' MIAN SAQIB NISAR, J.---The appellant succeeded in obtaining a decree for the pre-emption from the learned trial Court, but on appeal of the respondent, which was accepted, the suit has been dismissed.
2. Briefly stated the facts of the case are that the suit-land measuring 75 Kanals and 18 Marlas, situated in Mouza Nawaday Mallhian, Tehsil Pasrur, District Sialkot, was purchased by the respondents vide registered sale-deed dated 30-6-1990; the appellant on 30-10-1990, filed a suit for the pre-emption and in the plaint, the plaintiff has failed to give the particulars such as the date, day, month and the venue of attaining the knowledge and making of Talb-eMuwathibat on that date, rather it is stated:-- {{URDU TEXT}} ' In the plaint, the notice of Talb-iIshhad is stated to have been issued, but again to date in this behalf, is specifically mentioned. Anyhow, the respondents contested the suit by denying the making of valid Talbs by the appellant; issues were framed; parties were put to trial; the appellant examined Muhammad Boota as P.W.1; this witness has not testified about the particulars mentioned above, but has vaguely deposed that it was one month after the sale. P.W.2, Maqbool Ahmed, has also failed in this behalf and stated to be a month; whereas the appellant while appearing as P.W.3, has deposed:- {{URDU TEXT}} he too has not mentioned any day, date, time, etc. Anyhow, the suit was decreed by the trial Court.
But on appeal, the appellate Court has reversed the finding on the issue of Talbs and has dismissed the suit. It is held that both the Talbs have not been proved by the plaintiff/appellant; the notice of Talb-i-Ishhad has not been proved, because the second witness of the notice namely Barkat Lamberdar, was not examined and there is no genuine cause/explanation for his lapse.
3. Learned counsel for the appellant has argued that during the pendency of the appeal, the parties got their statement recorded that the matter should be decided on the basis of the statement of the referee namely Muhammad Sharif; the referee appeared as C.W.1 and had stated the respondent and therefore, the appeal should have been decided according to the opinion of the referee but the learned Court of appeal, having not done so, has failed to exercise its proper jurisdiction.
4. I am afraid, the above contention has no force because the appellant has failed to prove on the record, a valid agreement between the parties agreeing for the decision of the case on the basis of the statement of the referee or any arbitration agreement between them, through which Muhammad Sharif was appointed as the referee or the arbitrator. From the order sheet of the Court of appeal, it transpires that on 1-12-1996, it is the counsel for the appellant, who made a unilateral statement that there is some agreement between the parties for referring their dispute to the arbitration and that the arbitrator has either given his decision or is likely to give the one; thus the Court in routine directed to file the arbitration agreement and the award. But on 22-12-1996, it is clearly ordered by the Court:-- {{URDU TEXT}} ' Thereafter, from the record, it transpires that Muhammad Sharif appeared as C.W.1, on an application of the appellant and had made the statement that he had been appointed as a referee and that he has given his decision Exh.C.W.1/1; he was cross-examined in which, it was categorically refuted that he was never appointed as a referee or the arbitrator by the parties. Be that as it may, the referee was required to produce the agreement through which, his appointment was made by the parties, but the needful was not done and thus on 6-9-2001, the Court ordered that "The referee has not entered appearance. The parties have not produced the referee in the Court in spite of lot of opportunities provided to them. To come up for hearing appeal on merits for 7-9-2001".
' In the light of above, the learned Court of appeal has rightly discarded the plea of the appellant about Muhammad Sharif, being a reference between the parties, therefore, he correctly opted to take up the matter on merits.
5. For the case on merits, suffice it to say that the appellant has miserably failed to prove the making of valid Talb-iMuwathibat; no day, date, month and year, etc. Has been given in the plaint.
However, in view of the law laid down by the Honourable Supreme Court, this omission can be overlooked, but if it is proved through evidence. Learned appellate Court has taken the pain to consider and appreciate the evidence and has found that the Talb-i-Muwathibat has not been established by the appellant. From my own reading of the evidence, I also share the same view because the necessary particulars have not been given or proved by the witnesses. Besides, the notices of Talb-iIshhad has also not been proved; only one witness has been examined and for the other, there is no explanation, as to why he was not produced before the Court, resultantly, I do not find this to be a fit case for interference in the second appeal as the judgment and decree of the learned Court of appeal is now shown to be illegal or contrary to law, resultantly, the appeal has no merit and the same is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.