' ABDUL LATIF KHAN, J.---Aggrieved of the judgment and decree dated 14-3-2011 of learned Additional District Judge-II, D.I.Khan vide which their appeal against the judgment and decree dated 25-5-.2009 of learned Civil Judge-V, D.I.Khan was dismissed, the petitioners have preferred the instant revision petition.
2. Precise facts leading to the instant revision petition are that the respondent/ plaintiff filed a suit against the petitioners/ defendants for possession through preemption in respect of land fully described in the heading of the plaint, sold through Mutation No,414 dated 23-2-1999 for a sale consideration of Rs,42,000 but in order to defeat the right of pre-emption of the respondent/plaintiff, an inflated amount of Rs,1,20,000 was entered in the sale mutation. It was averred that the respondent/ plaintiff came to know about the suit transaction on 27-3-1999 through one Abdul Sattar and there and then declared his intention to pre-empt the same and on 1-4-1999, sent notices Talb-e-Ishhad to the petitioners/defendants.
3. The suit was contested by the petitioners/defendants by submitting their written statement. The learned trial Court framed issues arising out of the divergent pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments, the learned Civil Judge-V. D.I. Khan vide judgment dated 25-5-2009, decreed the suit in favour of respondent/ plaintiff.
4. Aggrieved of the judgment and decree dated 25-5-2009, the petitioners/ defendants filed an appeal which was dismissed by learned Additional District Judge-II, D.I.Khan on 14-3-2011, hence the instant revision petition.
5. Learned counsel for the petitioners contended that the Courts below have wrongly appreciated the evidence available, on file. The respondent has failed to prove the performance of talbs in accordance with law. No specific time has been given in the plaint nor proved in the evidence.
Word 'digar-vela' would not come within the ambit of specific time was argued that one of the petitioners was minor and suit against him was not filed through guardianad-litem. He contended that notices Talb-eIshhad have not been served upon the vendees in prescribed manner. He argued that no evidence has been produced for the proof of notices Talb-e-Ishhad and as such both the talbs were not proved in, accordance with law. He contended that another Mutation No,2071 was attested on the same day in 'jalsa-e-aam' which shows that the respondent had prior knowledge of the sale. He argued that the respondent had applied for the copies of mutations on 27-2-1999 but had not declared his intention to file pre-emption suit and subsequently on 27-3- 1999, allegedly Talb-e-Muwathibat was made which was delayed and by not making Talb-e- Muwathibat on acquiring knowledge, the respondent has relinquished his right of pre-emption. He contended that postman and scribe of notices were not produced but the Courts below have not adhered to these legal and factual points in accordance with law.
6. As against that, learned counsel appearing on behalf of the respondent contended that three mutations were attested on the same date i.e, Mutations Nos.414, 415 and 418 against which the respondent performed Talb-e-Muwathibat and Talb-e-Ishhad on one and the same day. He contended that the plaint does not disclose the date, time and place of Talb-eMuwathibat as well as Talb-e-Ishhad. He argued that Mutation No,2071 relates to other mouza, therefore, from the attestation of that mutation, knowledge of the respondent cannot be gathered. He contended that in the first round, the matter was also decided in their favour and was later on remanded for further evidence. He contended that the petitioners have not denied the receipt of notices in the written statement. He argued that the presence of respondent in `Jalsa-e-aam' has not been proved nor patwari or lumberdar were examined to prove this fact. He contended that the suits in respect of other mutations have been dismissed up to the august 'Supreme Court of Pakistan. He argued that the respondent has shown place of Talb-eMuwathibat as Dhalla/Gujrat which are two different places and different mouzajat/ estates.
7. I have given my thoughtful consideration to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
8. Perusal of the record shows that the respondent has based his claim to exercise his right of pre- emption against disputed Mutation No, 414 attested on 23-2-1999 by filing suit on 18-6-1999.
