The petition was heard exparte on 3.3.2004 and was accepted vide judgment of the same date by setting aside the judgment of the appellate Court and restoring that of the trial Court.
2. C.M. No. 235-C/2004 was filed for setting aside of the exparte order dated 3.3.2004 and .for decision of the revision petition. after hearing the applicant. The reason disclosed for non- appearance on 3.3.2004, (as mentioned in the application) is the non-receipt of cause list about the fixation of the case. Notice in the application was issued to the revision petitioners. On 7.3.2005 the learned counsel for the parties arrived at a consensus that the applicant may be heard on merits of the matter for which purpose this application and the revision petition may be adjourned to some future date.' The matter has thus been heard today.
3. The, emphasis of the learned counsel for the applicant mainly is about the effect of statement of Arshad Mahmood PW-6 (son of the deceased preemptor/plaintiff) which according to the learned counsel has not been correctly read or appreciated in the context of issue about Talbs. It has been contended by him that the contradictions/discrepancies in the statements of Zulfiqar Ali PW-3, Ishtiaq Ahmed PW-5 and Arshad Mahmood PW-6 have escaped the notice of this Court. According to him the Tulbs have to he performed strictly in accordance with the provisions of Section 13 of the Punjab Preemption Act, 1991 as interpreted by the superior Courts from time to time. Reference in this context has been made to Atiq-ur-Rehman through (Real father) and another v. Muhammad Amin (PLD 2006 SC 309) and Muhammad Yousaf v. Muhammad Rafique and others (PLD 2006 Lahore 39), which case was decided by this Court.
Contrarily the learned counsel for the petitioner/preemptor has contended that since Tariq Mahmood (the original plaintiff/preemptor) had died during the pendency of the suit, his son Arshad Mahmood had to appear as. PW-6 and Abdul Aziz informant since had also died he could not be produced whereas the other two witnesses in whose presence the plaintiff/preemptor acquired knowledge of sale namely Rana Zulfiqar Ali (PW-3) and Ishtiaq Ahmed (PW-5) had appeared whose testimony supported the version of the petitioners/preemptor. According to him though the revision petition was decided ex parte yet judgment dated 3.3.2004 was passed on correct appreciation of the evidence.
4. I have gone through my judgment dated 3.3.2004 and tested it on the touchstone of the evidence which has been read and referred to by the learned counsel for the parties. It may be mentioned that in the notice of Talb-e-Ishad it was pleaded by the deceased preemptor that he had learnt of the sale transaction dated 20.4.1995 on 29.7.1995 when Abdul Aziz deceased informed him about the sale of the suit property and he declared his intention and superior right in presence of Ishtiaq. Ahmed and Rana Zulfiqar Ali. Averments made in paragraph-5 of the plaint are also to the same effect. Both these witnesses Rana Zulfiqar Ali and Ishtiaq Ahmed were consistent on material aspects of the controversy in their depositions. In the judgment dated 3.3.2004. I had dealt with this aspect as follows: "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 not material contradiction in the depositions of the witnesses which could be given that much weight as has been attached by the learned appellate Court."
A lot of emphasis has been laid by the learned counsel for the applicant qua the deposition of Arshad Mahmood PW-6 (son of deceased preemptor) who somehow stated that he was also present at that time when Abdul Aziz told his father about the sale. According to him such an information was given by Abdul Aziz on 1.8.1995. It may be observed that presence of Arshad Mahmood is neither mentioned in the notice of Ishad nor in the plaint. Had his father not been dead after the institution of the suit there was no possibility of appearance of Arshad Mahmood as witness. His testimony even if assumed to be discrepant has little relevance to the matter in issue.
The testimony of two important witnesses i.e. Zulfiqar Ali and Ishtaiq Ahmed who were present at the occasion and had witnessed the notice of Ishad could in the circumstance when Abdul Aziz and Tariq Mahmood both were dead be considered sufficient unless of course it be shown that there statements were mutually contradictory and destructive. But it is not so, as their depositions were confidence inspiring and believable. Findings recorded by the lower appellate Court thus on Issue No. 10 were rightly reversed through judgment dated 3.3.2004: There is no cavil that in order to succeed in a suit for preemption the preemptor/plaintiff is required to fulfill the preconditions of Section 13 of the Punjab Preemption Act, 1991. That is the consistent view of the Superior Courts including the precedents cited by the 'learned counsel for the applicant. But in the instant case as mentioned above, sufficient evidence was produced by the petitioner/preemptor about the performance of Talbs.
5. As to the superior right of the petitioners/preemptor the matter was dealt with in the judgment dated 3.3.2004 as follows: "Insofar as the superior right of the plaintiffs was concerned, there admitted by Muhammad Yousaf DW-1, the rival pre-emptor that the of the petitioners/plaintiffs and the suit property comprised Khasra property of Tariq Mahmood deceased plaintiff was contiguous to this No. 5362/2 and were contiguous to each other. Aks Shaira Ex. P-6 was evidence of over-whelming nature to establish that the property gave full description and location of the site position. It was even of the suit property. Muhammad Rafique DW-2 also admitted this fact in his cross-examination. Similar was the deposition of Muhammad Salem DW-3 and Sarfraz Ahmad Khan DW-4."
The superior and preferential right of preemption was thus fully established.
For these reasons Judgement dated 3.3.2004 whereby the revision petition was accepted by setting aside the appellate judgment and restoring that of the trial Court was according to my humble view, correct and need not be recalled as it was a fit case for the exercise of revisional jurisdiction.
The application is dismissed accordingly by reiterating judgment dated 3.3.2004. No order as to costs.