' MAULVI ANWARUL HAQ, J.---Vide Exchange Mutation 1No,973 attested on 21-12-1994, respondents No 1 and 2 acquired the suit-land. On 17-4-1995, the petitioner filed a suit for possession of the suit- land by pre-emptor stating that it was in fact sold for Rs,5000 and that the exchange is disguise.
Reference was made to Mutation No,974 which was attested on the same day whereby the vendor sold the land to the brother of the respondents Nos. 1 and 2. The petitioner claimed to be a co- sharer. Performance cf Talabs was duly pleaded. The suit was contested with the plea that it was an exchange and further that the market value of the property is Rs,400,000. The otherallegations were denied. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has superior right of pre-emption? OPP.
(2) Whether the plaintiff has fulfilled the requisite conditions of talabs? OPP
(3) Whether the transaction of transfer of property is nothing but device to defeat the right of pre- emption? OPD
(4) Whether the property was sold for Rs,5000 if not that is the estensible sale price of suit property? OPD
(5) Whether the plaintiff is entitled to relief prayed for? OPD
(6) Whether the suit is without cause of action? OPD
(7) Whether the suit is barred by limitation? OPD
(8) Whether the suit is not properly valued? If so, what is the correct valuation? OPD
(9) Whether the plaintiff has no need or likelihood of harm, therefore, the suit is not proceedable?
OPD.
(10) Relief.
' Evidence of the parties was recorded. Learned trial Court decreed the suit vide judgment and decree, dated 21-9-1996. The transaction was held to be sale for a consideration of Rs,5000. The petitioner was held to have superior right of pre-emption and to have performed the Talbs. Feeling aggrieved the respondents Nos. 1 and 2 tiled first appeal. This appeal was heard by learned Addl.
District Judge, Sheikhupura who upheld the findings of the learned trial Court on issue No,1 pertaining to superior right of pre-emption. The finding that the transaction was sale was also upheld along with the finding that the consideration was Rs,5000. However, findings on issue No,2 pertaining to Talabs were reversed. The appeal was accordingly allowed and the suit was dismissed vide judgment and decree, dated 26-5-1999.
2. Learned counsel for the petitioner contends that the learned first appellate Court has misread the evidence on record and has resorted to conjectures while attributing the knowledge of sale to his client at a point of time before the one stated by him. Learned counsel for the respondent, on the other hand, contends that the dates given by the various P.Ws. Are conflicting and they were rightly disbelieved by the learned Addl. District Judge.
3. I have gone through the copies of the records appended with thisC.R. With the assistance of the learned counsel for the parties. Only the question of Talabs has been agitated before me by both the sides. Now in para. 3 of the plaint it was stated that the petitioner acquired knowledge of the same on 24-3-1995 when he was told by Abdul Majeed in presence of Rana Zafarul Islam and he made talab. On 29-3-1995 he sent notice of Talab-e-Ishhad, attested by two witnesses which was sent to the respondent under registered cover A.D.
4. Now Muhammad Nazir, petitioner appeared as P.W.6 to make statement in accordance with the said contents of the plaint. This witness was cross-examined at length but nothing derogatory came out. Now the said informer Abdul Majeed appeared as P.W.2. According to the statement recorded by the Court he came to know about the sale on 24-5-1995 from the Patwari. He informed the petitioner who made Talab and then sent a notice on 29-3-1995. It is the said date which is being relied upon by the learned counsel for the respondent. However, nothing turns on the same as it clearly appears to be a clerical error on the part of the Reader of the Court who was being dictated the statement, as per certificate appended by the learned trial Court. Reason being that in his cross-examination three suggestions were given him containing date as 24-3-1995 (this date is mentioned in the plaint and the statement of the petitioner).
5. I may note here that even learned Addl. District Judge has to concede that the mention of date as 24-5-1995 in examination-in-chief of the said witness is a clerical error. P.W. 3 is Zafar Iqbal. Now in his examination-in-chief said reader proceeded to write date an 24-3-1996 which is being referred to by the learned counsel as a discrepancy. Again I find that it is a clerical error as observed by the learned Addl. District Judge himself and the witness meant 24-3-1995. The reason being that the statement itself was recorded on 26-11-1995 i,e, about four months prior to the said date noted in the statement.
6. Now learned Addl. District Judge has in fact not relied upon the said misdescription of the dates in the said statement. However, he has proceeded to observe that since the sale was made by the brother of the petitioner who were living in the same house and further that according to Muhammad Hanif, P.W.4 rumours about sale must have spread 10/15 days thereafter and according to Abdul Ghani, P.W.5 he came to know about the same one month thereafter. Now in absence of any evidence that the petitioner was aware of the sale at a point of time before 24-3- 1995, the knowledge of the said witnesses who had appeared to depose that no notice was affixed on the door of the mosque, would not lead to inference that the petitioner was also aware of the said sale. Reference may be made to the case "Muhammad Sadiq and others v. Saeem Khan"
7. Having thus examined the evidence on record, I do find that the learned Addl. District Judge has proceeded to misread the evidence on record while reversing the findings of the learned trial Court on the issue pertaining to Talabs. This C.R. Accordingly is allowed. The judgment and decree, dated 26-5-1999, passed by the learned Addl. District Judge, Sheikhupura is set aside and the one passed by learned trial Court, dated 21-9-1996 is restored. No orders as to costs.