ATTAULLAH KHAN, J.---Through this civil revision petition filed under section 115, C.P.C., the petitioners have questioned the concurrent judgments and decrees dated 17-3-2001 and 6-11-2004 passed by the Courts below respectively, whereby the pre-emption suit of the plaintiff/respondent Muhammad Ashraf Khan was decreed.
2. Facts of the case giving rise to the instant revision petition are that Ashraf Khan plaintiff had filed a pre-emption suit against Amir Muhammad defendant in respect of land measuring 8 kanals situated in Khasla Nos 217, 218 and 219, Khata No, 165, Katooni No,298, Monza Arra, Tehsil and District D.I. Khan on the basis of contiguity, immunities and appendages. It was averred in the plaint-that actual price of the suit land was Rs, 64',000 but a fictitious amount of Rs,1,36,000 was shown in the suit Mutation No, 1215 attested on 17-12-1995.
3. The defendant when summoned contested the suit by filing written statement. The divergent pleadings of the parties gave birth to the framing of the following issues:--
(i) Whether the plaintiff has got a cause of action?
(ii) Whether the plaintiff has not fulfilled the requirements of Talbs according to law?
(iii) Whether the suit is within time?
(iv) Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction?
(v) Whether the sale amount was actually paid in good faith'?
(vi) Market value?
(vii) Whether the plaintiff is entitled to the decree as prayed for?
(viii) Relief.
4. After evaluating the evidence brought on record and considering the arguments advanced at the bar by the learned counsel for the parties, suit of the plaintiff was decreed by the trial Court whereagainst appeal of the defendants also met the same fate as mentioned above and hence this revision petition.
5. Learned counsel for the petitioners contended that the requirements necessary for Talb-e- Muwathibat and Talb-e-Isshad have not been fulfilled; therefore, of both of them are defective and hence the same were not proved according to' law. He argued that the date of information about the sale and performance of Talbs by the plaintiff have not been mentioned either by plaintiff or by his three witnesses in their statements before the Court which is fatal to Talb-Muwathibat.
6. Regarding Talb-e-Isshad, his plea is that neither the AD card has been produced nor the concerned Postman to depose that whether the registered notice was served upon the defendant or not.
7. On the other hand, learned counsel for the respondent defended the impugned judgments and decrees by contending that both the Courts below have rightly decreed the suit of the plaintiff on the basis of evidence brought on record and the impugned conclusions being based on facts need no interference by this Court in exercise of its revisional jurisdiction.
8. I have gone through the record thoroughly and considered the arguments of the learned counsel for the parties in the light thereof.
9. The first point I want to discuss is regarding the first Talb, i,e, Talb-e-Muwathibat. The plain reading of the plaint reveals that the plaintiff in paragraph-3 has mentioned the date, time and place of performance of the Talbs along with the name of the Informer.
10. The evidence of the plaintiff mainly consist of his statement as P.W.3, statement of Sona Khan as P.W.4, statement of Nasir Khan as P.W.5 and statement, of Javed Khan as P.W.6.
11. The statement of the plaintiff discloses that he has mentioned the time of receiving information and place only. He has omitted something about the date.
12. Similar are the statements of P. Ws. 4, 5 and 6. All these witnesses have not stated and disclosed the date. The Informer, namely, Sona Khan, while appearing as P.W.5 has omitted to disclose the date, time and place in his examination-in-chief. In cross-examination, he has disclosed the time only as 'Sham Vela' which, in my opinion, is also defective because Sham Vela is a wider term and he should have stated specifically time in hours.
13. Thus Talb-e-Muwathibat has become defective by not disclosing the date in the evidence either by the plaintiff or by his three witnesses. There is a plethora of case-law on the subject of the Superior Courts including the Apex- Court that mentioning of date, time and place in the plaint as well as in the evidence is necessary, failing which the preemption rights of the pre-emptor cannot be enforced. So on this score too, the Talb-e-Muwathibat has not been performed legally.
14. Now coming to the second Talb, i,e, Talb-e-Isshad.
15. The statement of the plaintiff is that he dispatched the registered notice to the defendant duly attested by the two witnesses. On record the copy of notice is available as Exh.PW.3/1. The receipt of the said notice has been denied by the defendant. The plaintiff has admitted in examination-in- chief that he did not receive AD Card.
16. As herd by this Court in the case reported as YLR 2010 Page 1190, the filing and production of AD Card is necessary to prove Talb-e-Muwathibat and in case the same is not annexed with the plaint which is the requirement of law, Talb-e-Ishhad is incomplete. Moreover, the plaintiff has also not produced the Postman in proof of service of notice upon the vendee/defendant. His production and examination becomes necessary when AD card is not available.
17. As stated above, the plaintiff has not produced the AD card and he was required to have produced the Postman in support of service of notice. The recent judgment on this point is reported in 2010 SCJ 643 wherein it has been held by the Honourable Supreme Court of Pakistan that the production and examination of Postman is necessary to prove Talb-e-Ishhad. The relevant portion thereof is reproduced below:-- "It is true that the respondent through production of witnesses amply proved that notice of Talb-e- Ishhad was sent to the petitioner, but it is equally true that it was not proved on record that in fact the same was served upon the former, inasmuch as, it was not brought on record that he refused to accept/receive the notice. Under the circumstances, it was the duty of the respondent to have at least produced the Postman, through whom notice was allegedly got served upon the petitioner, to prove that notice was actually sent to him at the right address and he received or refused to received the said notice".
18. The above verdict makes it necessary for the Pre-emptor to examine in his support the Postman that the notice was served upon the vendee/defendant.
19. Since the plaintiff has failed to produce and examine the Postman, therefore, the presumption is that the notice of Talb-e-Ishhad was not received by the defendant/vendee. So on two counts, i,e, non-production of AD Card and non-examination of the Postman, the Talb-eMuwathibat allegedly made by the pre-emptor has also become defective.
20. In short, as discussed above, Talb-e-Muwathibat and Talb-eIshhad were not made in accordance with law, therefore, the plaintiff is not entitled to pre-empt the suit property.
21. In view of the above, I hold that both the courts below have erred in decreeing suit of the plaintiff and their impugned findings are the result of misreading and non-reading of material evidence brought on record.
22. As a corollary to what is discussed above, I accept this revision petition, set aside the impugned judgments and decrees of the Courts below and dismiss suit of the plaintiff/respondent leaving the parties to bear their own costs.