ABDUL HAMEED DOGAR, J. --- Petitioners seek leave to appeal against the judgment dated 29.11.2002 of a learned Single Judge of the Lahore. High Court. Lahore, whereby Civil Revision No. 547 of 1999 filed by respondents was accepted and the judgment and decree of the First Appellate Court was set aside and that of Trial Court was restored and suit for possession through pre- emption filed by Abdul Majeed, predecessor-in-interest of respondents was decreed.
2. Briefly, stated, facts giving rise to the filing of instant petition are that the suit land measuring 10 marlas situated in the area of Chak ND. 129/SB, Tehsil Silanwali District Sargodha was sold by Ghulam Rasool to Azmatullah, predecessor-in-interest of petitioners vide Mutation No. 655 dated 23.6.1994 against a consideration of Rs. 1,00,000/-. Deceaed Abdul Majeed, predecessor-in-interest of respondents announced his intention to purchase the suit land in the Majlis of the village claiming his superior right of pre-emption on the ground that the suit property was adjacent to his land and Dera. He also claimed that the sale price was actually Rs. 20,000/0 which was in fact the market value in the area at the relevant time. Thereafter said Abdul Majeed sent notice of Talb-I- Ishhad to Azmatullah on 5.9.1994 attested by two witnesses stating the entire facts therein. He, however, filed suit for possession through preemption which was contested by Azmatullah who filed written statement wherein he raised preliminary objections that no notice of Talb-i-Ishhad to Azmatullah on 5.9.1994 attested by two witnesses stating the entire facts therein. He, however, filed suit for possession through pre-emption which was contested by Azmatullah who filed written statement wherein he raised preliminary objections that no notice of Talb-i-Ishhad as required under Section 13(3) of the Punjab Pre-emption Act, 1991 (hereinafter referred to as 'the Act') was served on him and that he had also purchased the land for consideration of Rs. 1,00,000/- for running his business and also incurred a sum of Rs. 6,000/- on its improvement. The Trial Court framed as many as (11) issues and after recording the evidence deceased the suit on 15.7.1997
3. Feeling aggrieved, petitioners preferred appeal which was allowed by the learned Additional District Judge, Sargodha, on 17.2.1999. The said judgment was assailed by respondents before the learned High Court in the above- mentioned civil revision which was allowed vide impugned judgment.
4. We have heard M/s. Arshad Ali Ch. Learned ASC for the petitioners and Zaheer Ahmed Qadri, learned ASC for the respondents at length and have gone through' the record, and proceedings of the case in minute particulars.
5. Learned counsel for the petitioners vehemently contended that learned High Court has not appreciated the evidence brought on record in its true perspective which . Resulted in miscarriage of justice. According to him, the pre requisite conditions of Talb-i-Ishhad` and Talb-i-Muwathibat as prescribed by law were not fulfilled in this case. Neither any date on which plaintiff deceased Abdul Majeed came to know about the sale was disclosed by him in the plaint nor the date on which he desired to pre-empt the land after coming to know for the first time was disclosed. Even the names of two truthful witnesses in whose presence he made declaration to pre-empt have been mentioned. He vehemently urged that the requirement of Talb-i-Muwathibat cannot be fulfilled unless the details, particulars, date, time and place are specifically indicated in the plaint and the names of persons in whose presence such Talab was made. He went on to argue that witnesses, namely, Muhammad Afzal (PW-1), Muhammad Sharif (PW-2) and Muhammad Shafi (PW-3) even did not disclose in their respective statements in evidence the time and the date of sale, therefore, the period for making Talb-i-Ishhad cannot be said to have been made within two weeks from the date of knowledge of sale. Even notice of Talb-i-Ishhad did not bear the time and date of reconfirmation of Talb-i-Muwathibat while making Talb-i-Ishhad. Lastly, the learned counsel contended that the judgment of First Appellate Court is well-reasoned and is based on proper appraisal of evidence and in accordance with law, as such, the same may be maintained. He vehemently stressed upon the case of Akbar Ali Khan and others v. Mukamil Shah and 'others (2005 SCM R 431) wherein according to him, this Court laid down (.L .K. principle that the date and time of making Talb-i-Muwathibat is necessary to be mentioned in the plaint as it puts a limitation on the prospective pre-emptor that he must express his intention to pre-empt immediately and in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or his knowledge, so that the limitation is computed accordingly and secondly for the reason that from the time of making of Talb-i-Muwathibat, the statutory period of 15 days of performance of Talb-i-Ishhad has to be computed.
