' CH. IJAZ AHMAD, J.---The brief facts of which the present revision petition arises are that the original owner Riasat Ali sold land measuring 10 Marlas to respondent vide Mutation No,97 which was sanctioned by the Revenue Officer on 26-1-1992 for consideration of Rs,15,000. The petitioner being aggrieved filed suit for pre-emption before the Civil Judge, Wazirabad on the grounds of Shafi Shareek, Shafi Khaleet and Shafi Jar. The petitioner came to know about the sale on 24-5- 1992 and thereafter, allegedly after completing the Talbs in terms of section 13 of the Punjab Pre- emption Act filed the aforesaid suit before the said Court on 26-5-1992. The respondent filed written statement, controverted the allegations levelled in the plaint. Out of pleadings of the parties the trial Court framed the following issues:--
(1) Whether the plaintiff has no cause of action to file this suit? OPD
(2) Whether the defendant has spent a sum of Rs,95,000 on the improvements of the pre-empted land? If so, its effect? OPD
(3) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
OPD
(4) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD Whether the suit is time-barred?
(5)
OPD
(6) Whether the plaintiff has superior right of pre-emption qua the vendee/defendant? OPP
(7) Whether the plaintiff has fulfilled legal Talbs as enunciated by Punjab Pre-emption Act, 1991?
OPP
(8) Relief.
' The learned trial Court decreed the suit vide judgment and decree dated 18-4-1994. The respondent being aggrieved filed appeal before the Additional District Judge, Wazirabad who accepted the same vide judgment and decree dated 25-7-1996. Hence the present revision petition.
2. Learned counsel of the petitioner submits that judgments of both the Courts below are at variance. He further submits that first appellate Court reversed the finding of the trial Court without adverting to the reasoning of the trial Court. Therefore, first appellate Court has exercised jurisdiction illegally and in the facts and circumstances of the case the petitioner has been able to successfully prove the making of Talbs. He further submits that judgment of the first appellate Court is result of misreading ad non- reading of record as the petitioner has immediately fulfilled the Talbs in terms of Pre-emption Laws but this fact was not properly appreciated by the first appellate Court.
3. Learned counsel of the respondent submits that first appellate Court reversed the finding after proper appreciation of evidence and after meeting the reasoning of the trial Court. He further submits that learned counsel of the petitioner failed to point out any piece of evidence which was misread by the first appellate Court.
4. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.
5 It is better and appropriate to reproduce para.7 of the judgment of the first appellate Court to resolve the controversy between the parties:- "7. Arguments heard and record perused. The file reveals that the plaintiff has proved himself to be owner of the contiguous land of the land in dispute. He has tendered in evidence the copy of Akas Shajra Exh.P.1 and the copies of Register Haqdaran Zamin for the year 1990-1991 and he has produced Exh.P.4 and Exh.P.5 and said documents indicate that the plaintiff owns land contiguous to the said property bearing Khasra No,534. Now it will be seen that if the plaintiff has succeeded to prove the making of Talbs in accordance with law. To prove this fact, the plaintiff himself appeared as P.W.5 and he stated that he came to know about the sale in the month of Jaith and on 24th of English Calendar in the evening time. He went to Nazir and said that he has preferential right and thereafter he took Nazir and Mehr Dad to the vendee/ appellant after Isha prayer. In cross- examination the plaintiff has stated that he came to know about the sale from Baba Ali son of Fazal. The plaintiff has not stated that he made Talb-i-Mawathibat at once at the time when he came to know about the sale. In his examination-in-chief he simply stated that when he came to know about the sale he went to Nazir and thereafter, he made Talb-iMawathibat. Meaning thereby at the place where he came to know about the same he did not make demand. According to the requirement of law the plaintiff was required to make Talb-iMawathibat before leaving the said place but the plaintiff failed to do so. P.W.3 Nazir Ahmad stated that Yousaf came to him and they both went to Baba Mehr from where they went to Safdar vendee. This witness has not stated anything about the making of Talb-iMawathiabat by the plaintiff whereas the plaintiff has stated that he made Talb-i-Mawathiabat in presence of Nazir. Nazir P.W.3 also admitted in cross- examination that when the sale was made he and the plaintiff came to now about it. He again said that when the sale was made they at once went to the defendant. In this way the witness has admitted that the knowledge about the sale was acquired by him as well as by the plaintiff on the day of sale i.e, 26-1-1992. Mehr Dad P.W.4 stated that in cross-examination that the day when the notice was given they came to know about the sale. According to the plaintiff he came to know about the sale on 24th while notice Exh.P.2 is dated 25-5-1992 whereas the receipt Exh. P .3 indicates the date as 26-5-1992 the date when the suit was instituted. In short the plaintiff has failed to prove that he made Talb-iMawathiabat at the time when he came to know about the sale.
According to P.W.3 the plaintiff came to know about the sale on very first day but the notice of Talb-i-Ishhad was not given within two weeks. In this way, the plaintiff has failed to prove the making Talb-i-Mawathiabat as well as Talb-i-Ishhad in accordance with law. The trial Court has ignored the legal aspect for proving both the Talbs and have not properly read the evidence of the plaintiff and has wrongly decided Issue No,7 in favour of the plaintiff. The said findings is not sustainable. Therefore, the said issue is decided against the plaintiff. As the plaintiff c^iald not prove the making of Talbs, therefore, he could not exercise his right of pre-emption because he has extinguished his right by not making the required Talbs, therefore, findings of trial Court on Issue No,6 is also not sustainable. The said issue is also decided against the plaintiff/respondent."
' The aforesaid operative part of the judgment of the first appellate Court reveals that petitioner has not stated that he made Talb-i-Mawathiabat at once at the time when he came to know about the sale. This fact is duly depicted from the examinationin-chief of petitioner. The petitioner has stated that he came to know about the sale, he went to Nazir and therefore he made Talb-i- Mawathibat. This fact alone is sufficient to come to the conclusion that the petitioner did not announce at once at the spot that he should file a suit against the respondent for pre-emption.
Therefore, it is not in accordance with section 13 of Preemption Act. The statement of P.W.3 on this point is not in accordance with the statement of the petitioner which are inconsistent with each other. Therefore, first appellate Court was justified to accept the appeal. It was admitted by the petitioner/plaintiff side that petitioner came to know qua the sale on the day of sale on 26-1-1992.
Therefore, the assertion of the petitioner that petitioner came to know about the sale on 24-5-1992 was rightly not accepted by the first appellate Court. It is settled principle of law that first appellate Court is well within its right to appreciate the evidence itself and reverse the finding of the lower Court as per law laid down by the Privy Council in N.S. Venkatagiri Ayyanger and others v. Hindu Religious Endowments Board Madras (PLD 1949 Privy Council 26). The judgment of the Privy Council was considered and relied by this Court in Board of Intermediate and Secondary Education v.
Khalid Mahmood (NLR 1985 Civil 114) which was also upheld by Honourable Supreme Court. It is pertinent to mention here that learned counsel of the petitioner failed to point out that finding of the first appellate Court is based upon misreading or non-reading of record. The petitioner failed to fulfil the requirement to Talbs in terms of section 13 of Pre-emption Act. Therefore, first appellate Court was justified to accept the appeal of the respondent.
' In view of what has been discussed above, this revision petition has no merit and the same is dismissed.