' JAWWAD S. KHAWAJA, J.--- The petitioners are the L.Rs, of Muhammad Saleem, who was the original defendant before the learned trial Court. The petitioners impugn the concurrent decrees dated 15-6-1993 passed by the learned trial Court and 1-4-1998 passed by the learned Appellate Court, whereby a suit filed by Muhammad Rafique (respondent/plaintiff) seeking possession through pre-emption has been decreed.
2. Learned counsel for the petitioners has confined his arguments to Issue No,8-A relating to Talbs, which was framed in the following terms:-- "Whether the plaintiff has made Talbs under the law? OPP"
3. I have gone through the evidence of the parties, with the assistance of both learned counsel. In paragraph 3 of the plaint, the respondent/plaintiff had averred that he had come to know of the disputed sale through reliable sources. There was no mention, at all, of the source of his information. When the respondent/plaintiff appeared as his own witness (P.W.3), he deposed, firstly, that he had been informed of the sale by his friend Rana Abdul Aleem. Thereafter, he changed his stance and stated that information of the sale was given to him by Mistri Muhammad Hussain, who is his employee and works at his workshop in Akhtarabad. This contradiction in the testimony of the respondent/IA plaintiff himself is most relevant but has not been duly taken note of by the learned Courts below.
4. Additionally, it is to be noted that during his evidence the respondent/plaintiff deposed that Rana Abdul Aleem was present for the purpose of giving evidence in this case. However, Rana Abdul Aleem was not produced in the witness-box. Strangely, even Mistri Muhammad Hussain was not examined during affirmative evidence. He was produced as P.W.7 during rebuttal.
5. Learned counsel for the petitioners has, firstly, argued that the onus of proving Issue No,8-A was on the respondent/plaintiff, and, as such, Mistri Muhammad Hussain could only have been produced by the respondent/plaintiff when affirmative evidence was led by him. Even otherwise, in his examination-in-chief, Mistri Muhammad Hussain (P.W.7) did not state that he had given information of the disputed sale to the respondent/plaintiff. He did, however, acknowledge that he was a servant employed in the workshop of the respondent/plaintiff for the previous ten years.
6. In the foregoing circumstances, I find that the testimony of the respondent/plaintiff as P.W.3 in relation to Talb-i-Muwathibat is not, at all, credible. There is no other evidence to prove the requirement of Talb-i-Muwathibat as set out in section 13 of the Punjab Pre-emption Act.
7. Both Courts below have not dealt with the above aspects of the case and have, thus, committed illegality and material irregularity in the exercise of their jurisdiction. As a consequence, the impugned judgments and decrees are not legally sustainable. The same are set aside. As a result, the suit filed by the respondent/plaintiff is dismissed.