AMIN-UD-DIN KHAN, J. --- Through this regular second appeal, the appellants-defendants have challenged the judgment and decree dated 13.3.2004 passed by the District Judge, Bahawalnagar, whereby the appeal filed by the respondent-plaintiff was accepted and the judgment and decree dated 18.12.1995 passed by the Civil Judge 1st Class, Bahawalnagar, dismissing the suit, was set aside.
2. Briefly, the facts as leading to this appeal are that respondent-plaintiff, Mubarak A.I, filed a suit on 10.7.1991 to pre-empt the sale of land through registered sale-deed dated 11.3.1991 in favour of defendants.
The defendants appeared and contested the suit by filing written statement. The Trial Court on 22.10.1991 famed 13 issues and thereafter invited the parties to produce their respective evidence.
Both the parties adduced their oral as well as documentary evidence in support of their contentions. After the close of trial and hearing the parties, vide judgment and decree dated 18.12.1995 the Trial Court dismissed the suit. Feeling aggrieved thereby, plaintiff preferred an appeal before the first Appellate Court, which was accepted vide judgment and decree dated 13.3.2004, whereby the suit filed by the plaintiff was decreed. Hence, this regular second appeal.
3. Learned counsel for the appellants-defendants states that only issue No. 11 is under contest before this Court, which relates to performance of Talabs; that in Para No. 4 of plaint Talabs have been pleaded and in this para the plaintiff has not mentioned the name of Informer and impugned sale, date and place of information; that same is the position with the alleged notices of Talb-e- lshhad, which are Ex.P-2 to Ex.P-4 on the file. Further states that each notice is consisting upon two pages and at the side margin of first page the alleged signatures of witnesses are existing but thumb impression of plaintiff is not at the first page and thumb impression is contained on second page only; that only Sardar Muhammad, one of the alleged witnesses of notice, has been produced, whereas Sofi Ghulam Farid, the second witness, has not been produced; that at the time of recording of statement of plaintiff who appeared as P.W-5, he has not mentioned specific date of knowledge. He even stated that 4-1/2 years back he came to know about the sale and he has not stated date, time and place of knowledge of impugned sale. He also improved his statement and stated one Bilal was Informer. Learned counsel for the appellants-defendants further states that the sale was in execution of a decree passed in their favour in a suit for specific performance and the sale-deed was got executed through Reader of the Court in execution of that decree and they have produced the evidence on record that plaintiff got the certified copies of judgment and decree for which D.W-1 Muhammad Jahangir from the Copying Agency has stated that the plaintiff filed an application for obtaining certified copies on 21.1.1990, which were delivered to him on 25.1.1990, in this way, learned counsel states that the matter was in the knowledge of plaintiff.
While relying upon "2011 CLC 244 (Preston Education, Peshawar Pvt. Ltd. Through Vice-Chancellor, Preston University Vs. Yousaf Shah)" states that non-mentioning of name of an Informer in the plaint and notice is fatal. With regard to non-mentioning of date, time and place of knowledge learned counsel relied upon "2010 SCM R 1796 (Jamshed Khan Vs. Muhammad Saeed) and 2008 SCM R 1682 (Muhammad lqbal Vs. A.I Sher)".
4. On the other hand, learned counsel for the respondent-plaintiff states that all the issues have been decided in favour of plaintiff and the same have not been pressed by the learned counsel for the appellants-defendants. Only issue No. 11 is before this Court. Learned counsel states that even non-signing of notice of Talb-elshhad is not fatal by the witnesses if their names are mentioned therein. While relying upon "1999 SCM R 717 (Abdul Malik Vs. Muhammad Latit)" states that non- availability of signatures of witnesses of notice on the notice of Talb-e-lshhad is not fatal, as the mentioning of names of witnesses is a substantial compliance of Section 13 of the Pre-emption Act (IX of 1991) with regard to sending of notice through registered A.D. The defect of non-signing of notice at the end of its second page is not fatal in this case for the plaintiff.
5. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
6. As the notice is consisting upon two pages and if these pages are separate, then in my view it was necessary for the plaintiff to sign each page of notice. Besides, the plaintiff has not mentioned the name of Informer, time and place of knowledge of impugned sale but he has mentioned date of knowledge in Para No. 4 of plaint as 9.6.1991. When he appeared in the witness-box as P.W-5 on 24.10.1995, he has not stated the date of knowledge but stated that 4-1/2 years ago he came to know about the sale. In this way, his date of knowledge becomes as 24.4.1991, whereas in the plaint as well as in the alleged notice of Talbe-Ishhad, he has mentioned the date as 9.6.1991. In this context, light can be taken from the pronouncement of august Supreme Court of Pakistan reported as "PLD 2007 Supreme Court 302 (Mian Pir Muhammad and another Vs. Faqir Muhammad through L.Rs. And others)".
7. The time, place of knowledge and also the name of Informer has not been mentioned in the plaint and the alleged notice, of Talb-e-lshhad. Therefore, this defect with regard to non- mentioning of time and place of knowledge is fatal because for proving a jumping demand in accordance with Section 13 of the Punjab Pre-emption Act (IX of 1991), it is the primary duty of plaintiff to prove exact date, time and place of knowledge of impugned sale and then the Sitting or Majlis in, which he came to know about the impugned sale and further he has made the jumping demand which is called TaIb-i-Muwathibat. When the plaintiff has not mentioned the time and place of knowledge of impugned sale, then he cannot claim to have made a jumping demand without proving the time and place of knowledge of sale. Therefore, the fact of Talb-i-Muwathibat pleaded by the plaintiff was defective and same is the position of his evidence on this point. In this view of the matter, in the light of pronouncement of august. Supreme Court of Pakistan mentioned supra, plaintiff failed to establish the making of Talb-i-Muwathibat.
8. Moreover, the plaintiff has not even disclosed the name of Informer. The most pivotal matter for making Talb-i-Muwathibat is the Informer, till the time plaintiff is not able to plead and prove that who informed him, he cannot make the jumping demand, as the name of Informer is not mentioned even in the plaint as well as in the alleged notice of Talb-e-Ishhad. Though at the time of recording of evidence he introduced a person to be an Informer but that is very late and fatal against the plaintiff. This defect also is sufficient to hold that plaintiff failed to perform Talabs in accordance with law.
9. In the light of what has been discussed above, the first Appellate Court fell in error while reversing the findings of Trial Court and decreeing the suit. Resultantly, this regular second appeal is allowed. The impugned judgment and decree dated 13.3.2004 passed by the first Appellate Court are set aside. The result would be the suit filed by the respondent-plaintiff shall stand dismissed.
R.S.A. Allowed.