' MAULVI ANWARUL HAQ, J.---Vide Mutation No,2182 attested on 9-1-2004 the respondent purchased suit-land for a consideration of Rs,4,00,000. On 31-1-2004 the petitioner filed a suit for possession of the said land by pre-emption. According to him the land had in fact been sold for Rs,1,60,000. He claimed to be co-sharer in the land as well as in the means of irrigation. Performance of talbs was pleaded. The respondent filed a written statement insisting that he has paid Rs,4,00,000 for the land. He denied the other allegations in the plaint. Following issues were framed by the learned trial court:-
(1) Whether the plaintiff has superior rights of pre-emption over the defendant? OPP
(2) Whether the plaintiff has fulfilled the requirement of Talbs, in accordance with pre-emption law? OPP
(3) Whether the plaintiff is entitled to the decree as prayed for in the Plaint., OPP
(4) What is actual sale price? O.P. Parties.
(5) Whether the plaintiff has no cause of action to file the present suit? OPD
(6) Whether the suit of the plaintiff is not maintainable due to shortage of court fee? OPD
(7) Whether the suit of the plaintiff is false and frivolous, hence, liable to be dismissed with cost?
OPD
(8) Relief ' Evidence of the parties was recorded. It was found that the petitioner has superior right being co- sharer in the land. The sale price was found to be Rs,4.00,000. Under issue No,2 pertaining to talb only evidence with reference to Talb-e-Muwathibat was discussed and issue was answered against the petitioner. Issues No,6 and 7 were answered against the respondent. The suit was consequently dismissed with reference to the findings on the question of talb. The appeal filed by the petitioner was heard by a learned Additional District Judge, Pattoki, who found that a valid Talb-e-Muwathibat has been made but the notice of Talb-e-Ishhad has not been proved inasmuch as the time stated by the . Witnesses when they reached court to send notice was discrepant and further that production of copy of the notice is violative of Articles 76 and 77 of Qanun-e-Shahadat Order, 1984, He accordingly concluded that Talb-e-Ishhad has not been proved. The finding of the learned trial court as to the price was also confirmed. The appeal was dismissed on 28-3-2006.
2. Learned counsel for the petitioner contends that the learned Additional District Judge while correctly holding that Talb-e-Muwathibat was made has acted without jurisdiction while discarding the evidence of the service of notice upon a wrong assumption vis-a-vis requirement of Qanun-e-Shahadat Order, 1984 in relation to proof of the said document. Learned counsel for the respondent has urged that in the written statement receipt of notice was denied and as such in the absence of acknowledgment due receipt it cannot be said that the service of notice has been proved. Learned counsel for the respondent then proceeded to attack the findings of the learned appellate court in the matter of Talb-eMuwathibat. According to him as per ultimate decision of the Hon'ble Supreme Court in the case of Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others (PLD 2007 SC 302) sufficient pleadings were not made inasmuch as the place of making talb and the names of members of the Majlis have not been mentioned. Learned counsel for the petitioner rejoins with objection that since the matter of Talb-e-Muwathibat has not at all been agitated in the course of first appeal it cannot be raised in the present revision. Further contends that the said judgment in the case of Mian Pir Muhammad has reference to judgment in the cases of Hiji Saleem V. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst.
Sahib Jamala and others (PLD 2005 SC 977) and it was the view expressed in the said judgments that was endorsed and approved and the ultimate decision does not at all require the mentioning of the members of Majlis in the plaint. Learned counsel relies on reasoning of their lordships in the said respective judgments to contend that emphasis was on mentioning of date and time only to compute the limitation prescribed by law for service of notice of Talb-e-lshhad.
3. I have gone through the copies of records with the assistance of the learned counsel for the parties. It will be seen that only the matter of talb has been agitated in this civil revision. The petitioner stated in para. 3 of the plaint that on 21-1-2004 at 6-00 p.m. He was present in Majlis when Muhammad Boota informed about the sale and he made the first talb. In the course of evidence it has been explained that the petitioner was present in his Bathaik along with Safdar when Boota came and informed and similar is the statement of Safdar P.W.2 and Muhammad Boota, PW-3. Nothing came out in the cross-examination.
