' MUHAMMAD MUZAMMAL KHAN, J.-This civil revision assails judgments and decrees, dated 15-7- 1997 and 27-2-1998 passed by the learned Civil Judge and learned Additional Sessions Judge, Sialkot, respectively, whereby suit for possession through pre-emption, filed by the respondent was decreed and appeal of the petitioner, there against, failed.
2. A short factual background of the case is that the petitioner purchased 12 Marlas of land situated in village Chanun moon, District Sialkot*, through Mutation No,396 sanctioned on 27-10-1994. The respondent filed suit for possession through pre-emption and claimed that this sale came to his knowledge on 2-11-1994 at the morning time through Muhammad Ashraf, in presence of one Muhammad Younas, when he immediately exclaimed his intention to pre-empt it, as he being a cosharer, has a superior right as compared to the petitioner and in this manner he performed Talb-i-Muwathibat. On 10-11-1994 respondent gave a notice of Talb-i-Ishhad attested by two truthful witnesses, demanding land in question and thereafter fulfill the requirement of Talb-i- Khusumat in terms of section 13 of the Punjab Pre-emption Act, 1991.
3. The petitioner, who was defendant in the suit, contested it by filing its written statement wherein he that asserted that the land in question was sold to him about 20 years ago and actual physical possession was also taken over by him, at that time and in this manner he claimed that suit of the respondent is barred by limitation. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. The learned Civil Judge, who was seized of the matter, after appraisal of the evidence on the file on 15-7-1997 decreed the suit of the respondent as prayed by him.
4. The petitioner aggrieved of the decision of the trial Court, dated 15-7-1997 filed an appeal before the learned Additional District Judge, Sialkot, but remained unsuccessful as his appeal was dismissed on 27-2-1998. The petitioner has now come up in revisional jurisdiction of this Court, for setting aside concurrent judgments of the two Courts below.
5. Learned counsel for the petitioner submits that plaintiff himself did not appear in the witness-box and thus, in the circumstances of the case, Talb-i- Muwathibat was not proved. He further submits that appearance of P.W.4 Mujahid Hussain, as attorney of the respondent, does not prove the performance of Talb-i-Muwathibat as it was not made in his presence. It is also contended that attorney of the respondent did not depose regarding superior rights of the petitioner and in this manner he asserts that superior rights of the respondent was also not proved. Learned counsel for the petitioner complains that three sale mutations were attested by one vendor in favour of three different vendees where against three different persons filed pre-emption suit, which were not consolidated by the trial Court but evidence recorded in one case was unauthorizedly copied in the other two suits, which could not have been done under law. He further elaborates his.
Contentions by saying that sale in favour of the petitioner was completed in 1978 and possession under the sale was taken over at that time but mutation was sanctioned, on 27-10-1994 thus, period of limitation for filing preemption suit would start from 1978 and not from the date of attestation of mutation. He claims that suit of the respondent was patently barred by limitation and thus, could not have been decreed. It has also been urged on behalf of the petitioner that notice of Talb-i-Ishhad was not sent to the petitioner because it carries a refusal report on his behalf which, according to P.W.l was inscribed by the postman, after inquiry from some child.
6. Learned counsel for the respondent, conversely, not only refuted the submissions of the petitioner but also supported the judgments of two Courts below and urged that Mujahid Hussain, P.W.4, has categorically stated that Talb-i- Muwathibat was performed by the respondent In his presence and this part of his statement was not cross-examined which shows that the petitioner had admitted performance of this Talb. He further .Submits that the petitioner is undoubtedly a co- sharer of the land in question and his statement as P.W.4 along with other evidence on the file, if read in a juxtaposition. Superior rights of the plaintiff is proved beyond any shadow of doubt.
Replying to the arguments of the learned counsel for the petitioner regarding recording of evidence in One suit and copying in other two suits, he submitted that neither the petitioner nor his counsel objected to the course adopted by the trial Court and since similar evidence was needed in all the three suits, no prejudice is caused to the petitioner by recording of evidence in one suit and copying the same in others. He also heavily relied on statement of D.W.l and asserted that notice of Talb-i-Ishhad was sent to the petitioner but was refused to be accepted by him which clearly shows that, as for as, the respondent is concerned, he discharged the onus of proof placed on his shoulder.
7. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Undeniably, respondent is employed in Kuwait and in view of his inability to come all along to Pakistan to make statement in the suit, appointed his brother-in-law Mujahid Hussain, as his attorney, to make statement on his behalf. Mujahid Hussain, while appearing as P.W.4, categorically deposed that respondent had explained his intention to pre-empt the sale in question, immediately on gaining of knowledge, in his presence. This part of the statement of Mujahid Hussain, remained uncross- examined which creates a natural presumption that this part of his statement stand submitted by the petitioner. Section 14 of the Punjab Pre-emption Act, 1991, authorizes a duly agent, even to make Talbs on behalf of his principal and thus, it cannot be said that by non-appearance of the respondent himself in the witness-box, performance of Talb-i- Muwathibat is not proved. Attorney of the respondent had informed the Court of an act which had already taken place, thus, it is proved that respondent had substantially proved performance of immediate Talb-i- Muwathibat, as required by Jaw. Mujahid Hussain, P. W. 4, also deposed that on 10-11-1994 a written notice was given through an Advocate at Sialkot. Besides statement of P.W.4 five other P.Ws. Were produced to prove performance of Talbs as required by section 13 of the Punjab Preemption Act, 1991, Talb-i-Ishhad though is proved to have been performed in presence of five P.W.5 and P.W.6 yet dispatch of notice through registered cover No, 1039, dated 10-11-1994 was proved to have been sent to the petitioner by P.W.l and P.W.2. Under the provisions of section 13, a preemption is only required to prove performance of Talb-i-Ishhad and if at all, for the sake of arguments, notice not served, as claimed by the petitioner, does not vanish right of the respondent.
Under Muslim Law, performance of Talb-i- Ishhad, in presence of two truthful witnesses is a condition precedent for maintaining a suit for pre-emption but proof of dispatch of notice is not necessary. In the instant case, dispatch of notice attested by two truthful witnesses P.Ws.5 and 6 is proved but if at all, it was not delivered to the petitioner, it was neither a requirement of section 13 of the Punjab Pre-emption Act, 1991 nor that of Muslim Law, as held by the Honourable Supreme Court of Pakistan in a number of cases like Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1, Haji Qadar. Gul v. Moember Khan and another 1998 SCMR 2120 and Abdul Malik v. Muhammad Latif 1999 SCM R 717. Respectfully following the view taken by the Honourable Supreme Court of Pakistan I conclude that the respondent has sufficiently complied the pre-requisites for filing his pre-emption suit, by proving performance of Talb-i- Muwathibat as well as Talb-i-Ishhad had both the Courts below and taken a correct view which is in consonance with evidence on the file.
8. I have/ minutely examined the statement of Mujahid Hussain, P/W.4, attorney of the respondent, who did make a statement that respondent had a superior right, being a Shafi Khalit (co-sharer) besides which he stated that they have superior right on the ground of common passage and means of irrigation thereby claiming superior rights on the ground of Shafi Khalit. In view of this categorical statement, arguments of the learned counsel for the petitioner that attorney of the respondent did not deposed regarding superior pre-emptive rights of the respondent, looses substance, as it is also proved from the Revenue Record produced on the file, copy of Jamabandi for the year 1992-93 Exh.P.7 which shows that the petitioner had no such qualification to come in competition with the respondent. I also find that evidence of the parties was recorded in suit titled as "Khushi Muhammad v. Muhammad Yousaf" and was reproduced in the other two cases. The petitioner did not object to the course adopted by the trial Court which exercise appears to have been undertaken with the concurrence of the parties and their counsel. The petitioner could not point out any prejudice caused to his right by the complained activity and this defect, if any, being of procedural nature, does not affect the findings of the Courts or trial of the suit. The petitioner having acquiesced to the procedure adopted is now estopped to turn back and say that evidence in all three suits should have been recorded separately. I find that the objection of the petitioner is only of technical nature and does not defeat the ends of justice.
' Adverting 'to the assertion of the petitioner that sale in his favour was completed in 1978 and possession was taken by him under it, at that time, thus, suit of the respondent is barred by limitation. Section 13 of the Punjab Pre- emption Act, 1991, is clear on the point which by its sub- clause (c) gives period of four months for maintaining a suit for preemption from the date on which vendee takes physical possession of the property if the sale is made otherwise, than a registered sale-deed or a mutation. Sale in question was effected through sanctioning of mutation on 27-1-1994 thus, according to sub-clause (b), the period of limitation will be four months from the date of attestation of mutation and the suit having been filed on 21-12-1994 cannot be said to be barred by limitation.
10. For what has been discussed above, both the Courts below have taken a correct view of law and facts emerging out of evidence on the file. No misreading or nonreading of evidence is proved, in absence of which no interference in revisional jurisdiction is permissible under law. Both the Courts have committed no illegality or irregularity in exercise of their jurisdiction, within the framework provided by law, this revision petition has no merit in it, is accordingly dismissed, leaving the parties to bear their own costs.