' TALAAT QAYUM QURESHI, J.---The petitioner/plaintiff filed a suit for possession through pre- emption of land measuring 2 Kanals 1 Marla comprising Khasra No,1633 situated at village Kotkay, District Mansehra against the respondents/defendants in the Court of learned Civil Judge, Mansehra. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 24-6-2003.
2. Being not satisfied with the said judgment and decree, petitioner filed appeal in the Court of learned District Judge which was entrusted to learned Addl. District Judge-III, Mansehra who after hearing the learned counsel for the parties dismissed the appeal vide judgment/decree dated 27- 9-2004.
3. Being not contented with the judgments and decrees of the Courts below the petitioner has filed the revision petition in hand.
4. Mr. Malik Muhammad Asif Advocate, learned counsel representing the petitioner argued that the Talbs were made in accordance with law and the witnesses produced in order to prove Talb- iMuwathibat as well as Talb-i-Ishhad in _substance had proved that the Talb-i-Muwathibat was made by the petitioner at 8-00 p.m. On 31-5-1995 in the house of Sultan.
5. About the Talb-i-Ishhad, the learned counsel argued that inadvertently instead of writing the name of Abdur Rehman the name of Syed Imdad Hussain was mentioned. However, the said mistake was corrected while filing the suit, in the plaint.
6. The Courts below have not only failed to appreciate the evidence available on record but they also failed to appreciate that the Talb-iMuwathibat was made on 31-5-1995, Talb-i-Ishhad on 1-6- 1995 and their statements were recorded on 25-5-2003, i,e,, after lapse of 8 years and he being human being was thrown to forget about things which could never be made for non-suiting the petitioner/plaintiff. Reliance in this regard was placed on 2001 SCM R 798, PLD 2003 Pesh. 189 and PLD 2003 Pesh.
179.
7. On the other hand Mr. Muhammad Naeem Anwar Advocate, learned counsel representing respondent No,1 argued that it was the bounden duty of the petitioner/plaintiff to have proved his case but he failed to prove that Talb-i-Muwathibat was made in accordance with law. The witnesses examined by him were not truthful witnesses. Hence were rightly disbelieved by the courts below.
8. It was also argued that notice of Talb-i-Ishhad Exh.PW.8/2 was served upon Syed Imdad Hussain and not on Syed Ibrar Hussain which is evident from the record and this could never be said to be a clerical mistake.
9. It was also argued that the Courts below have properly appreciated the evidence available on record and have rightly dismissed the suit as well as appeal and the concurrent findings of the Courts below need no interference in exercise of revisional jurisdiction by this Court.
10. I have heard the learned counsel for the parties and perused the available record:
11. The admitted position in this case is that land measuring 2 Kanals 1, Marla comprising Khasra No,1633 situated at village Kotkay, District Mansehra has been purchased by respondents through registered Sale-deed No,1054 dated 31-5-1995 registered in the office of sub-Registrar Mansehra Exh.PW .1/1.
12. The case of the petitioner/plaintiff is that he mad Talb-iMuwathibat in the house of Sultan in presence of Muhammad Hazoor (P.W.9) and Abdur Rehman (P.W.10) and sent notices of Talb-i- Ishhad Exh.P.W.8/1 and Exh.P.W.8/2 on 1-6-1995 through registered cover. The petitioner/plaintiff was examined as P.W.B. In the cross-examination he stated that when Talb-i-Muwathibat was made by him only Muhammad Hazoor (P.W.9) and Sultan (not examined) were present and none-else was present there. It is worth-mentioning that in para. 2 of the plaint he had stated that at the time of making of Talb-i-Muwathibat Muhammad Hazoor and Abdur Rehman were present. The presence of Sultan was never mentioned in the plaint. Not only he deviated from his plaint but the witnesses examined by him in support of the Talb-i-Muwathibat did not fully support his case. Muhammad Hazoor (P.W.9) when cross-examined stated that at the time of making of Talb-i-Muwathibat the other inmates of the house were also present {{URDU TEXT}}. Similarly, Abdur Rehman (P.W.10) when examined stated that at the time of making of Talb-i-Muwathibat, Gustasip and Muhammad Fiaz were also present. The presence of these two persons is also fortified by Exh.P.W.10/D-1 which is a notice of Talb-i-Ishhad given by Muhammad Fiaz and to one Iftikhar Khan. In paragraph No,2 of the said notice it was mentioned that while making Talb-i-Muwathibat; by Muhammad Fiaz, Gustasip and Abdur Rehman were also present. The argument of the learned counsel for the petitioner that the witnesses were examined after lapse of 8 years, therefore, they were not expected to remember the minor details has no force.
