' MIAN HAMID FAROOQ, J.--- The petitioner/defendant, through the present petition, seeks leave to appeal against the judgment dated 6-12-2004, whereby, the learned Single Judge of the Lahore High Court at Lahore dismissed his revision petition (Civil Revision No,756 of 2002).
2. Respondent/plaintiff filed the suit for possession through preemption in respect of agricultural land measuring 22 Kanals, 7 Marlas sold through Mutation No,2915 dated 8-3-1995 favouring the petitioner defendant The respondent claimed his superior right of pre-emption on various grounds.
The suit was contested by the petitioner through written statement thereby controverting the contents of the plaint. The trial Court framed the necessary issues, recorded evidence of the parties and finally, on the basis of findings on issue No,2 (whether the plaintiff performed all the requirements of Talbs: OPP), dismissed the suit, vide judgment and decree dated 23-6-1997.
Respondent's appeal, against the said decree, was, however, allowed and the learned Additional District Judge reversed the said findings and decreed respondent's suit, vide judgment and decree dated 12-3-2002. Petitioner's revision against the said appellate decree was dismissed by the learned Single Judge in Chambers holding that mentioning of date, time and place of performance of Talb in the plaint is not necessary, vide judgment dated 6-12-2004, hence the present petition.
3. Learned counsel for the petitioner, while referring to the contents of the plaint, submitted that it was mandatory for respondent/ pre-emptor to specifically mention in the plaint the date, time and place of performance of Talb-i-Muwathibat and since those requirements were not adhered to, therefore, his suit was liable to be dismissed and the findings of the learned High Court affirming the decision of the Appellate Court are contrary to the law on the subject. He has referred Rana Abdul Rasheed v. Iqbal Hussain 2008 CLC 1. Conversely, the learned counsel for the respondent stated that there could not be any cavil to the latest law on the subject, however, he while admitting that date, time and place of performance of Talb-i-Muwathibat was not mentioned in the plaint vehemently asserted that the respondent produced sufficient evidence to prove Talb-i- Muwathibat, as required under the law, thereby giving details of date, time and place of making Talb-iMuwathibat.
4. We have heard the learned counsel for the parties and examined the available record. Upon the perusal of the contents of the plaint, particularly para.4 of the plaint, we find that although it has been stated that as soon as the plaintiff came to know about the disputed sale he in the same meeting announced to exercise his right of pre-emption yet no particulars of date, time and place of making Talb-i-Muwathibat were incorporated in the plaint. The only question involved herein is as to whether it was mandatory for the plaintiff to give details of date, time and place of making Talb-i-Muwathibat in the plaint. The latest view of this Court, as reflected in the judgment reported as Mian Pir Muhammad and another v. Faqir Muhammad through L. Rs, and others PLD 2007 SC 302, is that in view of the provisions of section 13(2) and (3) of the Punjab Pre-emption Act, 1991, it would be mandatory for a plaintiff to mention in the plaint the date, place and time of performance of Talb-iMuwathibat. It appears appropriate to reproduce relevant portion from the case of Mian Pir Muhammad, (ibid) which read as under:-- "... Therefore, the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statue i.e,14 days under subsections (3) of section 13 of the Act shall be calculated... It is now a well settled law that performance of both these Talbs successfully is sine qua non for getting a decree in pre-emption suit."
5. It may be noted that the judgment relied upon by the learned High Court reported as Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCM R 314, was dissented in the case of Mian Pir Muhammad (ibid). In view of the latest law on the subject, it was necessary for the plaintiff to give particulars of date, time and place in the plaint of making Talb-i- Muwathibat, which details are comprehensively lacking in his plaint, therefore, the trial Court was justified to dismiss respondent's suit on the basis of findings on Issue No,2.
6. As regards the contention raised by the learned counsel for the respondent, suffice it to say, that a litigant cannot be allowed to improve his case in the evidence which was not set-up in the pleadings. It is settled law that a litigant had to first plead facts and pleas in pleadings and then to prove the same through production of evidence. Admittedly, the respondent failed to give the details in the plaint about the date, time and place of performance of Talb-i-Muwathibat and thus he could not be allowed to prove his case through production of witnesses, which was not pleaded in the pliant. As a matter of fact, the learned trial Court after examining the pleadings of the parties should not have allowed the respondent to lead the evidence on the facts not alleged by him in the plaint and even if the evidence was allowed to be recorded, it should not have been considered as evidence in the case by the Appellate Court and the learned High Court. The stance of the learned counsel is devoid of any consideration.
7. In the above perspective, we have examined the impugned judgment passed by the learned High Court and found that it is not sustainable in law and, thus, we have no hesitation in granting leave to appeal to the petitioner and ultimately setting aside the said judgment.
8. In view of the above, the instant petition is converted into appeal, which is allowed and the impugned judgment of the High Court dated 6-12-2004 affirming the appellate decree dated 12-3- 2002 is set aside and the judgment and decree dated 23-6-1997 passed by the learned High Court stand resorted. There is no order as to costs.