AMIN-UD-DIN KHAN, J. --- By this single judgment, I intend to dispose of Civil Revision Nos. 628 and 638 of 2005 as common questions of law and facts are involved in both these civil revisions.
2. Through these civil revisions the petitioners- plaintiffs have challenged the judgment and decree dated 1.3.2005 passed by the learned Additional District Judge, Mianwali whereby the appeal filed by the respondents were accepted against the judgment and decree dated 15.4.2004 passed by the Civil Judge, Mianwali, whereby suits for preemption filed by the petitioners-plaintiffs were decreed.
3. Brief facts of the case are that Hans Nadeem etc. Four brothers purchased the suit property through Mutations Nos. 1413 and 1414 sanctioned on 25.1.1997. These sale mutation were pre- empted through separate suits for pre-emption, two filed by Muhammad Ashraf and two others suit were filed by Muhammad Nawaz and Muhammad Yaqoob petitioners. All the suits were consolidated in the suit filed by Muhammad Ashraf. The learned Trial Court framed issues and rival.
Pre-emptores Muhammad Nawaz etc. Were presumed as defendants and the learned Trial Court vide its judgment and decree dated 15.4.2004 dismissed the suit filed by Muhammad Ashraf and decreed the suit filed by Muhammad Nawaz etc. Two appeals were filed by Muhammad Ashraf, two by vendee Haris Nadeem Khan etc. And two appeals with regard to issue Nos. 2, 3 and 7 by Muhammad Nawaz Khan etc. (These issues relate to the fixation of market value of the suit property). The learned first Appellate Court vide judgment and decree dated 1.3.2005 accepted two appeals filed by vendees-defendants and dismissed the appeals filed by both set of pre-emptores and in this way all the suits for preemption filed by the pre-emptores stand dismissed, hence these civil revisions filed by Muhammad Nawaz Khan and Muhammad Yaqoob pre-emptores.
4. Learned counsel for the petitioners states that the decree in favour of the petitioners granted by the learned Trial Court was upset by the learned first Appellate Court while reversing findings in issue No. 4. Learned counsel states that the plaintiffs have fully proved Talb-i-Muwathibat and Talb-i-lshhad and the learned Trial Court has decided issues in their favour while relying upon their evidence and the learned first Appellate Court fell in error while reversing the findings of the learned Trial Court on the ground that one of the plaintiffs appeared as a witness and the other plaintiff did not appear and further that the evidence of the plaintiffs with regard to knowledge of the impugned sale and making of Talb-i-Muwathibat is not specific in the statement of the plaintiffs and their witnesses. Learned counsel states that there was no need to produce the Postman as the notice was sent through registered acknowledgement due.
5. On the other hand, learned counsel for the Postman as the notice was sent through registered respondents states that there is no mention of time of knowledge of impugned sale and Talb-i- Muwathibat in the notice as well as in the plaint. Learned counsel further states that production of Postman was necessary. He relies upon Muhammad Bashir and others v. Abbas A.I Shah (2007 SCM R 1105). He has further argued that even notice on Talb-i-lshhad has not been proved as the witnesses have not stated in their statements specific time, date and place of knowledge as well as sending of notice.
6. I have heard the arguments of the learned counsel for the parties and have perused the record with their able assistance.
7. In the plaint time of knowledge is not mentioned and same is the position in making of Talb-i- Muwathibat, no time of making Talb-i-Muwathibat is mentioned. Now it is settled law that for proving a jumping demand , it is necessary for the plaintiffs to prove without shadow of doubt and with clear and convincing evidence, the time, date and place of knowledge of the impugned sale and then to prove jumping demand without any delay in-between knowledge of the impugned sale and making of jumping demand. When there is no mention of time of knowledge of impugned sale, only date of knowledge is mentioned, there must not be any delay in time of knowledge and making the demand. When the plaintiffs say that they came to know about the impugned sale on such date and also say that on such date they made the jumping demand when time of knowledge is not mentioned and also the time of making the jumping demand is not mentioned, how it can be presumed that without loss of time after knowledge the demand has been made, therefore, it is settled when time and place have not been proved with clear and convincing evidence, Talb-iMuwathibat is not proved. In this case admittedly no time of knowledge and demand have been mentioned in the plaint as well as in the alleged notice of Talb-i-lshhad Ex.D-1.
Therefore, the plaintiffs-petitioners cannot claim that they have proved Talb-i-lshhad and Talb-i- Muwathibat in accordance with law. Even the delivery of notice has not been proved and also the Postman has not been produced in the evidence. When receipt of notice of Talb-i-Ishhad has been denied by the defendants, therefore, proof of delivery of notice was necessary in the light of case- law referred supra. The other point that only one of the plaintiffs appeared in witness-box without having the power-of attorney from the other, it is also a fatal defect in the way of plaintiffs, every plaintiff has to prove his jumping demand by appearing in the witness-box or at least through duly appointed attorney. In this view of the matter, I see no infirmity or illegality in the findings recorded by the first Appellate Court and the learned counsel for the petitioners has failed to show any mis- reading or non-reading or illegality or infirmity in judgment and decrees passed by the first Appellate Court.
Civil revision .