' MAMOON RASHID SHEIKH, J.---Through this petition the petitioner has assailed the judgment and decree dated 14-12-2001 passed by the learned Additional District Judge, Attock in Civil Appeal No,159 of 2001 entitled Muhanimad Rafique v. Mst. Irshad Begum, whereby .The judgment and decree dated 30-7-2001 of the learned Civil Judge, Attock decreeing the petitioner's suit for possession through pre-emption, has been reversed.
2. Brief facts giving rise to the petition are to the effect that the petitioner filed a suit for possession through pre-emption regarding land measuring 6 kanal 19 marlas situated in Village Sabaz Pir, Tehsil Hassan Abdal, District Attock, fully described in the plaint.
3. The suit arose out of the sale of the land in dispute through Mutation No,906 dated 9-2-1995. The petitioner filed the suit on 13-3-1995 the same was . However, dismissed through judgment and decree dated 25-2-1999 by the learned Civil Judge, Attock. As a result of the petitioner's appeal the suit was remanded for decision afresh by the learned Additional District Judge, Attock through judgment and decree dated 6-12-2000. Upon remand the suit of the petitioner was decreed in her favour by the learned Civil Judge, Attock through judgment and decree dated 30-7-2001. Feeling aggrieved, the respondent filed an appeal, which was accepted through the impugned judgment and decree dated 14-12-2001 of the learned Additional District Judge, Attock.
4. The limited question, which requires adjudication in this petition is whether the petitioner was able to prove the Talbs as are required under the law in order to entitle her to obtain a decree for possession through pre-emption. The learned appellate court below after having gone through the record and appreciating the evidence brought on the record came to the conclusion that the petitioner had failed to establish the Talb-i-Muwathibat consequently the Talb-i-Ishhad was also not proved with the result that the decree in the petitioner's favour was set aside.
5. The learned counsel for the petitioner contends that the learned appellate court below has misappreciated the law as also the facts brought on the record. The sale of the land in question took place through Mutation No,906 dated 9-2-1995 against the total consideration of Rs,14,000, however, in order to defeat the petitioner's right of enforcement of pre-emption, the amount has mentioned as Rs,28,000 in the mutation. The petitioner being a co-sharer in the land in question (Shafi Sharik) had a prior right of pre-emption, the Talb-i-Muwathibat was made as soon as the petitioner came to know of the same the Talb-iIshhad was made on 22-2-1995 and the suit of Talb-e-Khusumat was made on 13-3-1995. All the ingredients were brought on the record but the learned appellate court below by misreading and non-reading of the record had dismissed the petitioner's suit.
6. The respondent's counsel at the outset has questioned the maintainability of the petition as also the suit of the petitioner by submitting that the petitioner's plaint as drafted does not conform to the requirements as laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs, and others (PLD 2007 SC 302). Contends that the plaint is silent as to the time, date and place in terms of section of the Punjab Pre-emption Act, 1991, as is envisaged in Mian Pir Muhammad's case (supra). He submits that without prejudice to any argument that may be available to him under the law, the suit of the petitioner is even otherwise liable to be dismissed.
7. The petitioner's counsel in rebuttal submits that the suit was filed prior to Mian Pir Muhammad's case (supra) and the same is not hit by the said judgment. Further submits that the petitioner's suit was in conformity with the law as laid down by. The Hon'ble Supreme Court of Pakistan at the relevant date. He refers to the cases reported as Altaf Hussain v. Abdul Hameed @ Abdul Majeed through Legal Heirs and another (2000 SCMR 314) and Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Also contends that the plaint is in conformity with the requirements of Order VI of the Code of Civil Procedure, 1908, which envisages that only material facts are to be given in the pleadings and not the evidence the party intends to rely upon. Further submits that the petitioner through her evidence was able to establish the time, date and place of performance of Talb-i-Muwathibat, however, the learned appellate court below failed to appreciate this fact.
Contends that even otherwise Mian Pir Muhammad's case (supra) is not applicable in the instant case as the petitioner's case does not fall in the category of a pending case. In this respect submits that a. Revision is not a continuation of proceedings/suit. Relies on Alaf Din v. Mst. Parveen Akhtar (PLD 1970 SC 75), Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241), Muhammad Daud v. Mst. Surriya lqbal and another (PLD 2000 Peshawar 54), Mst. Majidan Khanum v. District Judge, Vehari (1984 CLC 3270 Lahore).
8. The learned counsel for the respondent on the other hand submits that the instant petition is part of a lis and the word "lis" has been defined in the Blacks Law Dictionary as:-- "A piece of litigation; a controversy or dispute."
' Further submits that the reliance placed on the afore-noted judgments by the petitioner is misconceived, the matter has been finally settled by the Hon'ble Supreme Court of Pakistan.
