' JAWWAD S. KHAWAJA, J.---Rashid Ahmad, petitioner/defendant impugns the concurrent decrees of the learned trial Court dated 14-3-2002 and of the learned appellate Court dated 11-11-2003, whereby a suit filed by Nasar Din respondent/plaintiff seeking possession of the suit property through pre-emption, has been decreed.
2. The facts of this case are simple. The petitioner/defendant purchased 2 Kanals and 2 Marlas of land vide Mutation No.5704 sanctioned on 18-11-1997 from Beer Din and Sardar Ali vendors, who are full brothers of the respondent Nasar Din. The respondent filed his suit for preemption on 4-2-1998.
3. Learned counsel for the Petitioner/defendant had expressly asserted that the respondent had failed to fulfil the requirements of talbs as set out in section 13 of the Punjab Pre-emption Act, Issue No.5 was, thus, framed in the following terms:-- "Whether the plaintiff has made Talbs according to law? OPP."
4. Learned counsel for the petitioner has taken me through the testimony of the respondent, who appeared, as P.W.6 to support his own case. I have gone through the said testimony. The respondent has been evasive in his cross-examination. He has deposed that he did not remember the date, month or even the year in which the impugned sale took place. Furthermore, during his cross-examination he has expressly deposed that he had sent the notice of Talb-i-Ishhad one and a half month after the date he received knowledge of the sale.
5. Learned counsel for the petitioner/defendant contends that in the light of the above testimony, it is clear that the notice of Talb-i-Ishhad was not given within the time prescribed by law. It is further submitted that the two witnesses of Talb-i-Muwathibat produced by the respondent/plaintiff are his brothers-in-law and are not independent witnesses.
6. According to learned counsel for the petitioner, the learned trial Court did not even advert to the statement of the respondent that he had issued the notice- of Talb-i-Ishhad one and a half months after the date he received information of the sale. The appellate Court has also not given due consideration to the said testimony and has instead relied on testimony given by the respondent on another occasion in which he filled the lacunas left in his earlier testimony.
7. Learned counsel for the respondent has acknowledged that in his testimony as P.W.6 the respondent/plaintiff had stated that notice of Talb-i-Ishhad was given one and half months after he got knowledge of the sale in question. However, it was argued that the said testimony was not valid because the respondent's counsel was a witness in the case. This contention has no merit at all. The fact that the respondent's counsel was also a witness, did not, in any manner, disqualify him regarding the evidence led by the respondent/plaintiff.
8. The clear statement as to notice of Talb-i-Ishhad leaves me in no manner of doubt that the notice of Talb-i-Ishhad was not made within the time period allowed under section 13 of the Punjab Preemption Act. Furthermore, the subsequent testimony of the respondent/plaintiff, which contradicts his evidence recorded on 19-7-1999, shows that he is not a credible 113 witness.
9. Both Courts below have ignored the aforesaid materials aspect of the case while decreeing the pre-emption suit filed by the respondent/plaintiff. For this reason the judgments and decrees of the two Courts below are not legally sustainable. The same are, therefore, set aside. As a result, the suit filed by the respondent/ plaintiff is dismissed.