' NASIR-UL-MULK, J.--- This appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973, directed against the judgment of the Lahore High Court, Multan Bench, on 30-5-2000 arises from a suit for possession through pre-emption filed by the respondent, in the Court of Civil Judge, 1st Class, Khanewal, on 7-12-1991 against the appellant, the vendee of the land. The appellant contested the suit and while deciding all the issues but one, on Talb-i-Ishhad, in favor of the respondent, the Court dismissed the suit on 12-5-1996. The issue of Talb-i-Ishhad was decided against the respondent on the ground that the notice was not signed by him but by his Advocate.
The respondent appealed to the Lahore High Court. On 30-5-2000, the appeal was allowed, the finding on issue of the trial Court on Talb-i-Ishhad was reversed and consequently, the suit of the respondent was decreed.
2. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court entered appearance for the appellant. Though the High Court had reversed the finding of the trial Court on the question of Talb-i-Ishhad and thus, decreed the respondent's suit, the learned counsel for the appellant, made submissions on the issue of Talb-i-Muwathibat, contending that the same had not been proved in accordance with law. He read out the statements of the respondent as well as that of the two witnesses of Talb-i-Muwathibat, Fazal Hussain (P.W.1) and Muhammad Akram (P.W.2), and pointed out that none of them was able to give the date on which the Talb was made. This failure, he contended, was fatal to the respondent's suit and thus, liable to be dismissed in view of the law laid down in Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309.
3. Mr. Gul Zarin Kiyani, learned Advocate Supreme Court appearing for the respondent, questioned the very right of the appellant to assail the finding of the trial Court on the issue of Talb-i- Muwasibat in favor of the respondent as according to the impugned judgment of the High Court, both the parties confined their arguments to the validity of Talb-i-Ishhad. It was argued that though the appeal before the High Court was filed by the respondent, it was open to the appellant to assail the findings of the trial Court on Talb-i-Muwasibat decided against the appellant. By not agitating the issue before the High Court the appellant had conceded the findings of the trial Court.
In the alternative the learned counsel submitted that even if the argument was to prevail the case has to be remanded to the High Court for giving its findings on the issue. As to the merits of the contention, the learned counsel argued that since the evidence was recorded four years after the making of Talb-iMuwasibat, the respondent as well as the witnesses to the Talb cannot be expected to remember the exact date on which the Talb was made. In support of his submissions, the learned counsel pressed into service Nagendra Nath v. Ram Bharosa AIR 1914 Cal. 839, Saheb Khan v. Muhammad Punnah PLD 1994 SC 162, Abdul Qayum v. Mushk-e-Alam 2001 SCM R 798.
4. In para.2 of the plaint, the plaintiff did mention the exact date of 19-10-1991 on which he had received information about the sale of the suit-land in the presence of Muhammad Akram, Fazal Hussain and Muhammad Akbar, he immediately declared his intention to pre-empt the sale. When appearing in the witness-box neither the respondent/plaintiff nor the two witnesses to Talb-i- Muwathibat, Fazal Hussain and Muhammad Akram, mentioned the date of making of Talb in the examination-in-chief. When questioned in cross-examination, none of them was able to give the date and the respondent was only able to say that it was in the month of October or November. In the case of Atiq-urRehman v. Muhammad Amin (supra) a similar situation came up before this Court when the plaintiff was unable to give the exact date of the Talb in his testimony. In para.8 of the judgment, it was held:-- "(8) The pre-emptor in the present case pleaded the knowledge of sale on 14-4-1999 in the plaint but in his statement in the Court he stated in general terms that he having acquired the knowledge of sale about eight months prior to the date of making the statement fulfilled the requirement of Talb-i-Muwasibat and also sent notice of Talb-i-Ishhad on the next day of making Talbi- Muwasibat. The pre-emptor thus, without proving the specific date of making Talb-i-Muwasibat claimed performance of both the Talbs on the basis of the notice of Talb-i-Ishhad."
' Like the present case, the two witnesses produced in support of Talb-iMuwasibat were also unable to give the exact date of the Talb. The Court reversed the judgment of the Lahore High Court in Muhammad Amin v. Atiq-ur-Rehman /005 CLC 1772, holding that since the date of Talb-i- Muwasibat was not established in evidence, the Talb was not proved.
5. The case-law cited by the learned counsel for the respondent is distinguishable. The question for determination before this Court in the case of Abdul Qayum v. Mushk-e-Alam (ibid) was the effect of contradictions in the plaintiff's evidence regarding the time of the day of making Talb-i- Muwasibat. It was this variation which the Court considered to be minor and attributable to lapse of memory. The witnesses however, were otherwise found to be unanimous on the date of making of Talb. The ratio of the case in Atiq-ur-Rehman v. Muhammad Amin (supra) was that the plaintiff had to prove in evidence the date of making of Talb-i-Muwasibat mentioned by him in the plaint, failing which the suit was liable to be dismissed. Undisputedly, the date mentioned by the respondent/plaintiff in the plaint on which Talb-iMuwasibat was made, was not proved in evidence.
6. As to the objection of the learned counsel for the respondent that the appellant had given up challenge before the High Court, to the adverse findings on Talb-i-Muwasibat by the trial Court, the same does not have such force. It was the respondent who had filed appeal before the High Court against dismissal of his suit by the trial Court on account of findings on the issue of Talb-i-Ishhad against him. True that the issue of Talb-i-Muwasibat was decided against the appellant, the same probably was not agitated before the High Court as the respondent must has restricted his argument to the point decided against him by the trial. Court. In any case, issue on Talb-i- Muwasibat was framed by the trial Court and finding given thereon. Even if the point was not agitated by the appellant before the High Court, this Court is not prevented from giving its findings thereon when issue was framed and evidence was led thereon. It is also not necessary to remand the case to the High Court for giving finding on the issue as no factual determination is required, for it is apparent on the face of the record that the respondent had failed to prove in evidence the date of Talb-i-Muwasibat mentioned in the plaint.
7. In view of our finding that the date of making Talab-i-Muwasibat was not established, the finding of the trial Court on the issue is reversed, being contrary to the principle laid down in the case Atiq- ur-Rehman v. Muhammad Amin (supra). Consequently, the appeal is allowed, the impugned judgment and decree of the High Court are set aside and the suit of the respondent is dismissed with no order as to cost.