' MAULVI ANWARUL HAQ, J.---Vide registered sale-deed dated 27-4-1991 the respondents purchased suit-land, described in the plaint, for a consideration of Rs.5,00,000. On 1-9-1991 the appellants filed a suit for possession of the suit-land by pre-emption. In the plaint, it was stated that the land has actually been sold for Rs.4,28,000. They claimed to be co-sharers in the suit-land as also owners of adjacent land and sharing a common source of irrigation. The performance of Talbs was pleaded. The respondents in their written statement asserted that they have purchased the land for Rs.5,00,000 and denied the other allegations. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 17-5-1994. A first appeal filed by the appellants was dismissed by a learned A.D.J., Bhalwal, on 14- 10-1997.
2. Learned counsel for the appellants contend that the evidence on record has not been properly read inasmuch as the minor and natural variations have been made the basis for rejecting the testimony of reliable witnesses in the matter of Talbs. No one has turned up for the respondents.
3. I have gone through the records of the learned trial Court, with the assistance of the learned counsel. It will be seen that the only point being agitated pertains to the performance of the statutory Talbs. Now in para.2 of the plaint, it was stated that the appellants came to know about the sale through Javed Shah on 16-8-1991 and they made the Talb in the same Majlis. Now Muhammad Afzal appellant appeared as P.W.1. He stated that Javed Shah came to their Dera on 16-8-1991 in the morning and informed the appellants about the sale whereupon they stated that they will file a pre-emption suit. Now Javed Shah appeared as P.W.2 and he stated that about three months after the sale he went to the Patwari to get a Fard where some guests were sitting who are not known to the witness and they were talking that Khadim Hussain (the vendor) had sold his land to the respondents. He further stated that the Patwari told him that the land has been sold for Rs.4,28,000. Thereafter, he left for his Dera. The next day, the appellants came to his Dera and he asked them that their brother Khadim sold the land and why they have not purchased the land and they replied that he has not sold the land to them and they will file a pre-emption suit.
Thereafter, they went for their own Dera which is at a distance of 2/4 Acres from his Dera. Now these statements were recorded on 14-7-1993. Javed Shah is aged 40 years. Now in the very examination-in-chief, the discrepancy has occurred i.e. Whereas Muhammad Afzal appellant as P.W.1 insists that Javed Shah came to their Dera on 16-8-1991 to tell them about the sale whereas Javed Shah P.W.2 states that the said persons came to his Dera and in response to the query posed by him they made the Talb and then they went for their Dera. Apart from this whereas according to Muhammad Afzal P.W.1, the information was provided on 16-8-1991. Going by the time frame given by Javed Shah P.W.2 the date comes to 28-7-1991.
4. Now as noted by me above, one of the grounds for pre-emption alleged in the plaint is that the appellants own the land adjacent to the suit-land. In his examination-in-chief P.W.4 has stated that the land is located right at the door of their Dera. In his cross-examination, first he expressed ignorance that the respondents had obtained the possession on the spot before the sale. Then he admitted that ever-since the respondents have taken possession, they are in self-cultivation.
According to him, the respondents took possession from the tenant 6/7 months after the registration of the sale-deed. He then stated that Ghazanfar witness is the first cousin of the appellants. Now he further stated that on the same day the said Ghazanfar witness also purchased the land but they did not file a suit because till the date of his statement, he is not aware of the sale and he never told them that he had purchased the land from the same vendor i.e. Khadim Hussain.
5. Now in the matter of possession, Javed Shah P.W.2 stated that the said tenant was the paternal uncle of the appellants, namely, Burhan-ud-Din who is father of Ghazanfar witness. According to him, the day the Patwari told him about the sale the respondents had obtained possession 10/15 days earlier and this was done by ploughing the land with Tractor. He also confirms that this land is right in front of the Dera of the appellants. He then states that Ghazanfar witness purchased land on the same day from Khadim Hussain vendor and took possession the same day and he and the appellants came to know about the sale the same day as Ghazanfar himself told them about it. He further admitted that Ghazanfar also told them the same day that the remaining land i.e. The suit- land has been purchased by the respondents. He then stated that 10/15 days after the sale Khadim vendor delivered possession to the respondents and shifted to Sargodha.
6. Ghazanfar Ali appeared as P.W.4. He has also stated that after harvesting the wheat crop in the year 1991, the tenant i.e. The father of the witness delivered possession to the respondents. It will be noted that this must have occurred a few days after the registration of the sale-deed as stated by the said witness.
7. Having thus examined the records, I do not find any misreading of the evidence by the learned Courts below. It is not a case of minor or natural variations. The vendor is admittedly the real brother of the appellants, living a few Acres away. The land is located right in front of the Dera of the appellants. Admittedly the possession was delivered a few days after the sale and the said informer has stated that Ghazanfar Ali has told him as well as the appellants that the land had been purchased by the respondents the day the sale was registered. The plea taken in the plaint, therefore, has been proved to be false in the evidence of the appellants themselves.
8. I may note here that the learned counsel for the appellants have asserted that there is no denial of the first Talb by the respondents in their written statement specifically. To my mind such a denial is not required in the peculiar circumstances of a pre-emption case governed by provisions of the Punjab Pre-emption Act, 1991, unless and until it was to be stated by the plaintiffs that the vendees were present when the Talb was made. However, it is inherent in the very assertion of the right of pre-emption itself that the said first Talb is to be made and proved in order to save the right from being destroyed. No other point has been urged. The R.S.A. Is dismissed leaving the parties to bear their own costs.
9. The trial Court records be remitted back immediately.