AMIN-UD-DIN KHAN, J. -- Through this civil revision the petitioner-defendant has challenged the judgment and decree dated 2 4.2002 passed by the learned Additional District Judge, Bahakkar whereby the appeal tiled by the petitioner-defendant was dismissed against the judgment and decree dated 18.9.1999 passed by the learned Civil Judge, Bhakkar whereby the suit for pre- emption filed by the respondent-plaintiff was decreed.
2. Brief facts of the case are that the respondent plaintiff filed a suit to pre-empt the sale of land through Mutation No. 2474 attested on 31.7.1998 in favour of petitioner-defendant. The suit was filed on 10.9.1998. The suit was contested. Written statement was filed. Issues were framed and the parties were invited to produce their respective evidence. Both the parties produced their respective evidence. The learned Trial Court vide judgment and decree dated 18.9.1999 decreed the suit. An appeal was filed and the same was dismissed vide judgment and decree dated 2.4.2002, hence this civil revision.
3. Learned counsel for the petitioner-defendant states that he only challenges findings on issue No. 1 and issue with regard to relief and will also advance the arguments with regard to said issues. The case of the respondent-plaintiff was that he came to know about the sale on 10.8.1998, whereas learned counsel states that he is nephew of the vendor and the story narrated by him is absolutely not plausible that attestation of mutation came in his knowledge on 10.8.1998. Learned counsel states that it was the case of the defendant-petitioner that plaintiff was present at the time of attestation of sale mutation and the suit land was purchased by defendant through plaintiff- respondent as the seller is his uncle. Further states that in his statement as DW.I the petitioner- defendant has categorically denied from receipt of any notice of Talb-i-Ishhad and making of Talb-i-Muwathibat by the plaintiff respondent and it is stated that the sale was in the knowledge of whole of the people of the village. Learned counsel states that in the cross-examination no question was put to the defendant-petitioner with regard to all the above- mentioned statement.
Even the alleged acknowledgement due was not put to him when he appeared in the witness-box and even otherwise the sending of notice and delivery of notice have not been proved by the plaintiff-respondent. Even PW.4 and PW.5 alleged attesting witnesses of notice, photo-copy of which has been produced as Ex.P-3, have not stated that this notice was sent to the defendant- petitioner through registered acknowledgment due. Therefore, states that the findings recorded by both the Courts below on issue No.1 are against the record and result of misreading and non- reading of evidence available on the file.
4. On the other hand, learned counsel for the respondent has stated that there are concurrent findings of fact recorded by both the Courts below, therefore, no case for interference by this Court is made out and there is no defect in the findings recorded by the Courts below.
5. 1 have heard the arguments of both the learned counsel for the parties and have perused the record with their able assistance.
6. I have noticed that defendant-petitioner has categorically stated that no notice of Talb-i-Ishhad was received by him. 'this part of statement was not cross-examined by the learned counsel for the plaintiff respondent . It is well-settled law that a portion of a statement which remains unchallenged in the cross-examination is presumed to have beep accepted by the other party. In this case as the learned counsel for the petitioner-defendant has highlighted that major portion of the examination-in-chief of the defendant-petitioner has not been cross-examined by the learned counsel for the plaintiff-respondent, therefore, that portion will be presumed to have been accepted by the plaintiff-respondent. Even otherwise, the statement of the plaintiff-respondent is that notice was sent through registered post acknowledge due by Muhammad Shafie but Muhammad Shafie the writer of the notice has not been produced by the plaintiff. The Post-man allegedly who served with the notice has not been produced and the alleged acknowledgment due with regard to the receipt of notice has not been put to the defendant-petitioner, when he appeared in the witness-box. Even the photo-copy of the alleged notice has been produced as Ex.P-3. The witnesses of the plaintiff have not stated that the original notice was sent to the defendant-petitioner and it is photo-copy of the said notice. Even the witnesses have not stated that the notice was sent to the defendant-petitioner. In this view of the matter, both the Courts below have ignored these facts while recording findings on issue No. I. The findings recorded by both the Courts below are result of mis-reading and non-reading of material evidence available on the file and the findings are also contrary to the settled principle of law. While relying upon Bashir Ahmed v. Ghulam Rasool (2011 SCM R 762), I am clear in my mind that the plaintiff- respondent has failed to prove Talbs in accordance with law.
Civil revision /suit dismissed.