SYED ASGHAR HAIDER, J.---The respondents purchased the disputed land from Mst. Hashmat Ali and Amjad Ali for an ostensible consideration of Rs,40,00,000. The petitioners/plaintiffs after fulfilling the requirements of section 13 of the Punjab Pre-emption Act, 1991, claiming a superior right of pre-emption, on basis of being co-sharer, contiguity, common source of passage and irrigation filed a suit for possession through preemption. The respondents contested the suit of the divergent pleadings of the parties 8 issues were framed, the parties were put to trial, they led evidence, thereafter the trial Court dismissed the suit on basis of issues Nos.1 and 2 (regarding Talabs).
Aggrieved thereof, the petitioners/plaintiffs filed an appeal, it also was dismissed, hence the present petition.
2. The learned counsel for the petitioners contended that the petitioners/ plaintiffs produced six witnesses including the Post Master, Post Man and Patwari to prove Talb-i-Ishhad, and tendered documentary evidence in shape of Exh.P1 to Exh.P15, while the respondents/ defendants only got their statement recorded through their attorney Muhammad Riaz and produced no witness. But the trial Court on the basis of preponderance of evidence, which is benchmark in civil litigation fell into error and gave an incorrect finding. The respondents also did not file any cross objection or appeal, therefore, they admitted the findings given by the trial Court on the remaining issues as correct, wherein pivotal document, the power of attorney qua filing of the suit was answered in affirmative.
The petitioners claimed superior right on basis of Shafi Sharik, Shafi Khalit and Shafi Jar. The witnesses affirmed this position and the same was also proved by Exh.P14 and Exh.P15, but strangely enough, despite considering these documents the Courts fell in error and negated their impact, thus they committed a patent illegality. As far as the issues of Talbs are concerned, they were performed strictly in accordance with dictates and commands of section 13 of the Punjab Pre- emption Act, the analogy adopted by the lower Appellate Court and the trial Court to disprove the contention of the petitioners is against record. The reasoning given qua Talb-i-Muwathibat and its performance in accordance with law is conjectural and against Article 164 of Qanun-e-Shahadat Order, 1984, as telephonic message/ information is adequate for the purposes of this section. The witnesses of the petitioners/plaintiff adequately discharged onus and nothing could come out from them in cross-examination, therefore, on this fact also, the findings of the lower appellate Court and the trial Court on issues Nos.1 and 2 are not in consonance with record. To fortify his contentions, the learned counsel referred to PLD 1989 SC 530 and Abdul Malik v. Muhammad Latif 1999 SCM R 717.
' The learned counsel for the respondents are the very outset stated that the petitioners/plaintiffs had confined their arguments only to R.S.A. No,4/08, R.S.A. No,5/08 and R.S.A. No,6/08 and no arguments were made on the instant matter, therefore, on this short ground alone, the same be dismissed. The learned counsel also pleaded that the parameters as set out in section 13 of Punjab Pre-emption Act, were not adhered to by the petitioners. Evidence was not only concurrently perused by the trial Court and the lower appellate Court but discussed, dissected and deciphered, whereafter issues Nos.1 and 2 pivotal, for decision and adjudication of the dispute could not be proved by the petitioners. It emphatically was pleaded that the information by telephone does not fulfil the parameters of section 13 and therefore Talb-i-Muwathibat was not performed in accordance with law. As the information is not only is to be communicated but is required to be made in presence of two witnesses, which has not been proved any where. The petitioners also changed their stance qua the telephone as initially it was stated that the conversation took place through a landline but later it was pleaded that a mobile phone was used. This discrepancy alone disentitles the petitioners of any relief. To further argument the submissions, the learned counsel referred to Akbar Ali v. Muhammad Abdullah 2007 SCM R 1233 to plead that if Talbs have not been performed as ordained by law and section 13 of the Punjab Pre-emption Act, there is no need to prove other issues and the suit warrants dismissal. To conclude the learned counsel referred to Muhammad Usman and another v. The State 2008 SCM R 81 and Ghulam Nabi and another v.
Manak and another 2006 YLR 93.
' Heard.
4. The petitioners, to prove their cause tendered in evidence the following documents.
General Power of Attorney Exh.P1 Notices of Talb-i-Ishhad Exh.P2 and 3 Receipts of Postal Office Exh.P4 and 5 Registered postal envelope Exh. P6 Oast Bay Chart. Exh. P7 Attest copy of Sale-Deed. Exh.P8 Copy of Jamabandi Exh. P9 and P10 Attested copy of plaint. Exh.P11 Attested copy of statement Exh.P12 Of counsel for plaintiff Order of CourtExh.P13 Copy of Iqrar Nama Sale Mark-A Copy of Warabandi Exh.P14 Contour Plan Exh.P15 And additionally produced six witnesses. The trial Court and the lower appellate Court concurrently took stock of all eight issues framed and thereafter adverted in detail to the evidence tendered by the petitioners (P.W.1) Muhammad Riaz General Attorney of the petitioners, Habib Ahmad P. W.2, Rehmat Ali P.W.3, Fazal Karim Post Master P.W.4, Muhammad Yousaf Postman P.W.5 and Afzal Hayat Patwari as P.W.6. The lower Appellate Court also discussed the law on the subject, and conducted a similar exercise, in fact it went deeper and into more minute details 1 and not only discussed the material evidence, as adverted to earlier but also the parameters of section 13 qua Shafi-Sharik, Shafi Khalit and Shafi Jar. It was after deep appraisal of his evidence and discussion that the Court concurrently non-suited the petitioners and answered the issues in negative. There absolutely is no misreading or non-reading of evidence in this context; therefore, the findings in this regard are B unexceptionable. As far as the contention of the learned counsel for the petitioners is concerned qua non-filing of cross-objections of appeals, under section 115 of C.P.C. This Court itself is possessed of powers to call for record of any case which has been decided by a Court subordinate to it, and if it appears that the Court subordinate has exercised jurisdiction not C vested in it by law or has failed to exercise jurisdiction vested in it or has acted with material irregularity, it is empowered to rectify and correct any error of law, fact or jurisdiction without requiring the other party to file cross-objections, thus the assertion is overruled.
5. The question of performance of Talb-i-Muwathibat was discussed in length by both the Courts below and they concluded that the requirements contained therein have not been fulfilled. As admittedly such demand was not made in "majlis" as defined in section 13 of the Punjab Pre- emption Act, 1991, because law embodies physical presence of informant and two witnesses together. In the present scenario, this important ingredient is missing, as admittedly, the petitioners were informed through telephone and thus they received information but not in presence of two truthful witnesses. In these circumstances the analogy applied by both the Courts is unexceptionable, therefore, Talb-i-Muwathibat was not duly performed, consequently, the findings are unexceptionable on this issue.
6. Lastly the cause of the petitioners gravitates upon a general power of attorney Exh.Pl, there are major discrepancies in its execution. It was executed in United Kingdom without observing the legal or coda] formalities of municipal law practised there. It also is not tenable in law in Pakistan as it has not been endorsed E properly nor was signed by the Court or vice counsel as required under Article 95 of Qanun-e-Shahadat Order, 1984, therefore, it is legally ineffective. Consequently, the suit was improperly filed and rightly dismissed. There are concurrent findings of facts by two Courts below, there is no misreading or non-reading of evidence or material illegality, therefore, this petition F has no merits. The precedents referred to by the learned counsel are distinguishable.
7. Therefore, this petition has no merits and is dismissed leaving the parties to bear their own costs.