent with regard to non-raising of objections noted in his arguments before the two Courts below and that whether such points can be raised, for the first time, at revisional stage. Suit of the respondent was dismissed by the trial Court returning findings on Issues Nos.2 and 7 in favour of the petitioners and thus they were not required to file any appeal against this decision. Respondent filed an appeal where the petitioners could support the decree passed in their favour, without filing an appeal under the provisions of Order XLI, rule 22, C.P.C. Appeal of the respondent was accepted on which an occasion for the first time, arose for the petitioners to raise objections to the decision of the appellate Court and they have taken these objections in the memo. Of revision filed before this Court. In this manner, it cannot be said that on account of non-raising of points beforfe the two Courts below, the petitioners are debarred from asserting those grounds in the revision. Above all, all the submissions made by the petitioners, arose out of the record of the trial Court and this Court is not handicapped to consider their validity, especially when this Court itself is equipped with suo motu power of revision under section 115, C.P.C. It is settled proposition of law that law points emerging out of the files and contest between the parties, can be raised at any stage of the proceedings. No doubt, a. Party cannot be allowed to urge an unpleaded case at revisional stage, but any ground on the basis of which an asserted plea is sought to be accepted or annulled, cannot be said to be a new point. In this manner, as well, petitioners cannot be stopped from taking any new ground in support of his case set up before the Courts below.
8. The learned trial Judge though gave a finding that respondent has successfully proved performance of Talb-i-Muwathibat, but did not consider statement of P.W.2, along with Exh.D.2 (Rapat Roznamcha). It shows that vendor on 20-2-2004 got her statement recorded on the basis of which mutation subject of suit, was sanctioned to the effect that she has sold her land to the petitioners for an amount of Rs,6,60,000 and after receiving the entire sale price has delivered them the possession and this Rapat Roznamcha was duly incorporated in Column No,14 of Mutation No,221 dated 21-3-1994 and on its basis, this mutation was entered. P.W.2 Nazir Ali son of Ghulam is the informer who conveyed the information of sale to the respondent, categorically stated in his examination-in-chief that on taking over possession of the land in dispute by the petitioners, they become aware of the sale in dispute and consequently he transmitted this information to the respondent. D.W.7 is one of the petitioners, who appeared as his own witness and deposed that vendor delivered the possession of the land in question after receiving the entire sale price at the time of entry of the Rapat Roznamcha and the mutation, which could not be attested on account of non-deposit of connected fees, payable to the Government. It shows that sale in favour of the petitioners was complete on 20-2-1994 when the entire price was received by the vendor and possession thereunder was delivered to the petitioners. At this juncture, information was also received by the respondent, as stated by P.W.2, but he incorrectly pleaded in his plaint that he gained knowledge of the sale on 12-6-1994. Respondent has neither claimed to have performed Talb-i-Muwathibat on 20-2-1994 nor was it proved on the record and if limitation for making Talb-i-Ishhad is calculated from 20-2-1994, it should have been before 4-3-1994 and instead it was sent on 16-6-1994 and on the face of the record, it was not in accordance with the provisions of section 13 of the Punjab Preemption Act, 1991 and the respondent's right, if any, stood extinguished under those provisions.
9. Respondent mentioned in the plaint that he made Talb-i-Ishhad by sending notice attested by two truthful witness under a registered post acknowledgement due. He did bring on record postal receipts Exh.P.17 to Exh.P.24, showing that some postal letter was dispatched by him in the names of the petitioners, but there is no proof of service/delivery of notice of Talb-i-Ishhad on the petitioners.
Respondent has produced photocopies of the notice of Talb-i-Ishhad dated 16-6-1994 but the registered envelopes alleged to have been received back with a report of refusal were neither opened in the Court nor were tendered in the evidence and at the same time those were not confronted to the petitioners while one of them was in the witness-box. Talb-i-Ishhad will only be assumed to have been performed in accordance with law when delivery of this notice to the vendees is proved on the file or it is proved that such notice was sent to him but was refused. It is settled that in case of refusal to receive the notice by the vendee the concerned postman, who went to deliver it, should have been examined as a witness and besides it the envelope received back must be opened in the Court to ascertain whether it contains a notice or only a blank paper and if on opening of this envelope a notice comes out, it has to be proved by producing its marginal witnesses. Mere sending a notice is not enough to discharge onus of serving notice of Talb-i-Ishhad, as placed on the shoulders of the pre-emptor by the provisions of section 13 of the Punjab Pre-emption Act, 1991. In the instant case, neither receipt of notice nor its refusal was proved and at the same time, it was not verified by opening the envelope that it did contain the notice which, also was to be proved by its marginal witnesses.
10. Trial Court had decided Issue No,7 against the respondent by holding that he has waived his right of pre-emption, if any, but this finding was reversed in appeal. Respondent who was pre- emptor, is real brother of Nazar Muhammad and Shah Muhammad petitioners Nos.6 and 7.
According to P.W.7 these brothers are leading a joint family system living together in one house.
Viewing statement of P.W.2 deposing that he conveyed information of sale to the respondent on taking over of possession by the petitioners and their relationship besides their joint abode, statements of D.W.6 and D.W.7 regarding offer of sale to the respondent and his joining sale proceedings, appears to be correct. D.W.7 also deposed that on the day when the petitioners visited the Patwari for reporting their purchase, on which Exh.D.2 was prepared by him, respondent was present there for reporting purchase of 3 Kanals, 14 Marlas of land from Mst. Noor Bakhat, the vendor. Statements of the witnesses (D.W.6 and D.W.7) remained unshattered in spite of lengthy cross-examinations by the respondent. Appellate Court while reversing findings of the trial Court on Issue No,7 has not referred to any of the point evolved in the judgment under appeal before it, and concluded that mere participation of the respondent in sale transaction does not amount to waiver. This finding though is not opposed to the settled law pre-pounded by the superior Courts on the question of waiver/estoppel but these findings were relevant for considering knowledge of the respondent regarding sale under Issue No,2. Had the appellate Court gone into the deeper appreciation of findings given on Issue No,7 by the trial Court, I am sure that fate of the case on Issue No,2 must have been otherwise than the one returned by the appellate Court. No finding with regard to Talb-i-Muwathibat was given in the judgment impugned and entire emphasis has been put to conclude that Talb-i-Ishhad was performed by the respondent. Under law, the foremost need for discharge of obligations by the pre-emptor under section 13 of the Act ibid, is Talb- iMuwathibat, from which limitation is to be calculated for fulfillment of Talb-i-ishhad and Talb-i- Khusumat, as such, without giving findings on II Talb-i-Muwathibat nothing could have been decided.
11. For what has been discussed above, I am confident in my mind that respondent was well aware of the sale in favour of the petitioners much before the date mentioned in the plaint and having knowledge of it he did not perform Talb-i-Muwathibat in accordance with law and consequently his notice of Talb-i-Ishhad dated 16-6-1994 which is not proved on the file, as noted above, was not within time prescribed by section 13 of the Act ibid. Respondent on account of non-performance of Talbs at relevant time extinguished his pre-emptive right, if any, and his suit could not have been decreed. All the above noted points were not taken care of by the appellate Court and as such its judgment and decree dated 17-10-2003 cannot be maintained at law. Consequently, I accept this revision petition and set aside judgment and decree dated 17-10-2003 passed by the learned Additional District Judge, Depalpur, District Okara, with the result that suit for possession through pre-emption filed by the respondent is dismissed, with no order as to costs.