Perusal of the plaint shows that the respondent had acquired the knowledge on 27-3-199 but the time has not been given however, word 'digar-vela' has been mentioned. Similarly, the place of Talb-eMuwathibat is shown as Dhalla/Gujrat. The learned counsel for the petitioners vehemently stressed that these are two different villages, rather two different mouzajat and are not one and the same place. The other side was also unable to rebut this, however, tried to justify the same that these are adjacent mouzajat. Be that as it may, these are two different places and could not be termed as a certain place for performance of Talb-eMuwathibat. So far as word 'digar-vela' is concerned, that is also vague phrase and cannot be termed as a fixed time and the requirement of law is that, time, date and place has to be specifically mentioned in the plaint but in the instant case, the same is lacking, however, date of Talb-eMuwathibat has been given.
9. The petitioners averred in the written statement as well as in the evidence that the respondent had the prior knowledge of transaction and to this effect, they have produced Mutation No,2071 (Exh.D.W.1/1) which shows that at the same time and place in 'Jalsa-e-aam', this mutation was attested from which the knowledge of the respondent can be gathered safely. Moreover, application to the Copying Branch for obtaining copies of Mutations Nos.414 and 415 attested on 23-2-1999 was moved by the respondent on 27-2-1999. He has not received the copies of these mutations till date, however, normally, the application is given to the applicant for collection of copies from OK/NOK of Tehsil and when the mutations are certified at the time of delivery of copies, the application is taken from the applicant. In the instant case, the application moved by the respondent could not be traced, for the reason that the same ought to have been in possession of the respondent and he has not received the copies, as reveals from Exh.A.D.1/P-1. This evidence was brought on file after remand but the Courts below have not considered the same while passing the impugned judgments. The documentary proof of prior knowledge of the respondent shows that on 27-2-1999, he had the knowledge of the disputed mutation and for receipt of the copies, he had moved an application but did not turn up later on, however, he made Talb-e-Muwathibat on 27-3- 1999, one month after his knowledge and as such has relinquished the performance of Talb-e- Muwathibat. In this respect, the statement of AW-1, Clerk B Copying Branch is self-explanatory which clearly shows that the respondent had prior knowledge of the sale. The first and vital Talb being not performed at the relevant time immediately on acquiring knowledge, makes the case of the respondent liable to be dismissed as the superstructure, if any, made on the same would crumble down, therefore, notices Talb-e-Ishhad would be of no avail if Talb-e-Muwathibat is not performed properly in the mode and manner prescribed by law.
10. The delivery of notices Talb-eIshhad was not proved as neither the postman nor scribe has been produced. The perusal of the notices shows that the marginal witnesses have not attested the notices, rather have simply put their signatures, which is not the requirement of law. The marginal witnesses of notice Talbe-Ishhad must know the contents of notice as, they have to attest the same and should not act as mere chance witnesses by affixing thumb-impres'sion or sign it, as section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 specifically lays down that both the marginal truthful witnesses should attest the notice at the time of its scribing and be sent to vendees through registered A/D. Section 13(3) of the N.-W.F.P. Preemption Act, 1987 is reproduced below for ready reference: -- "Subject to his ability to do so, where a pre-emptor has made Talbe-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge, whichever may be earlier, make Talb-e-Ishhad by sending a notice in writing attested by two truthful witnesses, under, registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption: ' Provided that in areas where due to lack of post -office facilities it is not possible for the pre- emptor to give registered notice., he may make Talb-e-lshhad in the presence of two truthful witnesses."
The respondent was under legal obligation to prove the delivery of notice upon the vendee and to this effect, the postman was supposed to be produced before the Court and failure of the pre- emptor on this D account justify the dismissal of suit, as the provisions of section 13 of the N.-W.F.P.
Pre-emption Act, 1987 have not been complied with. Reliance in this respect is placed on the case of Bashir Ahmad's case (2011 SCM R 762) wherein it was observed that:-- "That no notice was sent to him. Under the circumstances, it was incumbent upon the respondent being the plaintiff, to prove service of notice upon the petitioner/ defendant, moreso, when there was no acknowledgment of the said notice available on record. It is true that the respondent through production of witnesses amply proved that notice of Talb-e-Ishhad was sent to the petitioner, but it is equally true that it was not proved on record that in fact the same was served upon the former, inasmuch as, it was not brought on record that he refused to accept/receive the notice. Under the circumstances, it was the duty of the respondent to have at least produced the Postman, through whom notice was allegedly got served upon the petitioner, to prove that notice was actually sent to him at the right address and he received or refused to receive the said notice."
