' JAWWAD S. KHAWAJA, J.---The petitioner/defendant impugns the appellate judgment and decree dated 3-1-2002, whereby the decree of the learned trial Court dated 18-9-1997 has been reversed and a suit filed by the respondent/ plaintiff/ pre-emptor seeking possession of the suit property measuring 11 Kanals and 7 Marlas has been decreed.
2. The only issue argued before me is Issue No,2 relating to Talbs, which was framed in the following terms:-- "Whether the plaintiff performed all the necessary Talbs? OPP."
3. The respondent appeared as P.W.1 and produced Muhammad Afzal (P.W.2) and Bahsir Ahmad (P.W.3) to prove the performance of Talbs. The learned trial Court, however, held that the respondent/plaintiff had not mentioned the date, time and place of Talb-e-Muwathibat in his plaint and, therefore, he could not succeed. A precedent was cited by the learned trial Court to justify its conclusion on Issue No,2. On appeal, the learned appellate Court held that it was not necessary for the plaint to contain the particulars as to date, time and place of Talb-e-Muwathibat and that a plaintiff in a pre-emption suit could not be non-suited on this ground. Reliance was placed by the learned appellate Court on the case titled Haji Noor Muhammad through his legal heirs v. Abdul Ghani and 2 others 2000 SCM R 329.
4. Learned counsel for the petitioner argued that the latest law on the point, as enunciated by the Honourable Supreme Court, is given in the case titled Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCM R 431. To this, learned counsel for the respondent submitted that the judgment in the case titled Haji Noor Muhammad through his legal heirs v. Abdul Ghani and 2 others, supra, was by a larger Bench and has not been considered by the learned Bench which decided the case titled Akbar Ali Khan and others v. Mukamil Shah and others.
5. It is not necessary for me to go into the question as to which precedent of the Honourable Supreme Court applies in the present case because on facts it is clear that the P. Ws. Have contradicted each other in material particulars and cannot, therefore, be relied upon for proving Talb-eMuwathibat. The most significant aspect of the case is that respondent/plaintiff as P. W.1 deposed that he was informed of the sale by Muhammad Afzal at the residence of Arif, where he stayed overnight. The alleged informer Muhammad Afzal, however, deposed that the plaintiff had stayed with him for the night and he informed the plaintiff of the sale at his own house. This is a material contradiction, which, unfortunately, has not been discussed by the appellate Court. The importance of proving the date, time and place of Talb-e-Muwathibat is well recognized in all of the precedents of the Honourable Supreme Court even where it has been held that such particulars need not be averred in the plaint.
6. In the above circumstances, I find that the impugned appellate decree is a result of non-reading of material aspects of the testimony of P.W.1 and P.W.2. The appellate decree, as such, is not legally sustainable and is, therefore, set aside. As a result, the decree of the learned trial Court dated 18-9- 1997 stands restored.