4. As noted by me above, the learned trial court under relevant issue No,2 only discussed the matter of Talb-e-Muwathibat. He proceeded to discard the statement of the said witnesses only on the ground that while proceeding to court for getting the notice scribed the petitioner as PW-1 stated that they started journey at 9-00 a.m. And they reached court at 10-30/11-00 a.m. Whereas Safdar Ali, P.W.2 stated that they started journey 7/7-30 a.m and reached court at 9-00 a.m while Muhammad Boota stated that they started journey at 8-00 a.m and reached court at 10-00 a.m.
The learned Additional District Judge has very rightly ignored the said so-called discrepancy, which by all means is a natural variation as held by Hon'ble Supreme Court in the case of Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another 2001 SCM R 798.
5. However, the learned Additional District Judge proceeded to rely on the same so-called discrepancy while holding that service of notice has not been proved.
6. The main reason given by the learned Additional District Judge is that production of copy of the notice is violative of Article 77 of Qanun-e-Shahadat Order, 1984. It is but obvious that the learned Additional District Judge did not care to read Article 76 as well as Article 77 of the Qanun-e- Shahadat Order, 1984. Had he done so he would have found that very first exception to the rule laid down in the Article 77 is where the document sought to be proved is itself a notice i,e, in such a case service of notice to produce original document is not required.
7. Learned Additional District Judge also clearly lost sight of the fact that the respondent appeared as D. W.1 after the entire evidence of the petitioner had been recorded. In the witness box he did not at all state that he had not received the notice. Mere denial in the written statement without its being reiterated in the witness box to enable the petitioner to cross-examine him and confront him would not at all be sufficient to non-suit the petitioner who has led all available evidence. So far as the absence of the acknowledgement due receipt is concerned, by now law is well settled on the subject in several pronouncements of the Hon'ble Supreme Court that it is seldom that A.D. Receipt comes back to the addressor.
8. Coming to the said contention of the learned counsel for the respondent in the matter of non- mentioning of the place of first talb and the names of the members of Majlis. I have examined the judgment in the case of Mian Pir Muhammad and others. The provision of section 13 of the Punjab Pre-emption Act, 1991 and the several judgments pronounced by High Court and Hon'ble Supreme Court were referred to and ultimately their lordships agreed with the view taken in the cases of Haji Noor Muhammad v Abdul Ghani and 2 others (2000 SCM R 329) and Altaf Hussain.v Abdul Hameed @ Abdul. Majeed L.Rs and another (2000 SCM R 314) that there is no necessity of mentioning the name of the witnesses. However, the view expressed in the case of Haji Muhammad Saleem v.
Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977) was endorsed and approved.
9. I am in agreement with the line of arguments of the learned counsel for the petitioner that since the view expressed in the said earlier judgments was endorsed, the examination of the said judgments would be relevant. The said judgments have accordingly been examined. In the said case of Haji Muhammad Saleem where the leading opinion was delivered by Hon'ble Sardar Muhammad Raza, J. As also in the said case of Fazal Subhan and 11 others which judgment again was authored by his lordship. The primary reason stated is that in cases involving limitation of any kind the plaintiff is required to specify date and time of the commencement of limitation or knowledge of plaintiff in specific terms so that limitation is computed accordingly and his lordship accordingly observed that it is important to tell the date and time of the performance of Talb-e- Muwathibat in the same meeting and before the dispersal thereof and further it is therefrom that limitation of 15 days for performance of Talb-e-Ishhad has to be computed. I, therefore, do agree that mentioning of place of making of talb was not found lo be of that much importance as against the date and time as per ratio of the said judgments.
10. Having, thus, examined the record and in view of above discussion, 1 do find that the petitioner has proved making of valid Talbe-Muwathibat and then Talb-e-Ishhad in the manner prescribed by law as also in accordance with spirit of the said judgments of the Hon'ble Supreme Court. Civil revision is accordingly' allowed. The impugned judgments and decrees of the learned courts below are set aside and the suit filed by the petitioner/plaintiff is decreed against the defendant/ respondent for possession of the suit land by pre-emption. This will be subject to deposit of a sum of Rs,4,00,000 after adjusting 1/3rd already deposited. This deposit will be made in the learned trial court on or before 31-7-2009. In case the petitioner/plaintiff fails to deposit the said amount on or before the said date his suit shall stand dismissed with costs. At the moment no order as to costs.