' In Amir Muhammad's case (PLD 2011 Peshawar 116), this court held that A.D, card, if not available or produced on file, then examination of postman as witness in support of service of such notice, would become necessary, failing which, presumption would be that no notice was received by the defendant.
' In another judgment of this court reported as 2010 YLR 1190 it was held that production of A.D card was necessary to prove Talb-e-Ishhad and if not annexed with the plaint, being requirement of law, Talb-e-Ishhad would be incomplete and the production of postman in proof of service upon the defendant/vendee would become essential.
' The honourable Supreme Court of Pakistan in case reported as 2011 SCM R 762 held that production of postman was necessary to prove the service of notice Talb-e-Ishhad in the following observations: - "It, is true that the respondent through production of witnesses amply proved that notice of Talb- e-Ishhad was sent to the petitioner, but it is equally true that it was not proved on record that in fact the same was served upon the former, inasmuch as, it was not brought on record that he refused to accept/receive the notice. Under the circumstances, it was the duty of the respondent to have at least produced the Postman, through whom notice was allegedly got served upon the petitioner, to prove that notice was actually sent to him at the: right address and he received or refused to receive the said notice."
11. Perusal of the evidence reveals that the respondent in his Court statement has not given the exact time and has confined himself to 'digar-vela', however, regarding place, he has substituted his house instead of Dhalla/Gujrat which is departure from the pleadings. In first line of cross- examination, he deposed that his house is situated in Dhalla/Gujrat, meaning thereby that he has admitted that Dhalla and Gujrat are two different villages. So, the plaint and evidence are not in consonance with each other. In cross-examination, he further admitted that he cannot explain the time 'digar-vela' as the same differs with the change of weather. This shows that he was not certain even at the time of recording of statement and the same is the case about the place. In this respect, reliance is placed on the case of Din Muhammad and another. v. Subedar, Muhammad Zairian (2001 SCM R 1992) wherein it was observed that:-- "In this context first of all it is to be observed that respondent/ plaintiff cannot be conveniently allowed to make departure from his stand taken by him in the plaint because as per law of pleadings i.e, under Order VI Rule 7 C.P.C., departure from pleadings is subject to amendment, if so desired by the plaintiff, with the permission of the Court. As such without seeking amendment by the respondent from the Court, he cannot be allowed to set up a new case for obtaining relief as prayed for. Contrary to the stand of respondent in plaint, appellants at the time of filing written statement had categorically pleaded that they are in possession of suit property much prior to the attestation of mutation entry in their favour and they restricted themselves to it till the last.
Inasmuch as when evidence was led by them, they endeavoured to establish that their possession on the suit-land was, as of owners much, prior to attestation of mutation entries in their favour, as they had been utilizing the same. Therefore, stand of the appellants prima facie even without discussing the evidence available on record is considered consistent."
' The informer namely, Abdul Sattar deposed the matter in a unique manner that he came to know when he was on way to City while passing by the shop of Zahoor, brother of Manzoor, people were busy in congratulating Zahoor about the purchase of land and he also heard one Amir Hussain who was congratulating Zahoor and Manzoor on 27-3-1999. After that, while passing through the street, Abdur Rashid plaintiff was sitting in his house and he kept main gate of his house opened. At that time, Asar' prayer had been offered. He disclosed to him that Amir Hussain and his wife have sold the property to the defendants. This witness also failed to mention exact time to clear the ambiguity about the place as to whether the house was situated in Dhalla or Gujrat. He admitted in cross-examination that inmates of the plaintiff were not observing parda and at the time when he disclosed the information, the inmates of house were also present. This again amounts to contradiction, as the case of the plaintiff plus his statement, rather the examination-in-chief of even this witness does not speak about the existence of inmates of the house of plaintiff at the relevant time. Both the learned trial Courts failed to appreciate the evidence appreciate available on record in its true perspective and wrongly decreed the suit of the respondent.
12. For the reasons mentioned above, this petition is accepted, the judgments and decrees of the courts below are set aside and suit of the respondent is hereby dismissed, leaving the parties to bear their own costs.