Ghulam Rabbani, J.--This appeal with leave of the Court is directed against judgment. dated 27.6.2002 passed by a single Judge of the Lahore High Court, Rawalpindi "Bench, Rawalpindi.
2. Ali Khan and Akbar Khan, both brothers, sold to respondent Haji Ghazan Khan a piece of land measuring 21 kanals 18 marlas situated in village Misrial Tehsil Talagang vide Mutation No, 271 dated 31.12.1992 for a consideration of Rs, 1,30,000/-. Abdur Rehman, appellant herein, filed a suit for possession, of above land through preemption on the ground that he was Sharik- i-khata.
Learned Trial Judge decreed the suit in his favour vide judgment and decree dated 14.4.1994. On appeal filed by the respondent/vendee, learned Additional District Judge. Talagang, reappraised the evidence and found that appellant/plaintiff failed to make Talab-i-Mowasibat and Talab-i- Ishhad as required by law. Therefore, he set aside judgment of Trial Court and dismissed the suit through judgment dated 5.6.1995. Feeling aggrieved, appellant filed before Lahore High Court, a Revision Application which, was dismissed by the impugned judgment, noted above.
3. Precisely stated, the leave was granted by this Court to consider whether it was a legal necessity that all the witnesses of Talab-i-Mowasibat should have been examined by the appellant and whether the Courts below had erred in holding that Talab-i-Mowasibat was not made by the appellant/pre-emptor in accordance with law.
4. In the instant case, the appellant/plaintiff examined himself alone on the point of Talab-i- Mowasibat and in his solitary evidence disclosed for the first time the name of the informer but failed to give the date and time of receipt of information from him about the sale of disputed land and failed to give the date of making immediate demand; rather in his cross-examination stated that he did not remember the same. Mr. Muhammad Munir Peracha, ASC, learned counsel for appellant contended that, although the appellant had, for the first time, disclosed in his evidence the name of the informer; failure to examine the latter as a witness would not, in any way, weaken his case and his solitary evidence was sufficient to prove Talab-i-Mowasibat made by him.
According to Mr. Peracha learned Additional District Judge in exercise of his powers as Appellate Authority could not, therefore, touchupon the sufficiency or otherwise of such evidence and his finding recorded on this point was sheer improper exercise of jurisdiction, Mr.Gulzarin Kiani, learned counsel for respondent, on the other hand, disputed the above submissions. He argued that withholding of evidence of an informer would lead to adverse presumption that the witness, if examined, would have not supported the appellant. In support of his contents he placed reliance on the case of Muhammad Mall Khan versus Allah Yar Khan (2002 SCM R 235). Mr. Kiani submitted that the consistent findings of two Courts on the point were based on proper evaluation of evidence on record and that the suit of appellant was rightly dismissed. In this he placed reliance on case of Fazal Subhan and 11 others versus Mst. Sahib Jamala and others (PLD 2005 S.C. 977)
5. In the first place, we attend to the arguments of Mr. Peracha whether Additional District Judge could or could not exercise its appellate jurisdiction to alter the finding of fact recorded by Trial Court. In this behalf, it may be stated that it is well settled that Appellate Court is the final Court of fact. The appeal is continuity of original proceeding before the superior Tribunal. In case of Muzaffar Ali versus Muhammad Shafi (PLD 1981 SC 94), our respectable brother Justice Karam Elahi Chuhan, Judge, as then he was, speaking for a larger Bench observed that the appeal was regarded as a continuation of trial. In actual fact, on appeal, it is always rehearing of the whole dispute. The Appellate, Court being a final Court of fact could reappraise the evidence and alter the finding recorded by Trial Court and in doing so, in this case, the Appellate Court rightly exercised its jurisdiction. The objection of Mr. Peracha that learned Additional District Judge could not have touched upon the sufficiency of solitary evidence on the point of Talab-i-Mowasibat, is, patently, without any force and is not acceptable.
6. Coming to the other contention of Mr. Peracha about ' sufficiency of solitary evidence of appellant/plaintiff on the point of Talab-i-Mowasibat; at the out set it may be stated that the right' of preemption is a feeble right which is activated; rather it is dependent for its enforceability only on making mandatory demand of Mowasibat to take it logically to enable the pre-emptor to resort to the Talb-i-Ishhad. Seen from another angle, such as, for computing the period of limitation for making Talab-i-Ishhad and for institution of suit, in this case from date of knowledge, Talab-i- Mowasibat becomes altogether more important Talab-i-Mowasibat has, thus, a very important role in the scheme of preemption and cannot be taken lightly. Therefore, a pre-emptor has to satisfy reasonably the judicial mind of Court through sufficient evidence, that he, in the first instance, made immediate demand (Talab-i-Mowasibat) to be legally entitled to invoke his right of pre-emption by way of a suit instituted within stipulated time.
7.The sufficiency of evidence, which, need to be in accord with pleading," that Talab-i-Mowasibat was made as prescribed, is to be evaluated in the light of what the law enjoins in this behalf.
8.Section 13 of the Punjab Pre-emption Act. 1991, hereinafter to be referred to as the Act" defines Talab-i-Mowasibat by way explanation to mean immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Therefore, in order to satisfy the judicial mind of the Court that the immediate demand was made as prescribed, a pre-emptor, first, needs to state in his pleading, among others, necessary/material particulars, such as, the date on which he received information, the name of informer and the names of those persons who constituted the sitting (Majlis) in which the pre-emptor claimed to have received information; and then to lead the evidence in line with his pleading. This point has been elaborated with reference to relevant provision of Code of Civil Procedure by one of us (Sardar Muhammad Raza Khan, J.) in case of Fazal Subhan and 11 others versus Mst. Sahib Jamala and others (PLD 2005 S.C. 977) by observing that, "apart from limitation involved in the matter of Talab-e-Muwathiba, I may refer even with preference to Order VI, Rule 2 of the C.P.C. that the detailed particulars of Talab-e-Muwathibat are necessary to be mentioned in the plaint even under Order VI, Rule 2 and Rule 4 of C.P.C. Also that, "as the phenomenon of Talab-e-Muwathibat carries essentially the elements of limitations, mentioning of date and time of the disclosure of information is absolutely necessary. It is again necessary because Talb has to be made before the dispersal of Majlis" and that, "as the existence of Majlis is a most material fact related to the performance of Talab-e-Muwathibat, the constituents of Majlis are also necessarily to be mentioned. Such constituents of Majlis are nothing but the members thereof who ultimately are the witnesses to the Talab-e--Muwathibat".
8A. Burden of proof was on the appellant to prove through satisfactory evidence that first demand was made as prescribed. In his solitary evidence, he failed to mention the date, time and place of receipt of information about the sale. For the first time, in his evidence, he disclosed the name of informer, but preferred not to examine him as a witness and that also without assigning any reason. A pre-emptor claiming right of pre-emption, as a matter of prudence, ought to seek corroboration to satisfy, reasonably the judicial mind of the Court that Talab-i-Mowasibat was made by him enabling him to make the other demand (Talab-i-Ishhad). In this case, failure to put the informer in witness-box, seen from that angle as well, raises a logical presumption that appellant feared that the witness, if examined, could not stand the test of cross-examination or that the witness would not support him or that his evidence would be against him. In this, we are fortified by case of Muhammad Mall Khan (supra), in which, it is observed that: "... Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan (informer) from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him ...."
9.We are, therefore, clearly of the view that the concurrent findings of learned single Judge of Lahore High Court and that of Appellate Court suffer from no legal defect or infirmity. The same do not warrant interference.
10.For the foregoing, we find no merit in this appeal and dismiss the same. No order as to costs.