13. No doubt this Court in Mst. Gohar Sultan v. Gul Waris Khan PLD 2003 Peshawar 189, Muhammad Khan v. Bashir Ahmad PLD 2003 Peshawar 179 and august Supreme Court of Pakistan in Abdul Qayyum v. Mushk-e-Alartt and others 2001 SCM R 798 held:-- "The witnesses were making statements after lapse of considerable period from the date of Talb-i- Muwathibat, therefore, they were not expected to remember each and every minor details as to time. These were natural variations which a human being in the ordinary course of business would certainly make which do not in any way detract from the veracity of their evidence."
14. No doubt the statements of the witnesses were recorded after lapse of 8 years but these contradictions cannot be termed as minor contradictions. These are in fact major contradictions which clearly prove that the witnesses of Talb-i-Muwathibat were not truthful and they were avoiding to make correct/true statement about the persons who were present at the time of making of Talb-i-Muwathibat. Therefore, the judgments cited by the learned counsel for the petitioner cannot help him.
15. It is by now a settled law that a party producing a witness is bound by their statements. Reliance in this regard is placed on Wali Muhammad v. Mst. Sarwar Bibi NLR 2001 SCJ 501 and Allah Dad v.
Government of Pakistan 1999 CLC 1571.
16. So far as Talb-i-Ishhad is concerned, notice Exh.PW.8/2 was sent in the name of Syed Imdad Hussain. There is gulf of difference between the two names, i,e, Syed Imdad Hussain and Ibrar Hussain Shah. Mentioning the name of Syed Imdad Hussain could not be termed as clerical error.
Talb-i-Muwathibat, it is also settled law, is to be proved through oral evidence and there are no number of witnesses required by law to prove the said Talb. Articles 70 and 71 of the Qanune- Shahadat Order are clear about the mode of proof through oral evidence. The proof of Talb-i- Muwathibat is not merely a technicality but in fact the very right of pre-emption is not activated unless Talb-iMuwathibat is performed in accordance with law. The august Supreme Court of Pakistan in a very illuminative judgment reported in Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 held:-- "12. Moreover, the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre-emption. The law as well as the fact is that the very right of pre-emption is not activated unless Talb-i-Muwathibat is performed. It should not be dubbed as mere technicality at times, it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of preemption. The latter might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality, this Court in Said Kamal Shah's case PLD 1986 SC 360 would never have gone, to the extent of saying that Talb-i- Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provisions qua Talb-i-Muwathibat or Talb-iIshhad. It was on the basis of such verdict from this Court that tens of thousands of pre- emptors in the country were non-suited because of non-assertion and performance of Talb-i- Muwathibat though not required by the then prevailing pre-emption laws in the country. What we want to emphasize is that Talb-iMuwathibat should not be taken' lightly and should not be considered as a mere technicality. Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of a right of preemption."
17. Keeping in view the above discussion it can safely be held that the Courts below have properly appreciated the evidence and applied the law applicable to the case in hand. I have not been able to find out any misreading or non-reading of evidence or illegality or any material irregularity or any jurisdictional error or defect in the concurrent findings of the courts of competent jurisdiction.
18. Resultantly, this revision petition is dismissed. There shall however, be no orders as to costs.
Announced.