' ABDUL WAHEED KHAN, J.--- The petitioner filed a suit for possession through pre-emption against the sale of land measuring 59 Kanals, 18 Marlas situated in Village Dhangana, Tehsil Mankera District Bhakkar through Mutation No,6001 dated 12-6-2007 for a consideration of Rs,80,000/-, as according to him, he had superior right of preemption qua the vendee/respondent in his capacity as co-sharer on the basis of contiguity of the land and the common passage. The defendants in their written statement denied the superior right of pre-emption and so also fulfilment of tlabs and prayed for dismissal of the suit. As many as seven issues were framed.
2. After settlement of the issues, both the parties produced their evidence. The petitioner/plaintiff produced Ghulam Asghar (his power of attorney) as P.W.1, Bahadar Khan, Sarwar Shah, Samar Abbas and Manzoor Hussain as P.W.2 to P.W.S. In documentary evidence, the plaintiff produced copy of Mutation Exh.P-10 and from the respondent side, Fakhar Abbas one of the defendant appeared as his own witness as DW-1 and in his documentary evidence produced copy of Register Haqadaran Zamin Exh.D-1, copy of Mutation 6001. As Exh.D-2, copy of Ruptt Roznamcha Waqiati as Exh.D.3, copy of plaint titled as Riaz Hussain v. Ghulam Haider Khan as Exh.D-4, copy of F.I.R. No,9 as Exh. D-5.
3. The suit was dismissed mainly for the reason that the plaintiff did not appear before the trial Cdurt as his own witness and thus failed to fulfil the requirements of Talb-e-Muwathibat and Talb- e-Ishhad and that P.W.1, who is power of attorney of petitioner/plaintiff, made dishonest improvements in his deposition regarding the place of jumping demand and also that he failed to state as to when he came to know about the sale transaction and he informed the plaintiff. The suit was dismissed vide judgment and decree dated 26-11-2010 and an appeal filed against the same was dismissed by Additional District Judge Mankera vide judgment dated 12-5-2011. Feeling aggrieved of the same, the petitioner has come before this Court through the instant revision petition.
4. The contentions of the counsel for the petitioner are that statement of P.W.1 Ghulam Asghar i,e, power of attorney of the plaintiff was recorded through a Local Commission and that the Civil Court could have sent the Local Commission to take evidence of the plaintiff as he is an old man of 70 years and also he is suffering a disease of joint pain. According to him, there were minor insignificant discrepancies between the statement of the P.Ws. Inter se which should have been ignored in the interest of justice. According to him the judgments of the both the courts below are based on misreading and non-reading of the evidence and thus the same be set aside and the suit filed by the present petitioner be decreed as prayed for before the Civil Court.
5. Arguments of the counsel for the petitioner have been heard. In a suit for possession through pre-emption the petitioner/plaintiff alleged that he came to know about the sale transaction at 2 p.m. On 11-7-2007, while he was present in his Baithak situated in village Dhangala Tehsil Mankera, District Bhakkar in the presence of P.Ws., but he failed to substantiate the contents of the plaint. It was for the plaintiff to enter the witness box and to prove the fact that he came to know about the sale transaction on a particular date, time and place and that, he made an immediate demand i,e, Talb-e-Muwathibat. His non-appearance before the court to prove this fact, was fatal to a suit for possession through pre-emption. It has been held in Muhammad Hafeez v Muhammad Hanif Khan and another (1991 M LD 1576) as under:-- "It is a settled principle of law that party personally knowing circumstances of the case is duty bound to appear as its own witness and submit to cross-examination failing which truth of that party may be discredited."
The ratio of the aforementioned, judgment is that when there are certain facts and circumstances in the knowledge of a party, an adverse inference could be drawn from its non-appearance. Article 129-G of Qanun-e-Shahadat Order reads as follows:--- "The evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
' In a similar case where the pre-emptor did not enter the witness box and only the attorney made statement on his behalf, the august Supreme Court of Pakistan, in case Abdul Qayum v.
Muhammad Sadiq (2007 SCM R 957) held that:--- "The right of pre-emption is a piratical right and pre-emptor must prove essential conditions for exercise of such right in accordance with provision of section 13 of Punjab Pre-emption Act, 1991 and without proving Talb-e-Muwathibat, which is foundation for exercise of right of pre-emption, the pre-emptor cannot maintain the suit. There is no' cavil to the proposition of law that pre- emptor without proving the performance of Talb-e-Muwathibat and Talb-e-Ishhad strictly in accordance with provMon of section 13 of Punjab Pre-emption Act, 1991, cannot succeed. In the present case pre-emptor claimed to have made Talb-e-Muwathibat on 6-8-1995 on the information conveyed to him by the witness but he did. Not appear in the witness-box to make a statement in affirmative of his claim regarding receipt of information and performance of Talb-e- Muwathibat immediately on receipt of information in presence of the witnesses."
' If was further held that:- "The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-e-Muwathibat being a personal act of the preemptor, is required to be proved by him through his own statement and an attorney may not be substitute of the preemptor under the law, therefore, notwithstanding the provision of section 14 of Punjab Pre-emption Act, 1991 according to which if a person is unable to make demand under section 13 (ibid), his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-e-Muwathibat in person and secondly, this exception appears to have been created to meet a situation in which either the pre-emptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-e-Muwathibat himself and appear in Court in person."
6. It could not be clarified or explained on behalf of the petitioner/plaintiff as to why he did not appear before the Court as his own witness to prove the contents of the plaint especially the requirements of Talb-e-Muwathibat, Talb-e-Ishhad and the superior right of pre-emption. Ghulam Asghar while appearing as P.W.1 did not utter a single sentence that the plaintiff was sick and that he was unable to appear before the court for making his statement. Neither he nor his counsel made any prayer for recording the statement of the plaintiff through Local Commission. Even otherwise, the plea that the trial Court should have recorded statement of plaintiff through a Local Commission, was not taken in the memo of appeal and thus the said plea can neither be allowed to be taken at this stage nor considered.
7. In the absence of the appearance of the plaintiff as his own witness, statements of the remaining P. Ws. Have no significance.
' As stated above, the petitioner/plaintiff did not enter the witness-box, therefore, neither he could prove that he made any Talb-e-Muwathibat nor he had any superior right qua the suit-land. For the above reasons, this petition has no merits and the same is hereby dismissed in limine.