' MUHAMMAD MUZAMMAL KHAN, J.---This civil revision assails the judgments and decrees dated 21- 12-1996 and 21-1-1998 passed by the learned Civil Judge and the learned District Judge Sargodha, whereby the suit of the respondents was decreed and appeal of the petitioner was dismissed, respectively.
2. Precisely, relevant facts are that the respondents filed a suit for possession through pre-emption against the sale of land measuring 27 Kanals described in the plaint, effected through Mutation No.835 dated 19-9-1993 for an amount of Rs.1,32,000 in favour of the petitioner. Superior pre- emptive right was claimed being "Shafi Khalit" and "Shafi Jar" and it was pleaded by the respondents that they on 26-12-1993 while sitting in their "Baithak" Mubarik Ali son of Bashir Ahmad at 9-00 a.m. Informed them regarding the sale, on which they immediately exclaimed their intention of pre-empting it, as they had superior pre-emptive right. They also averred that after performing Talb-eMuwathibat, a notice attested by 2 truthful witnesses was dispatched to the petitioner under a registered postal cover acknowledgement due dated 1-1-1994 and in this manner they performed Talb-eIshhad and thereafter by filing the suit, fulfilled the requirement of Talb-eKhasumat.
3. The petitioner being defendant in the suit contested it, by filing written statement wherein he besides denying performance of Talbs by the respondents, refuted their claim of superior preemptive right and pleaded that his preemptive right is superior to that of the respondents.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
The learned Civil Judge who was seized of the matter after doing the needful decreed the suit of the respondents vide judgment and decree dated 21-12-1996.
4. The petitioner aggrieved of the decision of the trial Court filed an appeal before the learned District Judge but remained unsuccessful as his appeal was dismissed vide judgment and decree dated 21-1-1998. Thereafter, the petitioner filed the instant revision petition for setting aside the concurrent judgments and decrees of the two Courts below which was admitted to regular hearing and after completion of service and record, the same has now been placed for final determination.
The respondents are represented through their counsel.
5. The learned counsel for the petitioner submitted that the respondents could not prove performance of Talbs in accordance with law and thus, their pre- emptive right, if any, stood extinguished in terms of section 13 of the Punjab Pre-emption Act, 1991. He further submitted that the petitioner was also equipped with same pre-emptive qualification, as asserted by the respondents and his land adjacent to the land in question being in excess of the area owned by the respondents, suit of the respondents could not have been decreed and this aspect of the matter escaped notice of the 2 Courts below, negatively reflecting on their judgments.
6. The learned counsel appearing on behalf of the respondents refuted the arguments of the petitioner and supported the judgments and decrees of the 2 Courts below and urged that the concurrent findings of fact are immune from security in revisional jurisdiction and besides it respondents proved through consistent evidence performance of Talbs in accordance with law, thus, their suit has rightly been decreed. It was also contended that the respondents had superior preemptive right quo the petitioner, as their land was adjacent to the land sold and is more in area, as compared to the petitioner.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Undeniably, better statement of one of the respondents/ plaintiffs, namely Gulzar Ahmad was recorded by the learned trial Judge on 13-2- 1994, wherein he did not depose regarding the fact of having made immediate and prompt Talb- e-Muwathibat on gaining the knowledge of the sale and in this statement his stance was that he gained the knowledge through Muhammad Ahmad Lamberdar. This better statement recorded on 13-2-1994 is in form of replication and shall be considered as part of the pleadings, as held in the cases of Mst. Fattan Bi and 2 others v. Fateh Muhammad and 6 others (PLD 1974 Lahore 458) and Syed Mohsan Raza Bokhari and 4 others v. Syed Azra Zainab Bokhari (1993 CLC 31).
8. The case as put forth by the respondents in their para. No.2 of the plaint is that on 26-12-1993 one Mubarik Ali son of Bashir Ahmad informed regarding the sale at 9-00 a.m. While they were sitting in their Baithak and on gaining the knowledge they immediately expressed their intention of getting the land through pre-emption and thus, performed Talb-e-Muwathibat. Gulzar Ahmad one of the respondents whose better statement was recorded by the trial Court on 13-2-1994 appeared as P.W.1 and deposed in support of averments in the plaint. P.W.2 rendered material support to the case of the respondents, pleaded in their plaint and alike support was given by P.W.3.
9. Gulzar Ahmad while making his better statement on 13-2-1994 did not utter a work regarding performance of Talb-eMuwathibat besides it he stated that information of sale was conveyed to them by Muhammad Ahmad Lamberdar whereas while appearing as. P.W.1 he deposed that information of sale was conveyed to them by Mubarik son of Bashir Ahmad P.W.2 This material contradiction in their case, brought on record through plaint and statement of P.Ws. Demolished the entire structure raised by them in connection with performance of Talb-e-Muwathibat but remained escaped notice from both the Courts below while deciding Issue No.5. As a matter of fact, respondents did not perform this Talb, at all thus I have no hesitation to hold that the respondents failed to prove performance of Talb-eMuwathibat, in accordance with law.
10. The respondents have two other brothers and all 4 of them jointly owned land in Kila. No.23 to the extent of 1/4 share each (Exh.P.4), besides it Sardar Khan (petitioner) owned Kila No.18 as per entries in the Jamabandi for the year 19921993 (Exh.D.1). Joint share of the respondents in Kila No.23 comes to 4 Kanals and as against it adjacent land of the petitioner in Kila Nos.18 and 23 was 9 Kanals. Both the lands owned by the parties are adjacent to the land subject of the suit. Both the petitioner and respondents are Shafi Khalit and Shafi Jar, thus the land of the petitioner being in excess in area, to the land of the respondents they had no superior pre-emptive right against the petitioner but both the Courts below without making any calculation erroneously found that the respondents had a superior pre-emptive right.
11. For what has been discussed above I am constrained to hold that both the Courts below incorrectly decreed the suit of the respondents, out of misreading the evidence on the file and without calculating the land adjacent to the land sold, owned by each of them, hence, their judgments being contrary to the record and tainted with illegalities and irregularities, as envisaged by section 115, C.P.C. Are not sustainable at law. This revision is accordingly accepted and suit .Of the respondents for possession 0-trough pre-emption is ordered to be dismissed, with no order as to costs.