MAULVI ANWARUL HAQ, J.---Vide Mutation No.2446 attested on 19-2-1999 the respondents purchased suit-land, mentioned in the plaint, for a consideration of Rs.40,000. On 16-6-1999 the petitioner filed a suit for possession of the suit-land by pre-emption. He claimed to be a Shafi Sharik, Khalit and Jar. The performance of Talbs was pleaded. In the written statement, the plea taken was that the vendor Mst. Ashraf Mai had, in fact gifted away the suit-land to the respondents as she is the daughter-in-law of respondent No.1 and sister-in-law of respondent No.2. It was pleaded that the respondents are themselves co-sharers in the suit-land. Following issues were framed by the learned trial Court:--
(1) Whether the suit is not maintainable according to preliminary objection No. 1 and is liable to be dismissed? OPD
(2) Whether the plaintiff has superior right of pre-emption? OPP
(3) Whether the plaintiff has fulfilled the requirements of Talbs according to law of pre-emption?
OPP
(4) Whether the plaintiff is entitled to get the decree in suit for possession through pre-emption?
OPP
(5) Relief.
Evidence of the parties was recorded. The learned trial Court found under Issue No.1 that the transaction was a sale for consideration of Rs.40,000. Under Issue No.2, it was found that both the parties have equal right of pre-emption. Under Issue No.3, it was found that Talb-i-Muwathibat has been made but Talb-i-Ishhad has not been made. The suit was accordingly dismissed on 15-3- 2002. A first appeal was filed by the petitioner before the learned Court of first appeal. Only Issue No.3 pertaining to Talbs was agitated. The respondents did not question the findings on Issue No.1 holding the transaction to be a sale for consideration of Rs.40,000. The finding on Issue No.3- pertaining to the Talbs was affirmed by the learned District Judge, Dera Ghazi Khan, who dismissed the appeal on 20-1-2003.
2. Learned counsel for the petitioner contends that evidence on record pertaining to the performance of Talbs has been misread by the learned Courts below. According to him, the learned lower Courts have acted with material irregularity in the exercise of their jurisdiction while insisting that the petitioner ought to have produced the original notices or to have sought permission for secondary evidence. Learned counsel for the respondents while supporting the said findings has urged that his clients have an equal right of pre-emption and further has tried to attack the finding of the learned trial Court on Issue No.1 by urging that it was a gift and not a sale.
3. I have gone through the copies of the records. Now so far as the finding recorded by the learned trial Court on Issue No.1 is concerned, the same was not at all questioned before the learned Court of first appeal. Even otherwise, there is no evidence on record that the transaction was a gift and not a sale as recorded in Mutation No.2446. I am, therefore, not inclined to interfere in this civil revision in the matter of said finding. So far as the superior right of pre-emption is concerned, learned counsel for the petitioner admits that both the respondents are also co-sharer in the suit- land.
4. Now in the matter of Talbs, I have already noted above that the learned trial Court has found that the Talb-i-Muwathibat had been performed. However, the learned District Judge has observed that neither the first nor the second Talb has been proved. Now in para.5 of the plaint, it was stated that the petitioner was informed about the sale by Abdul Aziz at 5-00 p.m. On 10-6-1999 and he made a first Talb. Thereafter, he made the Talb-i-Ishhad in presence of the two witnesses and issued notices on 12-6-1999 attested by witnesses under registered cover A.D. The original postal receipts were appended with the plaint as also the copies of the notices. The petitioner appeared in the witness-box as P.W. To state in accordance with the said pleadings. Abdul Aziz informer appeared as P.W.2 while Zafar Iqbal appeared as P.W.3. P.W.2 and P.W.3 also proved the notices by stating that the second Talb was made in their presence and they signed the notices. The copies of the notices are Exhs.P. 1 and P.2 while the postal receipts are Exhs.P.4 and P.S. Nothing was brought out in the cross-examination of these witnesses. Noor Muhammad respondent appeared as D.W. 1 to state that he had not received any notice. The relevant suggestion was made and, of course, was denied.
5. Now here is no plea and, of course, no evidence on record that the petitioner was aware of the sale at any time before 10-6-1999. No material discrepancy stands pointed out in the statements of the said witnesses. The learned District Judge has, therefore, not properly read the statements while setting aside the finding of the learned trial Court that Talb-i-Muwathibat has been proved.
Now so far as the Talb-i-Ishhad is concerned, both the Courts below have somehow or the other observed that it is written in the plaint that original notices are annexed. In the first instance, the said fact is impossible, the reason being that the original notices had to be in possession of the addressees and, in the second instance, the learned Courts below have failed to read the plaint, wherein it is specifically mentioned in para.6 that the original postal receipts but copies of the notices are annexed. Under the law (Article 77 of the Qanun-e-Shahadat Order, 1984) a notice to produce is not required when the document sought to be proved is a notice. There is no plea that the notice was not properly addressed. No evidence has been led to rebut the presumption attached to the postal receipts produced by the petitioner. It will, therefore, be deemed that the notices having been posted in the normal course under registered cover A.D. Have reached the destination. Reference be made to the case Khalid Hussain v. Muhammad Baqir 2002 YLR 2294. I also find that somehow or the other the learned District Judge has observed that the notices Exhs.
P.1 and P.2 did not refer to the first Talb. I have examined the said notices and the reference to the first Talb is very much there. I, therefore, do find that the petitioner proved a valid Talb-i- Muwathibat and this was confirmed by a valid Talb-i-Ishhad. Now the pre-emptor as well as both the vendees have equal right of pre-emption. This being so, they will be sharing the land in accordance with section 20 of the Punjab Pre-emption Act, 1991. The civil revision accordingly is allowed. Both the impugned judgments and decrees passed by the learned lower Courts are set aside and a decree is passed in favour of the petitioner/plaintiff and against the respondents/defendants in respect of 1/3rd share- in the suit-land measuring six Kanals, mentioned in the plaint, subject to deposit of a sum of Rs.13,334 by the petitioner with the learned trial Court on or before 30-6-2006. This will, of course, subject to the adjustment of any amount that might have been deposited by the petitioner as Zar-i-Saum. In case the petitioner fails to make the deposit on or before 30-6-2006 as directed, the suit shall stand dismissed with costs throughout. At the moment, the parties are left to bear their own costs.