MIAN SAQIB NISAR, J.- The suit property measuring about 158 Kanals 10 Marlas situated in Diya Singh Wala, Tehsil Chunian, District Kasur, was owned by Baz Khan, the father of the present respondent; Baz Khan appointed Niaz Khan as his attorney vide registered power of attorney dated 01.06.1977 and the attorney on the basis of the above sold the suit land in favour of defendants No. 1 and 2; said defendants further of defendants No. 1 and 2; said defendants further sold the land in favour of defendants No. 3 and 4 vide document No. 2406, dated 20.07.1980, through registered sale-deed bearing No. 1158, dated 25.06.197T and Baz Khan, admittedly died on 04.05.1989, and his son, the respondent, on 22.12.1990 brought a suit for declaration, claiming that such transactions of sale in favour of the petitioners and result of fraud etc. His father was a naive person and he has been a victim of fraud. It may be pertinent to mention here, that Niaz was neither dated 22.11.1996, in which, the same address upon which the notice Talb-i-Ishhad, was sent to respondent No. 1, has been written, he further submits that in this RSA, the substitution of the legal heirs of Ghulam Hazoor, vendee alongwith the affidavit of respondent No. 1, has been filed which mentions the same address. In addition to the above, the learned counsel submits that from the evidence on the record, such as copy of the Jabmabandi, the voter list and Khasr Girdwari Ex. P-15 to Ex. P-19, also proves that respondent No. 1, was the resident of the address given in the notice of Talb-i-Ishhad.
Therefore, the findings of the Courts below that respondent No. 1, was not served with the notice of Talb-Mshhad at the correct address, are illegal and against the record, and cannot sustain.
4. About the Talb-i-Muwathibat, it is submitted that as far as the statement of Abdul Hameed, (PW- 4), is concerned, respondents themselves have been given him the Suggestion According to the counsel, this suggestion, which is binding upon the. Respondents proves, as deposed by Abdul Hameed (PW-4), in his statement before the Court, that Ghulam Hazoor met him on 14.10.1991 and disclosed about the sale, which he further divulged to the plaintiffs and they made the Talb-i- Muwathibat, this aspect of the matter, has not been kept in view by the two Courts, which has resulted in sheer misreading of the evidence on the record. As far as the findings of the learned Court of appeal, the learned counsel states that the Court has not considered and discussed the evidence, but has non-suited the appellants No. 1, 3 and 4, on the ground that they have failed to appear in the witness- box to prove. Talb-i-Muwathibat, which according to the Court, is a personal act of the plaintiffs/pre-emptors, and additionally, all the plaintiffs including Babar Naseer have not sent the notice of Talb-i-Ishhad to respondent No. 1, at This correct address. Mr. Shahzad Shaukat, states that as the decision of the Court of appeal, is legally untenable and the said Court has not considered any other evidence, therefore, the sanctity of concurrent finding of fact, cannot be attached to the impugned decisions, resultantly, the second appeal is competent and the decisions of the Courts below should be declared to be contrary to law. {{URDU MISS}}
4. I have heard the learned counsel for the parties. As regards the question, whether the notice of Talb- i-Ishhad was issued to respondent No. 1, at his correct, address, suffice it to say that from the documents and the material to which, the reference has been made by the counsel for the appellants, which could not be controverted by the respondents' counsel, it is established that the notice was given, on the correct address, and therefore, the reasoning of the Courts below to non- suit the plaintiffs on this ground, is invalid and cannot sustain. It may be pertinent to mention that the plaintiff/pre-emptor under Section 13 of the Punjab Pre-emption Act, 1991, is only obliged. To send a notice in the prescribed manner to the vendee, at his correct address and it is a matter of common knowledge that the acknowledgment due seldom reaches the sender, therefore, if the notice is sent on the correct address of the vendee by following the requirements of law, it shall be presumed to have been delivered to him, the plaintiff js under no obligation to examine the postman to prove that the notice of Talb-i-Ishhad has also been served upon the vendee. In any case, the plaintiff cannot be non-suited on this account. Therefore, the findings of the two Courts in this regards, are untenable and are hereby set aside.
