MIAN SAQIB NISAR, J.---The appellant is the pre-emptor, who challenged sale dated 16-9-1989 made in favour of the respondent regarding the land measuring 167 Kanals and 1/2 Marla. The suit was filed on 5-11-1989 and in paragraph No.5 of the plaint, it is averred that Talb-e-Muwathibat was made as soon as the appellant learnt about the sale and thereafter, made Talb-e-Ishhad.
However, no detailed particulars .About the Talbs have been given in the plaint. Anyhow, the respondents resisted the suit and joined issue on Talbs, i.e. No.7. The parties led their evidence and the learned Civil Judge by retraining his findings in favour of the appellant on all the issues including issue No.7, decreed the suit vide judgment and decree dated 23-1-1999. Against the above, the respondents preferred an appeal, which was accepted on 21-1-2000 and the findings of the trial Court on the said issue were reversed and the suit of the appellant was dismissed. Against this, the appellant preferred R.F.A. No.39 of 1999, which was accepted by this Court vide judgment, dated 7-10-1999, and the operative part of the judgment reads as follows:-- "The reading of the impugned judgment reveals that the learned Additional District Judge was influenced by the facts that requirement of Talb-e-Muwathibat had not been proved by the appellant. I will not opine on the merits of the said observation but the fact remains that the law exempted the appellant from proving the making of the said Talb-e-Muwathibat. The learned Appellate Court was thus, required only to find as to whether the Talb-e-Ishhad has been made by the appellant in accordance with the terms of section 35(2) i.e. Whether the appellant had made Talb-e-Ishhad in presence of two -truthful witnesses."
2. In the post-remand proceedings, considering the exercise on the record, the learned Appellate Court has accepted the appeal of the respondents holding, that there are discrepancies in the statements of the P.W. To P.W.3 about the making of Talb-e-Ishhad, which the learned Judge has highlighted in his judgment, and in addition thereto, that the notice of Talb-e-Ishhad in writing has not been sent to the vendee in accordance with section 35(2) of the Punjab Pre-emption Act, 1991.
3. Learned counsel for the appellant contends that the sale in question was during the interregnum, when there was no statutory law regarding the pre-emption, therefore, such suits were to be decided in accordance with the law laid down in Haji Rana Muhammad Shabbir Ahmad Khan v.
Government of Punjab, Province, Lahore PLD 1994 SC 1, which enunciates that there was no requirement of any notice of Talb-e-Ishhad in writing, rather the plaintiff could prove this Talb by producing the evidence, that it was made in presence of two truthful witnesses. According to the learned counsel, the view taken by the learned lower Appellate Court about the requirement of notice to be in writing is erroneous and against the law. As far as the other evidence of the appellant is concerned, he stated that P.W. Muhammad Siddique in clear and unequivocal terms has deposed that Talb-e-Ishhad was made by the appellant in his presence and also in the presence of number of other persons; this statement is corroborated by the P.W.2 Walayat Khan, who has specifically named Muhammad Siddique P.W. To be also present at that time when Talb- e-Ishhad was made, besides, the appellant himself appeared as P.W.3, and has reiterated the making of Talb-e-Ishhad in the presence of Muhammad Siddique and Walayat Khan; thus, the accumulative effect of the depositions, which have not been shattered in the cross-examinations, is that Talb-e-Ishhad has been duly proved in accordance with law.
4. Heard. As far as the notice in writing is concerned, the plea taken by the learned counsel for the appellant is correct. Therefore, the impugned judgment on this point as set aside.
5. For the discrepancies in the statement of the P.W.1, I have myself perused the record and find that Muhammad Siddique, in his statement has mentioned that there were other people present at that time, but he has not given the names, and also has not mentioned about the Walayat's presence; no time, the date and the day of Talb-e-Ishhad has been given by this witness; above all, this witness states that Talb-e-Ishhad was made after one month and four days of the sale, whereas his statement is busted by the statement of the appellant himself, when he, in the cross- examination, stated that he learnt about the sale after 4/5 days thereof and made Talb-e-Ishhad the same day; these two statements are so contradictory that those cannot sustain and co-exist. It is also submitted that P.W.2 Walayat Khan, when questioned about the date etc. Of Talb-e-Ishhad, he is totally ignorant; thus, the learned Appellate Court has rightly accepted the appeal of the respondents. Therefore, the judgment and decree of the learned lower Appellate Court sustained, as it does not suffer from any vice or infirmity of misreading and non-reading of the evidence and it is also not shown contrary to any law, which could be interfered in second appeal. The appeal thus, has no merits and is hereby dismissed.