MAULVIANWARUL HAQ, J. - Vide registered sale- deed dated 12.10.2000 the respondent purchased the suit land for a consideration of Rs. 5,00,000/-. On 4.11.2000 the petitioner filed a suit for possession by pre-emption According in him, the land was in fact, sold for Rs. 3,00,000/- . He claimed to be a Shafi Sharik, Khalit and Jar. Performance of talbs was pleaded. The respondent filed a written-statement. He insisted that he had pay Rs.
5,0, 000/- in good faith for the land and also claimed incidental charges of Rs. 35,000/-. The other allegations were denied. Following issues were framed by the learned Trial Court:-
(1) Whether the consideration was paid Rs. 5,0, 000.00 in good faith? OPD.
(2) Whether the defendant is entitled to get the Rs. 35,000/- as registration fee the suit of the plaintiff is decreed? OPD.
(3) Whether the plaintiff has superior right of preemption being Shafi-e-Sharik, Shafi-e-Jar and Shafi-e-Khalit? OPP
(4) Whether the plaintiff has fulfilled the conditions of Talabs? OPP
(5) Whether the actual consideration was paid Rs. 3,0, 000.00 and ostensible sale price was mentioned Rs. 5,00,000.00 therefore, what is the market value of the suit property at the time of sale? OPP
(6) Whether the plaintiff is entitled to get the decree for possession through pre-emption Is Entitled to get the decree for possession through pre-emption as prayed for? OPP
(7) Relief.
Evidence of the parties was recorded. The learned Trial Court decreed the suit on 9.6.2003 subject to deposit of Rs. 5,0, 000/- as consideration and. Rs. 25,000/- as incidental charges. A .First appeal filed by the respondent was allowed by a learned ADJ, Mandi Baha-ud-Din, on 22.4.2004. The findings on issue No. 3, the fixation of price were up-held but the findings on issue No. 4 pertaining to talbs were set aside. Resultantly, the suit was dismissed.
2. Learned counsel for the appellant contends that in the over all circumstances of the case the learned ADJ made fetish of technicalities while reversing the judgment and decree of the learned Trial Court. Learned counsel for the respondent supports the impugned judgment and decree of the learned ADJ.
3. I have gone through the records of the learned' lower Courts, with the assistances of the learned counsel for the parties. I have already reproduced above the material contents of the pleadings of the parties. Oh the question of talbs has been agitated before me. Lt was stated in para 3 of the plaint that on 12.10.2000 while the appellant was present in his shop at the address stated at 4.00 p.m. Mehdi, Fruit Merchant, came to his shop and informed that the plot adjacent to his Haveli has been sold by the owners to the respondent. The same day he made the first talb and issued a notice of talb-i-ishhad on 14.10.2000 under registered cover A.D. Haji Muhammad Saleem appellant appeared as PW-2 and stated that Mehdi informed him at his shop about sale and he made the first talb. The next day the obtained the copies and on 14.10.2000 he got a notice scribed. He signed the same and the witnesses attested it and he sent it under registered cover A.D. The postal receipt was produced as Ex. P.I, the notice was received by the respondent. Since the A.D. Was not received back, he filed an application whereupon the Post Office issued a certificate i.e. Mark-A regarding the receipt of the notice. The notice is Ex. P.3. He was cross-examined and he was made to state that the witnesses came to him at 3.00 p.m. And remained present for two hours. He was further made to state that at 4.00 p.m. He was informed by Mehdi. He reiterated that he requested the witnesses to accompany him to the Court on 14.10.2000. Noor Hussain appeared as PW-4 and he stated that while he was present with the appellant in his shop Mehdi came and informed him about the sale and the appellant made the first talb. He stated the time as 4.00 p.m. And stated that it was the 10th month about 1 1/2 year ago.
4. In the circumstances of the case, where the appellant had stated that he got information of the sale on the very day it had taken place and notice Ex. P.3 which stands proved on record was issued on 14.10.2000, the judgments relied upon by the learned ADJ, in my humble view are not at all attracted. The ratio of the dictum i.e. The time, place and date must be mentioned (and in fact had been mentioned in the plaint) is to be determine as to whether the second talb had been made within the statutory period or not. In the present case, the sale having admittedly taken place on 12.10.2000 and notice having been proved to be issued on 14.10.2000 the said dispute does not arise at all. The learned ADJ has not at all commented upon the performance of the second talb neither it has been agitated before me. However, as noted by me above, the notice Ex. P.3 has been proved by the attesting witnesses and its posting and delivery has been proved by producing the postal receipt as also Muhammad Aslam, Clerk, GPO, Mandi Baha-ud-Din as PW-1 who brought the record of the registered letter and stated that according to the record the notice was delivered.
5. In view of the above discussion, this RSA is allowed. The judgment and -decree dated 22.4.2004 of learned ADJ, Mandi Baha-ud-Din to set aside while the one passed by the learned Trial Court decreeing the suit on 9.6.2003 is restored, In case the appellant/Plaintiff has not already deposited the amount as directed by the learned Trial Court, he shall deposit the same with the learned Trial Court on or before 15.4.2009 failing which the suit shall stand dismissed with costs throughout. At the moment the parties are left to bear their own costs.
6. The records of the learned Trial Court be remitted back immediately.