ORDER ABDUL WAHEED KHAN, J.---Against the sale of land measuring 13 Kanals 16 Marlas bearing Khata Nos.364/ 365, 367,368 and 369 of Mouza Bhilmana, for consideration of Rs.70,000 vide Mutation No.868 dated 12-4-2000 the petitioners/plaintiffs filed a suit for possession through pre- emption. After filing of the written statement as many as eight issues were settled by the Civil Court. One of the plaintiffs Muhammad Aslam appeared as P.W.1, Gamoo Khan P.W.2 and Mukhtar Hussain P.W.3. He also produced documents from Exh.P.1 to Exh.P.11 while closing his evidence. On the other hand, the defendant examined Khutta Khan as DW.1 and Khuda Bukhsh as DW.2. Whereas, documentary evidence was produced from Exh.D.1 and Exh.D.2. The suit was dismissed by the Civil Court through the judgment and decree dated 15-6-2009. An appeal filed there against also met the same fate through the impugned judgment and decree dated 26-4-2011, hence this revision petition.
2. The contentions of the counsel for the petitioners are that the courts below have wrongly concluded that the petitioners had lost their right of pre-emption due to associating a stranger in the suit and that it was a remediable/curable defect which could be removed by striking of the petitioners Nos.2 and 3 from the array of plaintiffs, that judgments and decrees are based on conjectures and surmises and that Muhammad Aslam one of the plaintiffs has fully corroborated the statement of P.W.2 and P.W.3, that requirements of performance of Talbs were fully performed.
Lastly submits that the courts below held that the petitioner No.1 was a co-sharer in some Khata of the suit-land and that at least to that extent the suit should have been decreed.
3. Arguments of the counsel for the petitioners have been heard and record perused. Attested copies of the plaint shows that at the time of making Talb-eMuwathibat all the three petitioners were present and astonishingly one of them namely Muhammad Aslam entered into the witness box as P.W.1. Petitioners Nos.2 and 3 did not pursue the suit and could not substantiate that in fact they made a jumping demand, therefore, to their extent Talb-e-Muwathibat could not be proved.
The appellate court has rightly observed that it cannot be substantiated from the evidence, which was mandatory for all the Plaintiffs, to prove that they made a jumping demand at the moment they came to know about the sale transaction. Attested copies of the statement of Muhammad Aslam P.W.1 to P.W.3 have been placed on record of this petition. Although all of them have mentioned the date when they came to know about the sale transaction but they could not substantiate the same while appearing as a witness. Relevant portion from the statements of all the three P.Ws. Is as under:- {{URDU TEXT}}
4. The Hon'ble Supreme Court of Pakistan in the; case of Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. And others (PLD 2007 SC 302) held that:- "a plaint wherein the date, place and time of Talb-e-Muwathibat and date of issuing the notice of performance of Talb-e-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit."
As mentioned above, although time date and place of Talb-e-Muwathibat is mentioned in the plaint but this fact could not successfully been proved by the P.Ws. While recording their statements before the Civil Court.
5. It is well-settled principle of law that pleadings are not deemed to be the evidence, and have to be proved by producing evidence. It has been held by the Hon'ble Supreme Court of Pakistan in case of Muhammad Akram and another v. Mst.Farida Bibi and others (2007 SCM R.1719) that "pleadings of parties are not substantive piece of evidence unless and until averments made in pleadings are proved from evidence in court or admitted by the other party." A party is expected and is bound to prove the case as alleged by him as covered by the issues framed. This is in accordance with the principle of Secundum allegate probate, i.e. a party can only succeed according to what it has alleged and proved. Although the petitioner/plaintiff has alleged in the plaint that he came to know about the sale transaction at a particular date, time and place but the said fact could not be proved by the P.Ws. In this view of the matter, the facts mentioned in the plaint about Talb-eMuwathibat have not been proved, the same is fatal to the suit for pre-emption.
In the case in hand, the petitioner/plaintiff failed to bring evidence on record and to prove the specific date and time of making Talb-eMuwathibat.
Not only the co-petitioners/ plaintiffs Shah Nawaz and Bahawal Khan failed to appear before the court to prove the factum of Talb-e-Muwathibat but P.Ws.1 to 3 also did not mention the date when they allegedly made Talb-eMuwathibat. In this view of the matter, the Civil Court has rightly dismissed the suit through the impugned judgment and decree and the appellate court has also rightly dismissed the petitioner's appeal through the impugned judgment and decree. The counsel for the petitioners could not point out any illegality or irregularity in the impugned judgments of courts below and the same do. Not call for any interference.