' MUHAMMAD FARRUKH IRFAN KHAN, J.---Through this civil revision under section 115 of C.P.C. The petitioner calls in question validity of judgment and decree dated 22-4-2011 passed by learned Addl. District Judge, Pasrur, whereby the said court dismissed the appeal of the petitioner against the judgment and decree dated 20-7-2009 of the learned Civil Judge, Pasrur.
2. Briefly the facts of the case are that the petitioner filed a suit for possession through pre-emption against the respondent qua the disputed land fully detailed in para No,1 of the plaint. It was averred in the plaint that Abdus Sattar was owner of the suit-land who sold out the same to the respondents through oral Mutation No,88 dated 31-12-2004 for ostensible sale price of Rs,5,00,000; that the petitioner being the co-sharer in the Khata had superior right of pre-emption qua the vendee; that as soon as sale came into the notice of the petitioner he pronounced to exercise his right of preemption and also sent required notice to the respondent through registered post A.D. In the suit the petitioner prayed for a decree of possession through pre-emption. The respondent contested the said suit by filing written statement and raised certain preliminary as well as factual objections.
3. Out of the divergent pleadings of the parties, learned trial Court framed as many as seven issues including relief. After recording of the evidence and hearing the arguments, the learned trial Court vide its judgment and decree dated 20-7-2009 dismissed the suit of the petitioner mainly on the ground that on the date of performance of Talb-e-Muwathibat the sale was not complete. The relevant extract of the said judgment is reproduced as under:- "According to it the plaintiff purchased the suit property on 8-3-2006 but the mutation was sanctioned on 15-3-2006. The plaintiff exercised his right of preemption on 10-3-2006. Under section 30 of Punjab Pre-emption Act, 1991, the period of limitation for a suit to enforce a right of preemption under this Act shall be four months from the date of the attestation of mutation, if the sale is made otherwise than through a registered sale-deed. In the present case no transaction of disputed property was made on 8-3-2006, the date of exercising alleged right of pre-emption by the plaintiff. The demand of the pre-emptor was premature. The defendant has alleged that on 14-3-2006 he went to the plaintiff and asked him to purchase the suit property but he refused. As per defendant the disputed transaction was taken place on 14-3-2006 but brought into black and white on 15-3-2006. The plaintiff has not made talb-emuwathibat as per law. Moreover he is real brother of the vendor and is also co-sharer and it cannot be believed that the disputed transaction was kept secret by the defendant. The defendant is already owner of land in the said mouza. The plaintiff has made alleged talbe-muwathibat at the time when in fact no mutation was attested: The plaintiff has failed to prove talb-emuwathibat."
4. Being aggrieved the petitioner filed appeal before the learned lower appellate court, who vide impugned judgment and decree dated 22-4-2011 though disagreed with the view of the learned trial Court that the suit was premature by observing that "From available record it has transpired that transaction of sale was complete in all respects and then matter was reported to Patwari Halqa on 8-3-2006 whereafter Rapt Roznamcha Waqiati No,88 was recorded in relevant register.
Legally, attestation of mutation was just a formality to keep the record straight and transaction of sale was complete on 8-3-2006 so, appellant was competent to make Talb-e-Muwathibat and Talb-e-Ishhad even before the attestation of mutation as resolved in judgments relied from appellant's side. Learned trial Court, however, was justified in reaching the conclusion that appellant had failed to make talb-e-Muwathibat and his suit was liable to be dismissed to this extent and his findings are liable to be maintained". Learned lower appellate court further observed that "The appellant failed to produce evidence proving specific date, time and place of gaining knowledge'about or making talbs in accordance with law."
5. Being aggrieved the petitioner filed instant civil revision.
6. Learned counsel for the petitioner contended that the learned lower appellate court non-suited the petitioner on the sole ground that the P.Ws. Could not disclose exact date, time and place for performance of Talb-e-Muwathibat; that all the P.Ws. In their examination-in-chief narrated the date, time and place of performance of Talb-eMuwathibat and minor discrepancies occurred during the course of their cross-examination is not fatal to the case of the petitioner; that the petitioner has successfully proved the performance of both Talb-e-Muwathibat through confidence-inspiring evidence which has been overlooked by the learned courts below while passing impugned judgments and decrees.
