' NASIR SAEED SHEIKH, J.---This Civil Revision is directed against the judgments and decrees passed by the two courts below in the matter whereby a suit instituted by the petitioner for possession through the exercise of his right of pre-emption was dismissed by the learned Civil Judge Sialkot .Vide judgment and decree dated 15-4-2002 and the appeal preferred by the petitioner against the judgment and decree of the learned trial Court was dismissed by the learned Additional District Judge Sialkot, vide judgment and decree dated 23-1-2003.
2.. Briefly stating the facts of the case are that Sarwar Ahmad the petitioner instituted a suit for possession through exercise of his right of pre-emption in respect of land measuring 4 kanals 13 marlas described in para-1 of the plaint situated in village Hamza Ghous Tehsil and District Sialkot which was purchased by the 'respondents through Sale-deed No,1405 dated 1-3-1994 for a sum of Rs,800,000 as reflected in the sale-deed. The petitioner alleged that he possesses superior right of pre-emption and after performing necessary talbs he instituted the suit on 3-5-1994 for possession through exercise of his right of pre-emption against the respondents. It was further contended that the actual sale price for the transaction in question was Rs,550,000 and in order to defeat the right of pre-emption of the petitioner a fictitious price of Rs,800,000 was reflected in the sale-deed in question.
3. The respondents denied the claim of the petitioner by submitting a written statement dated 27- 10-1994. The learned Civil Judge framed the following issues arising out of the pleadings of the parties:- ISSUES
(1) Whether valuation of the suit for the purposes of court fee is not correct, if so, *hat is correct valuation? OP Parties.
(2) Whether price Rs, 8, 00,000 was fixed and paid in good faith by the vendee/defendants? OPD
(3) If the above issue is not proved what was the price of suit-land at the time of disputed sale?
OP Parties.
(4) Whether the plaintiff performed talbs in accordance with Muhammadan Law and Preemption Act 1991 ? OPP
(5) Whether the plaintiff has superior right of pre-emption qua the defendants/vendees? OPP
(6) Relief.
4. The parties produced their respective oral as well as documentary evidence. Although the learned Civil Judge recorded finding in favour of the petitioner to pre-empt the subject sale having superior right of pre-emption but after recording crucial finding on issue No,4 regarding the non- performance of the necessary talbs, by the petitioner/plaintiff the learned Civil Judge dismissed the suit of the petitioner vide judgment and decree dated 15-4-2002. The sale price mentioned in the sale-deed as Rs,800,000 was also upheld to be the actual sale price for which the transaction was effected in favour of the respondents by the vendor. The petitioner preferred an appeal against the judgment and decree of the learned, trial Court which appeal came 'up for hearing before a learned Additional District. Judge and was dismissed vide judgment and decree dated 23-1-2003. Hence this Civil Revision.
5. It is contended by the learned counsel for the petitioner that Talb-eMuwathibat was convincingly proved by the petitioner by appearing as P.W.5 himself and by producing Abdul Razzaq as a supporting witness. It is further contended that notice of Talb-e-Ishhad was sent by the' petitioner to the respondents through registered postal service with acknowledgment due therefore the petitioner has successfully discharged the onus to prove the performance of Talb-eIshhad by him.
It is next contended that the two courts below have misread and misappreciated the evidence on the record. The learned counsel relied upon the judgment reported as PERVAIZ AND ANOTHER V.
MUHAMMAD NAWAZ (2006 SCMR 4) to argue that producing of receipt of the post office is sufficient to discharge the onus by the plaintiff of performance of Talb-eIshhad.
6. The learned counsel for the respondents has opposed the arguments of the learned counsel for the petitioner by arguing that the plaint as instituted by the petitioner does not specify the time and the place where the Talb-e-Muwathibat was performed by the petitioner. It is further contended by the learned counsel for the respondents that admittedly the respondent No,2 was abroad at the time of sending of notice as claimed by the petitioner in performance of Talb-e- Ishhad. It is further argued that the due performance of Talb-e-Ishhad against the respondent No,1 was also not proved by the petitioner as the postman who appeared to make a. Statement in support of the above contention did not produce the Acknowledgment receipt during his statement recorded as P.W.3. It is further contended that the name of tile. Informer has not been mentioned in the plaint nor the same informer whose name was disclosed by the petitioner while appearing 'as P.W.5, was produced by the petitioner. It is further contended that the performance of Talbs were not proved through convincing evidence by the petitioner as about the Talb-e- Muwathibat the witnesses of the petitioner made contradictory statements. It is further argued that the envelope which was claimed to have been sent to the respondent No,2 for performance of Talb-e-Ishhad was opened in the court and no notice was found in the said registered envelope as is reflected in the examination in chief of P.W.5, the petitioner. It is further contended that the two courts below have recorded concurrent findings of facts against the petitioner and the suit as well as his appeal has been correctly dismissed by the two courts below.
