' MUHAMMAD SAIR ALI, J.---This civil revision arises out of suit for possession through pre-emption filed by the respondents to pre-empt sale transaction dated 18-9-1994. Upon trial the learned Civil Judge, Gujranwala dismissed the respondents' /plaintiffs' pre-emption suit through judgment and decree dated 10-4-1996. The respondents' appeal was accepted by the learned Additional District Judge, Gujranwala through the impugned judgment and decree dated 5-11-1997. On acceptance of such appeal the judgment and decree dated 10-4-1996 was set aside and the respondents' /pre-emptors' suit was decreed against the present petitioners. Hence, the present civil revision.
2. The learned counsel for the petitioners stated that only a restricted controversy as to whether right of 'Talbs' was exercised by the respondents in accordance with law or not requires adjudication in the present civil revision. He stated that the petitioners accepted and did not question the finding of the learned Additional District Judge on other issues. The learned counsel for the parties read out the pleadings of the parties as well as the evidence on record.
3. The learned counsel for the petitioners upon reading of the evidence of the petitioners was unable to show any misreading, non-reading or material irregularity in the finding of the learned Additional District Judge on the question of 'Talb-i-Muwathibat'. In the absence of any excess of authority or material irregularity or misreading or non-reading of evidence, this Court affirms the findings of the learned Additional District Judge on the question of 'Talb-i-Muwathibat' as made in the impugned judgment dated 5-11-1997 on the basis of due, proper and threadbare appreciation and evaluation of the evidence.
4. On 'Talb-i-Muwathibat', the respondents/pre-emptors in para 6 of the plaint pleaded that after the exercise of 'Talb-i-Muwathibat' they obtained copies on 30-9-1994 from Halka Patwari, again approached the petitioners to accept a sum of Rs,300,000 in order to transfer the rights and possession of the suit-land to them but on denial of the petitioners they fulfilled the requirements of 'Talb-i-Ishhad' as well by sending notices on 5-10-1994 through registered Letters bearing Nos.139, 140 and 141. And that no answer thereto was sent by the petitioners. Hence, the suit.
5. It is notable that the respondents did not mention the names of any of the truthful witnesses who witnessed and attested notices of 'Talb-i-Ishhad' and dispatch thereof to the petitioners. The learned counsel for the respondents admitted that neither the original notices were brought upon record nor any secondary evidence thereto was led by the respondents nor was the Record Keeper or postman produced in evidence by the petitioners/pre-emptors. He however stated that the notices having been exhibited as Exh.P. 1, Exh. P. 1/A , and Exh.P. 1/B (though under objection) the same should be read as adequate proof of the notices of 'Talb-i-Ishhad' as well as dispatch thereof. Further stated that dispatch of the same was proved by the respondents/pre-emptors through production of Acknowledgement Due memos., which were exhibited as Exhs.P.2, P.3, P.3/A and P.3/B and postal receipts as Exhs.P.2, P.2/B and P.2/C. The learned counsel for the petitioners on the contrary stated that in absence of production and proof of record from the post office through the record clerk or the postman, the above referred documents cannot be said to have been duly proved. Further stated that none of witness produced by the respondents/pre-emptors supported the notices of 'Talb-i-Ishhad' or their dispatch.
6. P.W.3, Muhammad Yasin, one of the plaintiffs/respondents; appeared to support the claim to pre-emption of the above referred sale transaction. In his deposition he stated that three notices of 'Talb-i-Ishhad' were sent to the present petitioners, the original thereof was sent to Sarwar Khan while copy was sent to the other two petitioners He further stated that he thumb-marked the original and the other two copies. In his examination-in-chief he categorically stated that he was producing photocopies thereof. The same were exhibited (under objection) as Exh.P.1, P.1/A, P.1/B in the trial Court. He made no statement in his examination-in-chief as to the thumb-marking or signing of the same by any of the purported witnesses. In the cross-examination he only stated that the witnesses kept sitting outside in the Veranda while the respondents/plaintiffs remained with their lawyer for 1-1/2 hours during which the notice was written. He also made no statement as to the dispatching of such notices. Photocopies of the purported notices as produced by the respondents show the same to have been attested as a witness by Muhammad Yousaf son of Karam Din, Suleman son of Roshan,. Chhota son of Khair Din, Muhammad Amin son of Nawab Din and Muhammad Faiz son of Nazir. Out of these five witnesses only Muhammad Amin and Muhammad Faiz were produced as P.W.1 and P.W.2. None of the other three witnesses were produced. Muhammad Amin while appearing as P.W.1 stated in the examination-in-chief that he had thumb-marked the notices, photocopy of which was respectively produced under objection (as Exh.P.1/A and P.1/B). In the cross-examination he stated that he did not know the name of the lawyer who wrote the notices as he was sitting outside in the Veranda along with the other witnesses. He further stated that he did not go to see the lawyer in the room and the other witnesses also did not go into the room to see or meet the lawyer.
7. In view of the above state of evidence on notice of 'Talb-i-Ishhad' this Court approves the finding of the learned Civil Judge, Qujranwala in judgment dated 10-4-1996 that the respondents/plaintiffs had failed to prove the mandatory requirement of dispatching notice of "Talbi-Ishhad" to the petitioners. Further that the respondents failed to prove the date of dispatch or the dispatch itself through production of the record of the post office. Even the acknowledgement due memos.
(exhibited as Exhs.P.2, P.3, P.3/A and P.3/B) admittedly do not show or prove receipt of the purported notices by the petitioners owing to absence of thumb-mark or signatures of the petitioners on such notice. In absence of the production of the postman or record clerk neither dispatch nor delivery thereof has been proved. It goes without saying that the photocopies of the notices of 'Talb-i- Ishhad' as produced in the deposition of P.W.3 were inadmissible in evidence. The respondents/ plaintiffs have not been able to prove the said notices through secondary evidence. In view thereof the findings of the learned Additional District Judge in the impugned judgment and decree dated 5-11-1997 on the question of 'Talb-i-Ishhad', suffer from misreading of evidence and the same are accordingly set aside, consequently it is also held that the judgment of the learned Muhammad Faiz son of Nazir deposing as P.W.2 in the examination-in-chief stated that he thumb-marked the notices but in the cross-examination he admitted that he did not know what was written in the notices neither did he know the name of the lawyer or also as to whether they had gone to the lawyer or the clerk of the lawyer. He expressed his lack of knowledge regarding the person writing the notice and as to the contents thereof. #TBS [Vol. VIII #TBE ' Additional District Judge accepting the appeal of the respondents and decreeing their suit also suffers from material irregularity. As such exercising revisional powers under section 115, C.P.C. The decision of the learned Additional District Judge decreeing the respondents' suit on acceptance of their appeal is also set aside in the absence of the proof of 'Talb-iIshhad' and its dispatch. As such the decree of dismissal of the 'suit by the learned Civil Judge through judgment and decree dated 10-4-1996 is upheld and maintained for the above stated reason. There shall be no orders as to costs.