5.(sic.) Conversely, learned counsel for the respondents vociferously defended the impugned judgments and decrees contending that there are material contradictions amongst the statements of P.Ws. Regarding performance of Talb-eMuwathibat, therefore, learned lower appellate court has rightly held that the petitioner could not prove performance of said Talb in accordance with law; that findings of facts recorded by the learned courts below needs no interference by this Court in its revisional jurisdiction.
6.(sic.) I have heard the arguments of the learned counsel for the parties and gone through the record.
7.(sic.) The learned lower appellate court has non-suited the petitioner only on the premise that in view of the dictum laid down by the Hon'ble Supreme Court it is mandatory to mention the date, time and place of making talb-e-muwathibat in the plaint and then to establish it through evidence but the learned lower appellate court has not referred any such judgment of the Hon'ble Apex Court. No doubt in the light of dictum laid down by the Full Bench of the Hon'ble Supreme Court in case reported as Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302) it has been made obligatory for a pre-emptor to disclose in the plaint date, time and place for performance of Talb- e-Muwathibat but the rationale behind it is to calculate the time for performance of Talb-e-Ishhad.
The relevant extract of the above esteemed judgment is reproduced as under:- "It is observed that great emphasis and importance is to be given to this word in making of Talb- eMuwathibat and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without slightest loss of time. According to the .Dispensation which has been reproduced hereinabove after performing Talb-e-Muwathibat in terms of section 13(2) of the Act, the preemptor has another legal obligation to perform i,e, making of Talb-eIshhad as soon as possible after making Talb-e-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-e-Muwathibat, therefore, the question can conveniently be answered by holding to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint, date, place and time of performance of Talb-e-Muwathibat because from such date, the time provided by the statute i,e, 14 days under subsection (3) of section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talbe-Muwathibat then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-e-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-e-Ishhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit."
(Emphasis is supplied)
7.(sic.) I have gone through the plaint as well as evidence of the petitioner with the able assistance of learned counsel for the parties and am of the considered view that not only the petitioner disclosed the time, date and place of acquiring knowledge of the impugned sale in his 'plaint but also the P.Ws. Narrated the same in their examination in chief in unequivocal terms. The discrepancies highlighted by the learned lower appellate court in discarding the evidence of the P.Ws. Regarding performance of Talb-e-Muwathibat are trivial in nature and can occur due to lapse of time ,therefore, on the basis of such minor discrepancies which are not material in nature, a pre-emptor cannot be non-suited. Reliance is placed on case reported as Abdul Qayum (deceased) through L.Rs, v. Mushk-e-Alam and another (2001 SCM R 798) wherein it has been laid down as under :-- "As regards time whether it was made at Deegarwela or in the evening, there may be a minor variation but the same could not be treated to be contradiction of each other. The witnesses were making statements after lapse of considerable period from the date of talb-e-muwathibat, therefore, they were not expected to remember each and every minor details as to time. These were natural variations which a human being in the ordinary course of business would certainly make which does not in any way detract from the veracity of their evidence."
8. Similar view is taken in case reported as Muhammad Tariq and 4 others v:. Asif Javed and another (2009 SCM R 240) wherein it has been held as under:-- "We have scrutinized the whole evidence and are of the view that the judgments of the two Courts below i,e, the Appellate Court and the Revisional Court are plainly correct on the point of Talbs as minor clerical omission in the statement of a witness whose statement is recorded after sufficient time, cannot mar the case of the plaintiff. Moreover, the law does not favour to throw away the pre-emptor just on technicalities."
9. The petitioner through co-gent and reliable evidence has proved performance of Talb-e- Muwathibat and the findings of the learned courts below on this issue suffer from material irregularities resulting in miscarriage of justice and where such findings are apparent on the face of record this Court has ample powers to reverse the concurrent findings of facts of the courts below. Reliance is placed on case reported as Shaukat Nawaz v. Mansab Dad and another (1988 SCM R 851).
10. Learned lower appellate court reversed the findings of the learned trial Court with regard to consideration amount of the suit-land and the respondent did not assail the same as such the said findings have attained finality. Furthermore, no arguments on this issue was advanced by the learned counsel for the parties therefore, findings of the learned lower appellate court on this issue are maintained.
11. For the reasons discussed above, this civil revision is accepted as a result whereof suit of the petitioner for possession through pre-emption is decreed subject to deposit of sale price of Rs,3,11,000 with the learned trial Court within one month from the date of receipt of certified copy of this order. If the petitioner has already deposited 1/3rd of the sale price then the same shall be deducted. In case the petitioner fails to deposit the sale consideration within the directed period, his suit shall be deemed as dismissed.