1. ' SYED ZAHID HUSSAIN, J.---Taj Muhammad had sold the suit property comprising Khasra No,5362/2 measuring 2 Marais, 3 Sarsahi, Okara in favour of Muhammad Sarwar respondent No,1, vide sale- deed dated 20-4-1995. Tariq Mahmood, the predecessor-in-interest of the petitioners, instituted a suit to pre-empt the said sale whereas respondent No,2 Muhammad Yousaf had also instituted a similar suit. Both the suits were consolidated and tried together by the trial Court. The suit' filed by the petitioners was decreed by the trial Court on 20-4-2001 whereas that of Muhammad Yousaf was dismissed. Muhammad Sarwar respondent/vendee, appealed thereagainst which appeal was accepted by the learned Additional District Judge, Okara vide judgment and decree dated 14-11- 2002. This is revision petition by the plaintiff/pre-emptor qua the same.
2. It is contended by the learned counsel that the appellate Court has misread the pleadings and the evidence produced by the petitioners, in recording adverse findings qua Issues Nos.9 and 10. It is contended that the superior right of pre-emption as also the performance of 'Talb' was fully proved by producing cogent and convincing evidence of overwhelming nature, therefore, the appellate Court acted' illegally in reversing the findings recorded by the trial Court. Reference has been made by him to Barkhurdar v. Muhammad Razzaq (PLD 1989 SC 749), Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311) and United Bank of India Ltd. Azirannessa Bewa alias Azizannessa Bewa (PLD 1965 SC 274). The learned counsel for the contesting respondent, Muhammad Sarwar has not entered appearance since morning despite the fact that his name duly appears in the cause list. The petition has been heard ex parte.
3. To assert his superior right of pre-emption and that he had made requisite Talbs, the petitioners laid foundation by making averments in paragraph 5 of the plaint. In order to prove the assertions, he produced Muhammad Ijaz Khan Postal Clerk as P.W.1, Sirajuddin Postman as P.W.2, Rana Zulfiqar Ali as P.W.3, Ronaq Ali Qadri Wasiqa Navees as P.W.4, Sheikh Ishtiaq Ahmad as P.W.5, Rashid Mahmood Hashmi son of the deceased plaintiff Tariq Mahmood as P.W.6. Postal receipt Exh.P.1, acknowledgement receipt Exh.P.2, notice addressed to Muhammad Sarwar respondent Exh.P.3, copy of extract of register Wasiqa Navees Exh.P.4, copy of register Haqdaran Zameen 1993-1994 Exh.P.5, Copy of Aks Shajra Exh.P.6, copy of sale-deed Exh.P.7 and few other documents were adduced in evidence. From the respondents/defendants side, Muhammad Yousaf rival pre-emptor appeared as D.W.1, Muhammad Rafique D.W.2, Muhammad Saleem D.-W.3, Sarfraz Ahmed Khan D.W.4 and Muhammad Sarwar respondent/vendee appeared as D.W.S. In the context of the controversy, Issues Nos.9 and 10 assumed relevance and importance which are reproduced hereunder:-- ISSUE No,9: ' Whether the plaintiff and the rival pre-emptor possess superior right qua the vendee/defendant No,2 ? OPP.
2. ISSUE No,10: ' Whether the plaintiff asserted talbs lawfully? OPD2"
3. ' Consideration of the evidence it was found by the learned trial Court, that the house of Tariq Mahmood deceased plaintiff was contiguous to the house in dispute whereas Muhammad Yousaf, the rival pre-emptor had failed to establish any such right. His right of preemption was thus recognized. Recording findings on Issue No,10 that the petitioners/plaintiffs had performed talbs in accordance with law, his suit was decreed whereas that of the rival pre-emptor was dismissed, who has not agitated the matter any further. In appeal however, the learned Additional District Judge proceeded to reverse the findings of the trial Court on both these issues i.e, Issues Nos.9 and 10 who was of the view that the prerequisites of Talb-e-Muwathibat had not been fulfilled. In reversing the findings on Issue No,9 as to the superior right of the petitioners/plaintiffs, it was observed that the house of the plaintiff cannot be said to be contiguous to the suit property and, thus, he had no superior right of pre-emption. The reasoning that prevailed with the learned appellate Court has been criticized by the learned counsel for the petitioners that on an untenable approach to the matter, which had no support of the evidence on the record, the appellate Court has reversed the judgment of the trial Court. I find merit and substance in the contention of the learned counsel inasmuch as that Abdul Aziz who had brought the information about the sale of the suit property and disclosed to Tariq Mahmood deceased plaintiff were dead and both of them were not in this world.The best available evidence was produced by the petitioners/plaintiffs to establish the performance of Talbs. There was no material contradiction in the depositions of the witnesses which could be given that much weight as has been attached by the learned appellate Court. The findings recorded by the trial Court on proper and due appreciation of the evidence were thus erroneously and illegally reversed by the appellate Court.
4. Insofar as the superior right of the plaintiffs was concerned, there was evidence of over-whelming nature to establish that the property of the petitioners/plaintiffs and the suit property comprised Khasra No,5362/2 and were contiguous to each other. Aks Shajra Exh.P.6 gave full description and location of the site position. It was even admitted by Muhammad Yousaf D.W.1, the rival pre-emptor that the property of Tariq Mahmood deceased plaintiff was contiguous to that of the suit property.
5. Muhammad Rafique D.W.2 also admitted this fact in his cross-examination. Similar was the deposition of Muhammad Saleem D.W.3 and Sarfraz Ahmad Khan D.W.4. In presence of such preponderant evidence, the view taken by the appellate Court qua Issue No,10 is not sustainable.
6. The appellate Court, thus, clearly acted illegally in reversing the judgment of the trial Court. The judgment of the learned Additional District Judge, which suffers from misreading and non-reading of the evidence on the record is not sustainable.
7. As a result of the above, accepting this revision petition, the judgment of the appellate Court dated 14-11-2002 is set aside and that of the trial Court dated 20-4-2001 is restored.
8. No order as to costs.