5. For. The question , as to what is the effect of the non-appearance of the other plaintiffs/pre- emptors, as their own witnesses, except Babar Naseer Cheema (PW-10), in Support of Talb-i- Muwathibat, it may be held that there is no specific provision either in the CPC or the Qanun-e- Shahadat Order, 1984, requiring such personal appearance, except where the Court needs it under Order 10, CPC. But at the same time, it is the settled law that where a "fact" is required to be proved through oral evidence, such evidence must be direct and of the primary source. Article 71 'of the Qunan-e-Shahdat Order, 1984, provides the instances of the direct oral evidence regarding the proof of a "fact", and I may not be misconstrued that the statements of PW-4 and PW- 10, does not fall within the purview of the said Article. However, the foundation of such direct evidence in my considered view, in the case about the proof of the "fact" of Talb-i-Muwathiabat, is the "person", who has made the Talb, it is he, who should appear and enabling himself for the cross- examination of the other side. If the Talb has been made by the pre-emptor himself, he should come forward to be a witness and if it is by his authorized, agent, the agent should appear and prove the fact, provided that the pre- emptor/agent cannot personally appear for the reason beyond his control, which must be established on the record. In forming my view, l am fortified by the cardinal rule of the law of evidence that the best available evidence should be brought before the Court. And by Section 236 of the principles of the Mohammadan Law by D. F. Mulla 2006, which enunciates that a person shall not be entitled to the right of pre-emption unless he has made Talb-i-Muwathibat and Talb-i-Ishhad. According to the Explanation II of the section, it is not necessary that such Talbs should be made by the pre-emptor in person. It is also sufficient, if it is made by the manager or a person previously authorized by the pre-emptor to make the demand.
A demand made by a father or a brother of the pre-emptor is not sufficient, even if he has a right to pre-empt; unless he had been previously authorized to make the demand. Explanation IV of the above section provides that if there are two or more persons, who claims the right of pre-emption, each one of them, should make the demand unless one of then; has also been authorized by the others to do so, and he makes the demand on their behalf also. From the above referred principles of Mohammedan Law, it can safely be deduced that the making of the Talbs is a special and a personal act of the pre-emptor, which though can be delegated, but the right of preemption is dependent upon the valid making of Talbs. The first Talbs has to be made in a specific and particular manner as provided above and also to be proved in the same way e.g. If the demand has not been made by the pre- emptor himself, rather by his previously authorized agent, if is such agent, who shall appear in person in proof of the Talb-i-Muwathib at. It should not be that the pre- emptor appears and not the agent because the statement of the pre- emptor in such a case, shall be hit by the rule of direct or the hearsay evidence. This shall also be true for the position, vice versa. However, the requirement of the above personal appearance shall only be dispensed with be, is prevented to appear for any cause beyond his control, which has to be established on the record.
6. Applying the above rule of this case, PW-10 Babar Naseer Cheema, who though is a co-plaintiff in the matter, but jt is not established that he has filed the suit on behalf of the other plaintiffs, as an attorney or has made the Talbs on behalf of his brothers as a previously authorized agent. While appearing as PW-10, it is not even stated by him.
In the light of the above, I am constrained to hold that due to their non-appearance, the three plaintiffs have failed to discharge the onus, if they have made Talb-i-Muwathibat, the statements of PW-4 and PW-10, can only be used as a corroborative piece of evidence, but where the foundational evidence has not been led by them, the Corroborative evidence has no such value.
