' MUHAMMAD SAIR ALI, J.- This judgment shall deal with and decide Civil Revisions Nos.779 and 1912 of 2002 arising out of one common judgment and involving the identical questions of the law and facts and being between the same parties.
2. Respondent No.l Muhammad Latif filed a suit for possession through preemption against the petitioner and respondent No.2 seeking to pre-empt the sale of the suit-land by Muhammad Arshad and Nargis Perveen to the petitioner per Mutation No.4238 dated 16-1-1994. The respondent' plaintiff claimed his superior right as. The co-sharer in the same Khewat and so alleged due performance of Talbs.
On contesting written statement, nine issues were framed by the learned trial Judge. Evidence was recorded. The learned trial Judge through judgment and decree dated 17-2-2001 dismissed the suit mairily bn the ground that the performance of Talbs was not proved. Appeal filed by respondent No. 1/plaintiff there against was accepted by the learned Additional District Judge, Kharian decreeing his suit only against the petitioner through judgment and decree dated 9-3-2002. Hence the present civil revision.
3. No one has appeared on behalf of the respondents despite notice. They are thus proceeded against ex parte.
4. The learned counsel for the petitioner stated that the only issue remaining relevant at the stage of the present civil revision was as to "whether the plaintiff has fulfilled the conditions of Talb-e- Muwathibat and Talb-e-Ishhad. Before the institution of this to law?" or not. He also stated that the learned trial Court non-suited respondent No. 1 on the basis of his failure to plead the date, the time, and the place of the knowledge of the sale-transaction and the corresponding exercise of Talb-e-Ishhad and the learned first Appellate Court decreed the suit of respondent No. l reversing the findings of the learned trial Court. And that the litigated question before this Court was that on the admitted failure of the plaintiff/respondent No. l to specifically plead and state in para.3 of his plaint, the date, the time and the place of the acquisition of knowledge of the sale transaction and performance of Talb-e- Muwathibat, could be allowed to prove the same in the evidence in order to maintain his suit.
5. A bare perusal of the plaint would show that the plaintiff pre-emptor (respondent No.l) had neither pleaded nor specified the date, the time and the place of meeting in which he acquired the knowledge of the sale transaction and purportedly exercised right of Talb-e- Muwathibat.
6. In para.3 of the plaint, the plaintiff pre-emptor only pleaded that the moment he came to know of the sale transaction, he promptly stated in the same meeting that he had a superior right and would therefore, exercise the superior right of pre-emption to pre-empt the sale transaction. He however, did not plead the date, the time or the place of purported meeting in which he acquired the knowledge of the sale transaction and purportedly declared his intention to pre-empt the same. Examination of para.3 of the plaint also shows that the plaintiff pre-emptor also failed to specify the names of the informer(s) of or the witnesses to the information of the sale transaction and performance of Talb-e-Muwathibat by him. The claim and the pleadings of the plaintiff pre- emptor are blank, vague and unsubstantiated. They lack in setting up the basic and fundamental facts to establish and prove the timely performance of Talbs as required under section 13 of the- Punjab Pre-emption Act, 1991. It is well settled that the facts which a plaintiff failed to plead in the plaint could not be allowed to be proved in evidence. The unpleaded facts could not be made the basis of the A judgments and evidence if led upon them, was to be excluded from consideration.
7. The controversy, if any, on the above referred litigated question and the issue-was. Finally settled by the Hon'ble Supreme Court of Pakistan in the case of "Fazal Din through L.Rs. v. Muhammad Anayat through L.Rs." (2007 SCM R 1) wherein on the basis of "Haji Muhammad g Saleem v. Khuda Bukhsh" (PLD 2003 SC 315) and "Fazal Subhan v.- Sahib Jamala" (PLD 2005 SC 977) and'"Akber Ali.
Khan v. Mukamil Shah and others" (2005 SCM R 431) and in distinction to the case of "Haji Noor Muhammad v. Abdul Ghani and 2 others" (2000 SCM R 329) and "Hayat Muhammad and others v.
Mazhar Hussain" (2006 SCM R 1410) it was held that the date, the time and the place of making Talb-e-Muwathibat was mandatorily required to be specifically stated in the plaint in order to prove the same through evidence. In the absence of such particular pleadings, a plaintiff pre- emptor must be non-suited.
8. In view of the above position of the law, it is held that the learned first Appellate Court committed material irregularity and jurisdictional error in passing the impugned judgment and decree dated 9-3-2002. The same is therefore, set aside. As a result thereof. Civil Revision No.779 of 2002 filed by the petitioner/vendee (defendant No. l in the suit) is accepted and Civil Revision No. 1912 of 2002 filed by the plaintiff Muhammad Latif seeking modification in the impugned judgment and decree dated 9-3-2002 is dismissed with no order as to costs.