This matter concerned a pre-emption suit where the respondent-plaintiff sought to pre-empt the sale of land. The core legal questions revolved around the proper establishment of Talb-i-Muwathibat (immediate demand) and Talb-i-Ishhad (demand by witness/notice). The Trial Court dismissed the suit due to discrepancies in witness statements regarding Talb-i-Muwathibat and the failure to establish Talb-i-Ishhad. The Appellate and Revisional Courts subsequently decreed the suit. The Supreme Court, converting the petition into an appeal, allowed it, setting aside the judgments of the Appellate and Revisional Courts and upholding the Trial Court's dismissal of the suit. The Court held that a material discrepancy in witness statements regarding the venue of Talb-i-Muwathibat was overlooked by the lower appellate courts. Furthermore, it was a mandatory requirement for the pre-emptor to examine the postman to prove the sending of Talb-i-Ishhad notice, as the affirmative onus was on the plaintiff, and a subsequent admission by the defendant's attorney did not absolve the plaintiff of this obligation.
' MIAN SAQIB NISAR, J.---Respondent preferred a suit for preemption against the petitioner pre- empting the sale of the suit land, measuring 5 marlas, and in the plaint specifically mentioned the time, date and venue where Talb-i-Muwathibat was made and also the issuance of the sending of notice of Talb-i-Ishhad. Petitioner-defendant denied both the Talbs in the written statement and accordingly an issue was framed; parties were put to trial and the learned Civil Judge, seized of the matter while giving finding on issue of Talbs against the respondent and in favour of the petitioner was pleased to dismiss the suit, holding that. There are certain discrepancies in the statements of the witnesses produced by the respondent and that the notice of Talb-i-Ishhad had not been established. Aggrieved of the above, respondent preferred an appeal and succeeded and the learned Appellate Court while reversing the findings of the trial court on the said issue decreed the suit. This judgment and decree of the Appellate Court has been affirmed by th Revisional Court.
2. We have heard learned counsel for the parties and find vital discrepancy in the statements of P.W.1, P.W.2 and P.W.3 particularly, P.W.1 and P.W.2. P.W.2 stated that the disclosure of the sale of suit land was made to them while the plaintiff was sitting inside the shop of Aziz, whereas the informer who is the son of the pre-emptor, P.W.3 Muhammad Rafique, has contradicted the above and in unequivocal, clear and unambiguous terms stated that they were sitting outside the shop. This was a material discrepancy but the learned Appellate Court had failed to notice the same and it has also been overlooked by the learned Revisional Court. As regards, the issuance of notice of Talb- iIshhad is concerned, admittedly the postman has not been examined by the respondent-pre- emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCM R 1105). The argument of the, respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, ,it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two courts below.
3. In the light of the above, this petition is converted into an appeal and allowed, the judgments and decrees passed against the petitioner cannot sustain, which are hereby set aside and by upholding the judgment and decree of the trial Court, the suit of the respondent stands dismissed.
No orders as to costs.
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