7. Viewing the proposition from another legal angle, regarding the application of Article 129(g), which enables the Court to draw a presumption in the eventuality of withholding the best evidence, the non-appearance of a party as his own witness, ordinarily would discredit his case, but if there is other evidence, which absolutely proves his case, the non-appearance shall not be fatal and no adverse inference should be drawn against him. However, where the "fact" is in the personal knowledge of a party himself and he is the primary source to prove the "fact", if such party without any sufficient cause abstains from the appearance in the Court, the requisite inference shall be drawn. However, it depends upon the. Facts and circumstances of each and is not an inflexible rule.
Considering the present case on the touchstone of Article 129(g) of the Order ibid, it may be mentioned that according to the case of the plaintiffs, set out in the plaint, all of them were present, when they learnt about the sale and made Talb-i-Muwathibat, as per the statement of PW-10, Babar Naseer Cheema and PW-4, the informer, when the sale was disclosed, all the plaintiffs simultaneously asserted the Tabl-i-Muwathibat and the time was 9.30 and it was 14.10.1991, it may be relevant to mention that it was Monday and thus was a working day, may be Babar Naseer, who is a non-practicing lawyer, was present at the house, but it not proved that Mahzar Naseer, who is an Income Tax Inspector, was also there, sitting in the Veranda as alleged, in all probability he should have been in the office, rather at home, besides, according to PVV- 1, Humayon Naseer is not the resident of the Satellite Town, where the alleged first Talb was made, rather he resides at Civil Lines Jang; he too has not appeared in person of residence at 9:30 a.m., where the Talb-i- Muwathibat is stated to have been made, it should also been established, as to what was the avocation of Mr. Riffat Naseer, the 4th plaintiff and how come he also was present at given time and venue, all these facts were within the personal knowledge of the plaintiffs, therefore, they should have appeared personally to prove these, so that the respondents could have the opportunity to cross-examine them and to extract the inconsistency in these statements, thus on account of the failure on the part of the three plaintiffs, the due inference of withholding the best evidence, should be drawn against them.
This petition is liable to be dismissed on another legal point. According to the judgments cited by the counsel for the respondent reported as Akbar Ali Khan v. Mukamil Shan and others (PLJ 2005 SC 844), the law now stands settled that the pre-emptor has to mention the date, time and the venue of making the Talbs in the plaint. Reliance can also be placed in this behalf on the following judgments as well.
Abdul Hakeem v. Mst. Jannat Bibi (PLJ 2005 SC 1136), Hakim Ali, etc. v. Ghiilam Rasul and another (2004 YLR 1402)'Muhammad Mansha v. Shamim Akhtar and 2 others]g004 YLR 1430), Akhtar Nawaz v. Muhammad Nazir, ect.(PLJ 2005 Lahore 719).Gpd Muhammad Yousuf v. Muhammad Rafique and others (PLD 2006 Lahore 39).
But in the plaint, the paragraph No. 6, the appellants- plaintiffs have only given the date and the name of informant but have not specified the time, the venue, where such disclosure was made and the name of the persons comprising of ^alleged Majlish, in which the first Talb was made.
These facts have also not been mentioned in the notice of Talb-i-Ishhad.
The learned counsel for the appellants by relying, upon the judgment reported as Hayat Muhammad, etc. v. Mazhar Hussain (2002 SCMR 1410), states that the pre- emptor is not required to state the details in the manner that the time and place of making Talb-i-Muwathibat should also be given. I am afraid, though this judgment is latter in time, but has been passed by the two Hon'ble Judges of the Supreme Court, in which the former judgment has not been considered, while the judgment referred to as Akbar Ali-Khan and others v. Mukamil Shah and others (PLJ 2005 SC 844), is by a larger Bench, thus in such circumstances, I am bound by the said judgment.
In the light of above, the suit of the plaintiffs except Babar Nas. Eer Cheema, is liable to be dismissed for having failed to prove the Talb-i-Muwathibat on account of their non- appearance as the witnesses, and whereas qua all the plaintiffs, for the reasons that time and venue of the Talb-i- Muwathibat as was required to mention in the plaint, has not been specified. Therefore, this appeal has not merits and may be for some additional reason given by this Court, the same is hereby dismissed.