6. On the other hand, according to the learned counsel for the respondents the impugned judgment does not suffer from any legal flaw and contended that all the three PWs examined are unanimous about the:date, time and place of gaining of knowledge by the respondents regarding sale and have unambiguously deposed that the respondents instantly expressed their intention of preempting the sale. He further contended that the respondents have proved notice of Talb-i- Ishhad by producing its marginal witnesses, namely, (pw-1) Muhammad Afzal, (PW2) Muhammad Sharif and (PW-3) Muhammad Shafi who without any contradiction supported the case of respondents on making of Talabs. He further contended that even service of notice on petitioners is established through the testimony of independent witness, namely. Khizar Hayat, Postman who also produced postal . Receipt of Ex.P-3. He strenuously argued that whosoever comes forward to.
Testify shall be presumed to be truthful unless otherwie proved as it has been held by this Court in the case of Muhammad Ilyas v. Ghulam Muhammad and another (1999 SCM R 958). According to him, the manner of making Talb-i-Muwathibat and sending the notice of Talb-i-Ishhad have been elaborately discussed by a larger Bench of this Court in the case of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCM R 329) and the case of respondents is at par with that case as such it being a decision of larger Bench is binding on the decision of smaller Bench of this Court. On that aspect also earned counsel referred to the case of Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others (1997 SCM R 315).
7. Admittedly, Abdul Majeed, predecessor-in- interest of respondents in the plaint claimed the right of preemption on the basis of being Shafi Jar and Shafi Khalit. According to the plaint on coming to know about the sale he immediately disclosed his intention to pre-empt the suit rand in the majlis of village in presence of PW-2 Muhammad Sharif and PW-3 Muhammad Shafi. According to the averments, the sale was kept secret and was disclosed to the plaintiff after about three months i.e. On 4.9.1994 which fact is established and not rebutted. The factum of sending of,notice of .Talb-i-Ishhad on the next day i.e. 5.5.1994 after getting it attested by two truthful witnesses, namely, Muhammad Sharif and Muhammad Shafi also stood established on the record. Irrespective of above, a glance over the judgment of the Trial Court reveals that defendant Azmatullah Qureshi, 'predecessor-in-interes of petitioners had not filed written statement, as such, though his defence could have been struck of but the Trial Court decided the case on merits. As regards the right of pre-emption, it has been categorically stated by PWs, namely, PW-1 Muhammad Afzal, PW-2 Muhammad Sharif and PW-3 Muhammad Shafi that Abdul Majeed predecessor-in-interest of respondents had the superior right on the basis of contiguity, common boundary line. Common right of passage and common fight of irrigation. Above all there is no exception to the concurrent findings of Trial Court and that of learned High Court on both Talabs, which according to them, were made well in accordance with law. Learned counsel for petitioners though argued at length yet could not -refer to any illegality, misreading or non-appraisal of evidence. It is well-settled principle enunciated by this Court that the judgment of large Bench is binding on the judgment of smaller Bench. Examining the case of respondents on the touchstone of the case of Haji Noor Muhammad (supra). It is found to be exactly the same on all four corners. Thus, it being the decision. Of larger Bench is binding on the smaller Bench. In this context, we are fortified by the case, of Chaudhry Muhammad Saleem v.
Fazal Ahmad and others (1997 SCM R 315) wherein it has been held that the judgment rendered by the Full Bench of this Court comprising five Judges would be binding upon the Bench comprising three Judges. In the case of Haji Noor Muhammad (supra) it has also been held that the plaintiff could not be non-suited merely on the ground that other details of time and place of the Talabs and names of witnesses etc. Had not been specifically mentioned in the plaint. In the case of Allah Baksh and another v. Falak Sher (2004 SCM R 1580) this Court has held that minor discrepancy of time would not come in the way of pre-emptor. This Court also held in the case of Abdul Malik v.
Muhammad Latif (1999 SCM R 717) that the service of registered notice by pre-emptor containing the names of the two truthful witnesses before whom Talb-iIshhad was allegedly made amounted to substantial compliance of the provisions of Section 13(3) of the Act and pre-emptor could not be non-suited on the. Ground that the notice served on the vendee containing Talb-i-Ishhad was not attested by the two truthful witnesses whose names were disclosed in the notice.
8. For what has been discussed above, we are of the considered opinion that impugned judgment is based on 'valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading nor non-reading of material evidence brought on record of misconstruction of facts or law.
9. Resultantly, the petition being devoid of force is dismissed and leave to . Leave Refused.