' MUHAMMAD MUZAMMAL KHAN, J.--- Instant civil revision assailed the judgment/decree-dated 3- 3-2006 passed by the learned Additional District Judge, Jhang whereby appeal filed by the respondent was, accepted and his suit for possession through pre-emption was decreed, reversing the judgment/decree of the trial court.
2: Succinctly, relevant facts are that respondent filed a suit for possession through pre-emption against the sale of suit-land in favour of the petitioner vide mutation No,2790 dated 19-9-1997 for a consideration of Rs,70,000. Respondent pleaded in his plaint that he gained knowledge of the sale through one Ghazanfar Ali Shah son of Sultan Ali Shah on 23-9-1997 at 2-00 p.m. When he was sitting in his residential, house and he instantly exclaimed his intention of preempting the sale, in presence of .The named witnesses. It was further averred that notice of "Talb-i-Ishhad" attested by two truthful witnesses, was dispatched through registered post on 24-9-1997 and thereafter by filing suit the requirement. Of "Talb-iKhasumat" was fulfilled. He claimed superior right of pre- emption qua the petitioner being "Shafi Sharik" etc.
3. Petitioner being defendant in the suit, contested the same by filing written statement wherein he raised certain preliminary objection and refuted the averments 'in the plaint and specifically denied performance of "Talbs" in terms of section 13 of Punjab Pre-Emption Act, 1991. 'Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge seized of the suit, after doing the needful, dismissed the suit of the respondent vide his judgment/decree-dated 30-9-2003.
4. Respondent aggrieved of dismissal of his suit, filed an appeal before- the learned Additional District Judge, where he succeeded, as his appeal was accepted and his suit was decreed subject to deposit of remaining sale price, within one month vide appellate judgment/ decree dated 3-3- 2006. Petitioner, thereafter, filed instant revision petition for .Adjudgment of appellate judgment/decree. Respondent in response to notice by this court, has appeared and was represented through his counsel.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. This was a case of judgments at variance by the two courts below and serious misreading of evidence was attributed to the court of appeal who had returned findings that respondent had performed "Talbs" in accordance with law. The only point which requires determination by this court is, as to whether respondent performed "Talbs" according to the law applicable. Issue No,5 related to this controversy which was answered in negative by the trial court but while reversing those findings, the same was found in positive by the learned Additional District Judge. Onus of issue No,5 was placed on the shoulders of the respondent and he in order to discharge it, produced four witnesses including his own statement. Earlier to scan of statements of the P.Ws, narration in Para 6 of the plaint have to be kept in mind wherein respondent had pleaded that knowledge of sale came to his notice on 23-9-1997 through one Ghazanfar Ali Shah alias Ghazi Shah son of Sultan Ali Shah, at about 2-00 p.m. At his own residential house. The informer namely Ghazanfar Ali Shah has not been produced by the respondent in the witness box in order to get corroboration to his deposition and witnesses. He produced P.Ws. 2 and 3 who were allegedly present in his house on 23-9-1997 at 2-00 p.m. When he gained knowledge of the sale. Neither P.W.2 nor P.W.3 mentioned month,'year or the period of gaining of knowledge by the respondent of the sale, P.W.3 is real brother of the respondent but he contrary to averments in the plaint, deposed that they were sitting in front of house of-the respondent when Syed Ghazi Shah conveyed the respondent the information of the transaction of sale. Both these witnesses were also not confronted with the notice of "Talb-i-Ishhad" (Exh.P.2) and remained silent about its dispatch through post. Similar is the statement of the respondent as P.W.4 who did exclaim that he will pre- empt the 'sale by filing a suit. And instead, simply stated that his pre-emptive right was superior qua the petitioner and this statement does amount to "Talb-i-Muwathibat". He also did not utter a word about the date, month or year of gaining of knowledge from the above noted informer. In light of such kind of evidence explanation of the learned counsel for the respondent that since the sale took place on 19-9-1997, respondent gained knowledge of it on 23-9-.1997, the notice of "Talb-i- Ishhad" was dispatched on 24-9-1997 and the suit was filed on 17-1-1998, there was no necessity for the witnesses to detail' the exact date or year of performance of "Talb-i-Muwathibat" by the plaintiff/respondent, has not persuaded me to contribute to the findings returned by the learned Additional District Judge, which were clearly opposed to the settled law -on the subject. A pre- emptor has to prove with all precision through consistent/ unimpeached evidence, the place along with time, day, month and year of gaining of knowledge of the sale and instant performance of "Talb-i-Muwathibat" in the same meeting/Majlis because this is the date from which the period of performance of "Talb-i-Ishhad" is to be determined and all other related acts were to be done by him. According to my humble estimation, respondent had miserably failed to prove spontaneous performance of "Talb-i- Muwathibat" on gaining of knowledge and the entire fiber attempted to be weaved by the statement of P.Ws. Was apparently afterthought as the vendor was none else butwas real sister in law of the respondent. Significance of non-production of informer was earlier determined by this court in the judgments in the cases of Muhammad Yousaf v. Muhammad Rafique and others (PLD 2006 Lahore 39) and. Amin ud Din v. Mst. Zarina (2003 CLC 1775) and it was held that the "informer" being a star witness,, can render substantial support to other witnesses of the pre-emptor and his non-production would negatively reflect on his claim. Light of the standard of depositions of respondents witnesses and non-examinations of the "informer", judgment passed by the trial Court was justified.
6. Statements of P.Ws. 2 to: 4 were of general nature, without specifying the date/month/year of acquiring the knowledge by the respondent and their general kind of depositions were not enough to prize the respondent with a decree for pre-emption, as he on account of non-performance of "talbs" was to extinguish his pre-emptive right, if any. Reference in this behalf can be made to the judgment in the case of. Atiqur Rehman through. (Real Father) and another v. Muhammad Amin (PLD 2006 SC 309). All this, constrained me to hold that the suit of the respondent could not have been decreed as he could not prove instant performance of "Talb-i-Muwathibat" when he came to know of the sale as asserted in the plaint. Scan of record and impugned appellate judgment revealed that controversy was not correctly put to rest and the learned Additional District Judge, fell in error in reversing the reasoned judgment of the trial Court without meeting the points evolved therein and thus committed illegality/irregularity envisaged by section 115, C.P.C.
7. For the reasons noted above, this revision petition is accepted and appellate judgment/decree dated 3-32006 is set aside, reviving the judgment/ decree, dated 30-9-2003 passed by the trial Court. There will be no order as costs.