9. I have considered the arguments addressed at the bar and find that the objection of .The respondent's counsel has force. The matter has been addressed in the pronouncements of the Hon'ble Supreme Court of Pakistan reported as Haq Arawaz v. Muhammad Kabir (2009 SCMR 630), Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559), Muhammad Iqbal v. Ali Sher (2008 SCMR 1682) and also the judgment reported as Muhammad Amin and 4 others v. Paira (2010 MLD 261). Whilst following the ratio laid down in Mian Pir Muhammad's case (supra) the Hon'ble Supreme Court of Pakistan has held that:-- "As to the next, contention of the learned counsel for the petitioner regarding applicability of the above referred case i.e, Mian Pir Muhammad (supra), on the pending cases filed before the pronouncement of the said judgment, it may be mentioned here that proposition in hand stands answered by this Court in the case of Mst. Bashiran Begum v. Nazar Hussain and another, PLD 2008 SC 559, wherein, it was held that the requirement of mentioning the date, place and time in the plaint is also essential even in the pending cases. The relevant portion of the said judgment reads as follows:-- "According to the dictum laid down by the larger Bench of this Court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending cases."
In the instant case, in para.2 of the plaint, the petitioner has only mentioned the date and place but the time of making the Talb-iMuwathibat has not been stated therein we are, therefore of the opinion that the learned Judge in the High Court has rightly declined to interfere with order of dismissal of the suit by the Additional District Judge, Jhelum dated 6-3-2006. Resultantly, this appeal is dismissed."
10. I have examined the plaint. The date, time and place of the performance of Talb-i-Muwathibat are "conspicuous by" their "absence". As a consequence the plaint does not fulfil the requirements as laid down by Mian Pir Muhammad's case (supra). The contention of the learned A counsel for the petitioner to the effect that the plaint was filed in conformity with the requirements of Order VI of the Code of Civil Procedure, 1908 also does not have force in view of the judgments supra of the Hon'ble Supreme Court. Similarly the contention of the learned counsel for the petitioner that the petitioner was able to prove her case by leading evidence is devoid of force as it is settled-law that a party cannot lead evidence beyond its pleadings and in case such evidence is led, the same is not to be read, nor a party can be allowed to improve its B case through evidence if the case has not been set up in the pleadings. Reliance in this regard is placed on Muhammad Iqbal's case (supra).
11. As to the learned counsel for the petitioner's contention that Mian Pir Muhammad's case (supra) is not attracted to the petitioner's case as the instant petition being a revision petition is not a continuation of the suit and consequently cannot be termed as a "pending case", suffice it to say that the contention is misconceived the reason therefor is two-fold. Firstly, in Maulvi Abdul Qayyum's case (supra) relied upon by the learned counsel for the petitioner it has been held that:- - "(7) The distinction between the remedy by way of appeal and revision is not unknown. The appeal is the continuation of original proceedings before the higher forum for the purposes of testing the soundness of the decision of the lower Court. On the other hand, the remedy of revision is discretionary and the revisional Court has to proceed under certain limitations in interfering with the judgment and decree of the lower Court, but both on filing the appeal or revision, as the case may be, the decree of the lower Court is put in jeopardy. Indeed the correction of error in the proceedings of the Court below, is common characteristic of both the .Remedies. The concept of acceptance of appeal is that the lower Court has failed to pass the decree which should have been passed. The same object is achieved when a revision from the decree of the lower Court is accepted. Thus in a way revisionat jurisdiction partakes of appellate jurisdiction. A case on this point is the one decided by a Full Bench of Madras High Court in Chappan v. Moidin Kutti (ILR 1899 Madras 68) where Subramania, J. Expressed the view that appellate jurisdiction includes revisional powers. Again in Nagendra Nath Dey and others v. Suresh Chandra Dey and others (59 IA 283), the Judicial Committee regarded an application for revision as an appeal in ordinary acceptance of the term. That was a matter arising out of an execution petition, which was opposed by the judgment-debtor as barred by Article 182 of the Limitation Act. In this regard, the precise observations of their lordships of the Judicial Committee are: ' There is no definition of appeal in the Code of Civil Procedure but their lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent "
' Similar was the opinion of a Division Bench of the erstwhile Dacca High Court in Mymensingh Co- operative Town Bank Ltd. v. Rajendra Chandra Roy (PLD 1961 Dacca, 312); the Court on the authority of some precedents from Calcutta High Court, in which it was laid down that under Article 182 the Limitation Act ran from the date of the order in revision, maintained that for the purposes of execution of a decree, the appeal included a revision. "
' Hence, by having filed the instant petition the petitioner has himself put his case "in jeopardy" as, "in a way revisional jurisdictional partakes of appellate jurisdiction". Secondly, the question of applicability of Mian Pir Muhammad's case (supra) to pending case has been laid to rest by the Hon'ble Supreme Court in the precedents cited above including Haq Nawaz's case (supra).
12. This Court, therefore, does not find any force in this petition it is accordingly dismissed with no order as to costs.