' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioners have challenged the judgment and decree dated 14-1-2009 passed by learned Additional District Judge, Gujrat whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 17-10-2001 passed by learned Civil Judge, Gujrat thereby suit for preemption filed by the respondent-plaintiff was decreed.
2. Brief facts of the case are that plaintiff-respondent on 30-11-1995 filed a suit to pre-empt the sale of land measuring 26 kanals 1 marla for a consideration of Rs,1,50,000 through Mutation No, 4627 attested on 15-11-1995. As per case of the plaintiff he came to know about the sale of land on 18-11- 1995 at 8/9 p.m. At the residential house of Mushtaq Hussain through said Mushtaq Hussain in the presence of Nawab Khan and Maalik Khan son of Nawab Khan and he pronounced to exercise his right of pre-emption. Thereafter, on 20-11-1995 he sent a notice for compliance of Talb-e-Ishhad.
Written statement was filed. Suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After closing the trial vide judgment and decree dated 17-10-2001 learned trial court decreed the suit. Appeal was preferred which was dismissed by the learned first appellate court vide judgment and decree dated 14-1-2009. Hence, this civil revision.
3. Learned counsel for the petitioners states that he will only press and challenge the findings on issue No, 11 which is with regard to performance of talbs. Learned counsel for the petitioners argues that plaintiff-respondent failed to plead and prove through evidence the performance of Talbs in accordance with law; that even the specific time and place have not been pleaded nor proved by the plaintiff, therefore, plaintiff failed to prove the performance of Talbs in accordance with law; that neither the Postman nor acknowledgment due or the original envelope of notice has been produced, therefore, states that even Talb-eIshhad has not been proved in accordance with law.
4. On the other hand, learned counsel for the respondent-plaintiff states that there are concurrent findings recorded by the two courts below; that plaintiff-respondent has fully proved performance of Talbs in accordance with law. While referring the statement of defendant learned counsel has stated that when defendant appeared as DW-1, he admitted in cross-examination that he received notice of pre-emption through registered post then there was no need to produce the postman etc. Further argues that there is no question of non-reading and misreading involved in this case, therefore, while relying upon "Haji Muhammad Din v. Malik Muhammad Abdullah" (PLD 1994 Supreme Court 291) prays for dismissal of this civil revision.
5. I have heard learned counsel for the parties at length and have gone through the record with their able assistance.
6. First of all I take the point which has been noted by this Court on 13-4-2009 while admitting this civil revision. In this regard light can be taken from the judgment of this court reported as "Muhammad Shaiq Hussain v. Samir Manzoor Khokhar" (2003 CLC 1652) when the court has reproduced the evidence of one case in other case and at conclusion of each statement, there was endorsement "({{URDU TEXT}}) which had been duly signed by the trial Judge, both the parties fully participated in the proceedings before the Trial Court, but had not raised any objection nor pointed out any defect in proceedings. None of the parties contend that he was not present before the court or that such statement under his statement was incorrect. No prejudice has been claimed by any party. Even this objection of the petitioners has been opposed by the learned counsel for the respondents, therefore, in the circumstances of this case this objection has no value.
7. I have noted that in the plaint plaintiff has mentioned time of gaining knowledge i,e, 8/9 p.m. On 18-11-1995 whereas the place has been mentioned the residential house of Mushtaq Hussain. I am clear in my mind that the pleading of specific date and specific place is missing in the plaint as for proving the jumping demand it is the duty of the plaintiff to plead and prove the date, specific time and specific place A where he gained knowledge of the sale and announced his right of preemption. When the time has been pleaded as 8/9 p.m. It means that there is a difference of at least one hour in time of gaining knowledge of impugned sale and pronouncement of jumping demand. Same is the position of place of knowledge which has been pleaded as the house of Mushtaq Hussain. House is not a specific place. Plaintiff was bound to specify the specific place where he was sitting as the house consists upon constructed area, courtyard etc. In this regard light can be taken from "Mian Fir Muhammad and another v. Faqir Muhammad and others" (PLD 2007 Supreme Court 302). Same is the position in the evidence, time has been mentioned as 8/9 p.m. And residence of Mushtaq Hussain without specifying the specific place, even stated in the examination-inchief that original notice is with him.
8. So far as statement of P.W.2 Muhammad Maalik is concerned he also stated 8/9 p.m. When plaintiff came to know about the impugned sale, "plaintiff stated that he will pronounce his right of pre-emption". Same is the position of the statement of P.W.3 Mushtaq Ahmad, who is allegedly the Informer. He has also stated that when he informed the plaintiff, "plaintiff stated he will announce his right of pre-emption". In this view of the matter, plaintiff-respondent miserably failed to plead and prove Talb-e-Muwathebat in accordance with law. Furthermore, when DW-2 deposed that possession of land was delivered by the plaintiff himself to the vendees-defendants and possession was delivered at the time of sale, at this material point, the witness was not cross- examined by the counsel for the plaintiff, thetefore, the uncrossed portion of statement of witness of defendant will be presumed to have been admitted by the plaintiff. It means that plaintiff was in the knowledge of impugned sale since the time of attestation of sale mutation and story of knowledge of sale pleaded by him is incorrect. In view of the above, plaintiff failed to prove the performance of Talb-e-Muwathebat in accordance with law.
9. So far as performance of Talb-e-Ishhad is concerned, it was the primary duty of the plaintiff to prove Talb-e-Ishhad in accordance with law by producing the Postman to prove that the notice of Talb-e-Ishhad through registered post acknowledgement due was served upon the vendees- defendants or was refused by them, when in the written statement receipt of notice was denied. No Postman has been produced to prove the same. Though one of the vendees/defendants namely Muhammad Akram when appeared as DW-1, stated that notice of Talb-eIshhad was received by him. This admission can be used against Muhammad Akram only and not against the second vendee Muhammad Bashir. In view of the law laid down by the august Supreme Court of Pakistan reported as "Pervaiz Hussain and another v. Arabian Sea Enterprises Limited" (2007 SCM R 1105) and "Bashir Ahmad v. Ghulam Rasool" (2011 SCM R 762) plaintiff was bound to proved the service of notice or refusal to receive the same by the addressee by producing the Postman. In this view of the matter, performance of Talb-e -Ishhad is also defective and has not beep proved in accordance with law, therefore, findings of the courts below on issue No, 11 are set aside.
10. So far as concurrent findings of two courts below are concerned, it is not hard and fast rule that this Court cannot scrutinize the concurrent findings. If the findings are against the statutory law or settled principles of law then there is absolutely no bar upon this Court to set aside the same. The findings recorded by both the courts below on the point of Talbs are found to be against the settled principles of law pronounced by the august Supreme Court of Pakistan, which principles are binding upon all the courts of Pakistan in the light of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
11. Resultantly, when plaintiff-respondent has failed to prove Issue No, 11 in accordance with law, therefore, while allowing this civil revision, findings recoded by both the courts below which are against the settled principles of law are not sustainable under the law, same are set aside and suit filed by the plaintiff-respondents shall stand dismissed.