' JAWWAD S. KHAWAJA, J.---The petitioners-defendants impugn the appellate judgment and decree, dated 8-5-2006 whereby the decree of the learned trial Court, dated 26-10-2004 has been set aside and a suit filed by Afraisab Khan, respondent-plaintiff/pre-emptor has been decreed.
2. The learned trial Court has dismissed the suit of the petitioners on the ground that he had failed to prove Tabls required undersection 1.3 of the Punjab Pre-emption Act. This finding has been reversed by the learned appellate Court. I have heard learned counsel for the petitioners and have gone through the record with his assistance. The assertion of the plaintiff was that Muhammad Zulfiqar, petitioner No,1, himself came to his dera with the object of taking possession of the suit- land. According to the plaint, the respondent-plaintiff made Talb-iMuwathiba at that time in the presence of Muhammad Nawaz and Muhammad Riaz who are respectively his munshi and driver's son. The learned trial Court held that the respondent had failed to prove prima facie that there is valid basis for this conclusion because the petitioners purchased the suit property through Mutation No,334, dated 26-9-1999 wherein it has been recited that the possession of the property has been delivered to the petitioners-defendants. The khasra girdawari (Exh.D.2) also shows that the petitioners are in possession from kharif-1999. It would otherwise also appear reasonable to argue that the petitioners obtained possession at the time of registration of the sale-deed.
3. The respondent-plaintiff is the brother of the vendor Nadir Shahbaz Khan. His assertion that the petitioners are not in possession of the suit property is not borne out from the record. Furthermore, neither the respondent nor the learned appellate Court has dealt with this aspect of the case appearing from the khasra girdawari (Exh. D.2) showing that the petitioners were in possession of the suit-land. The learned appellate Court has proceeded on the premise that Exh.D.2 relates to Kharif-1999 and has held on this basis that the petitioners took possession in January, 2000. This conclusion, however, does not take account of the fact that the document does show the petitioners to be in possession even though the said document relates to a period subsequent to the date of sale. There is thus no basis, prima facie, of the plaintiff's assertion that he was and continues in possession of the suit-land.
4. In addition to the above, the respondent himself admitted when he appeared as P.W.l that he had sent notices of Talb-i-Ishhad to three of the petitioners, namely, Abdul Sattar,. Iftikhar Parvez and Muhammad Ashraf at an address in Jhang, although he was aware that they were resident in Rahimyar Khan. This constitutes a failure to comply with the requirements of Talb-i-Ishhad as set out in section 13 of the Punjab Pre-emption Act.
5. Learned counsel for the respondent-plaintiff was unable to controvert the above submissions. In fact from the testimony of the respondent as P.W.1, it is clear that he was fully aware that petitioners Abdul Razzaq and Muhammad Ashraf were resident in Rahimyar Khan but notices were not sent to him at Rahimyar Khan. Learned counsel for the respondent attempted to argue that these petitioners were residing in Mouza Jana where the land is situate but he was unable to substantiate his submission on the basis of the record.
6. I also note that the story set up by the respondent that he became aware of the sale when the petitioners came to him for delivery of possession of the suit-land was rightly disbelieved by the learned trial Court Exh.D.2 shows that the land was not in the possession of the respondent-plaintiff but was being cultivated by one Allah Ditta son of Rajab. This person was not examined by the respondent in support of his case. Furthermore, Exh.D.2 shows that Allah Ditta was a tenant under the vendor Nadir Shahbaz Khan, who is the brother of the respondent-plaintiff. The learned appellate Court unfortunately has not taken note, of these material circumstances and has also not met the reasoning, which prevailed with the learned trial Court for dismissing the suit.
7. In view of the foregoing discussion, the impugned appellate decree is set aside and the decree of the learned trial Court, dated 26-10-2004 is affirmed.