7. I have considered the arguments of the learned counsel for the parties.
8. It is an admitted fact available on the record that the petitioner/plaintiff did not allege the time and place of making of Talb-e-Muwathibat in para-3 of the plaint. The plaintiff did not even allege in para-3 of the plaint that he got information of the sale in question from the mouth of Muhammad Rafique witness. The plaintiff only claimed the making of Talb-eMuwathibat in the presence of Muhammad Rafique and Abdul Razzaq witnesses. The plaintiff in his statement got recorded as P.W.5 alleged the presence of Rehmat Ullah, Saila Ullah, Abdul Razzaq and Muhammad Rafique at the time of making of Talb-e-Muwathibat but in the plaint he has not- mentioned the names of Rehmat Ullah and Sana Ullah to be present when he performed the Talb-e-Muwathibat.
The learned Civil Judge recorded crucial finding on issue No,4 in the following manner:- "After perusing the evidence and hearing the discussion it is evident that no time or place about the awareness of the sale-deed to the plaintiff is mentioned in the plaint. There is also contradiction that how many persons present at the moment when the plaintiff because aware of the sale deed through Muhammad Rafique. Furthermore the plaintiff claimed that he went to the defendant with Rafique and Abdul Razzaq while P. W. 6 says that Sana Ullah was also present with them. There is also no mentioning of Sdna Ullah and Rehmat in notice Exh.P.7/1 that they went along with the plaintiff Abdul Razzaq and Rafique. The .Plaintiff himself contradicts regarding the presence of Zahid and in his evidence he says that he was abroad at that moment while in notice in Ex. P.8 he claimed that he went to Zahid who met him."
The findings recorded by the learned Civil Judge have been upheld by the learned Additional District Judge. It is also a matter of record that the plaintiff/petitioner did not produce the alleged informer from whom he got information about the sale transaction and the Superior Courts of Pakistan in the judgments reported- as NAWAB DIN THROUGH LRS V. FAQIR SAIN (2007 SCMR 401), WILAYAT KHAN V. MUHAMMAD SHARIF THROUGH MST. IRSHAD BIBI AND OTHERS (2004 CLC 240), ABDUL SATTAR AND ANOTHER V. MIAN MUHAMMAD ATTIQUE AND ANOTHER (2010 YLR 616) have laid' down the law that the informer from whom the plaintiff receives an information of sale have to be produced.
It has been laid down by the honourable Supreme Court of Pakistan in judgments reported as MIAN PIR MUHAMMAD AND ANOTHER V. FAQIR MUHAMMAD THROUGH L.RS AND OTHERS (PLD 2007 SC 302), and SHER AFGHAN V. SHER BAHADUR (2011 CLC 1830) that where the time and place of making of Talb-e-Muwathibat is not mentioned in the plaint by the plaintiff such a plaintiff must fail in his suit.
It is. Held in the latest judgments reported as MUHAMMAD BASHIR AND OTHERS V. ABBAS ALI SHAH (2007 SCMR 1105) and BASHIR AHMED V. GHULAM RASOOL (2011 SCMR 762) by the honourable Supreme Court of Pakistan that where the plaintiff alleges performance of Talb-e-Ishhad by him by sending of notice of Talb-e-Ishhad through registered post and if the said fact is denied by the defendants then the plaintiff of such a suit must produce the postman to prove the delivery of the notice to the defendant or its refusal by the later as the case may be. Although the petitioner has produced the postman as P.W.3 but this witness admitted that the defendant Zahid Mehmood was out of country when he took the envelope Exh.P4 for delivering the same to the said respondent whereas the registered post notice sent to the respondent No,1 was not proved by producing the acknowledgment due receipt by the said witness during his statement nor the register reflecting the distribution of the notice of Talb-e-Ishhad to the respondent No,1 was produced by the said witness while appearing as P.W.3. Reliance in this respect placed upon the judgment reported as NAWAB ALI THROUGH GENERAL ATTORNEY V. JAVAID IQBAL NABI AND OTHERS (PLD 2009 Lahore 49) is also important to note that the petitioner appeared as P.W.5 and the envelope Exh.P4 was opened in the court to prove the sending of notice of Talb-e-Ishhad by him to the respondent No,2 Zahid Mehmood and envelope was found empty as there was no notice enclosed therein,
9. In view of the above circumstances the judgments and decrees passed by the two courts below are in accordance with law. The judgments cited by the .Learned counsel for the petitioner are not relevant nor are applicable to the facts and circumstances of the instant case. The instant Civil Revision being devoid of any legal force is accordingly dismissed.