' AMIN-UD-DIN KHAN, J.---Through this appeal, the appellants have challenged the judgment and decree passed by the learned District Judge Bahawalpur on 23-6-2007, whereby the appeal filed by the appellants was dismissed against the judgment and decree passed by the learned Civil Judge Ahmadpur East, dated 26-11-2005 whereby a suit filed by respondent/plaintiff was decreed.
2. The brief facts of the case are that the appellants purchased 60 kanals and 1-1/2 marlas of land in village Jindoo Chaner from Mst. Manzoor Mai through Mutation No, 326 sanctioned on 20-9-1999.
After framing of issues the learned trial Court recorded evidence produced by both the parties and decreed the suit in favour of the respondent/plaintiff, whereas, the .Appeal filed by the appellants was dismissed. The consideration of sale was disputed in the plaint but afterwards the amount mentioned in the impugned mutation was admitted by the plaintiff/respondent. Issues Nos.3 and 4 are material issues which are with regard to right of pre-emption and fulfilment of requirement of talbs. In plaint the plaintiff has asserted all the three rights available to a person in accordance with section 6 of the Punjab Pre-emption Act, 1991.
3. First of all I would like to take issue No,3. The learned trial court recorded the finding on this issue in favour of the plaintiff/respondent, finding that the plaintiff has superior rights as Shafi Khalit and Shafi Jar. The basis of these finding were that the property of the plaintiff is adjacent to the suit property and both the properties are irrigated from one watercourse. In. Warabandi Exh.P-17 the land of the plaintiff is at Serial No,24 whereas the suit land is at Serial No,27. While the learned first appellate court recorded the finding on this issue and found that this watercourse is in between both, the suit land and the land owned by the plaintiff, therefore, these lands are not contiguous to each other but on the basis of irrigation from one watercourse the learned first appellate court has recorded finding on this issue in favour of the plaintiff/respondent as he being Shafi Khalit. This appeal has been filed by the vendees/defendants. The plaintiff/ respondent had not challenged the finding recorded by the first appellate court, therefore, now with regard to the right of pre- emption, the finding in favour of the plaintiff-respondent is that on the basis of watercourse in between the land of the plaintiff and the suit land he has been declared Shafi Khalit.
4. Learned counsel for the appellants states that it was the duty of the plaintiff to prove that it is a private Khal and not an official KHAL. Whereas in the documentary evidence produced by the plaintiff himself in the shape of Exh.P-17 which is Warabandi, admittedly the plaintiffs' land is at Serial No, 24 and suit land at Serial No,
27. Further that Ex.P-18 which is part of plan showing outlet R.D. 71500-R of 6-L/A.P.. Branch is sufficient to show that the Khal is not a private Khal. Reliance has been place upon Muhammad Nawaz and others v. Gul Sher through Legal Representatives, <>/u (PLD 2004 SC 493) wherein the Hon'ble Supreme Court has held as under:-- "Pre-emptor and vendee independently receiving water from Government canal as of right could not claim superior right against the other---Right of pre-emption under doctrine of "Shafi Khalit" would not extend, if both lands were being irrigated from a common channel---Right to discharge water from one land over another was altogether different and distinct from receiving water from a common channel."
' Whereas the witnesses of the plaintiff admitted that the land of the plaintiff and also the suit land are being irrigated from the same khal as mentioned at warabandi.
5. On issue No,4 the learned counsel for the appellants has stated that in plaint the making of Talb- e-Muwasibat and Talb-e-Ishhad had not been reiterated. Further that the witnesses are controversial witnesses, to say that to each vendee a separate notice was written. This actually proves that it was a single notice which was written, however its photo copies Exh. P-5 to Exh.P-8 are on the record. Further submitted that the statement of P. W.1 Shamshad Ali, postman and report on alleged registered envelopes are Exh.P-1 to Exh.P4. It is clear that no attempt was made to deliver the alleged notices. Further that no acknowledgment due had been produced when the alleged registered notices were returned to plaintiff and plaintiff has produced the original envelopes in the court Exh.P-1 to Exh.P-4. There are no acknowledgments due attached with these notices. While placing reliance upon the judgment of the august Supreme Court of Pakistan reported as Muhammad Bashir and others v. Abbas Ali Shah (2007 SCM R 1105), wherein the honble Supreme Court has held as under:-- ' Section 13(1(b)---Talb-e-Ishhad---Sending notice in writing under registered cover acknowledgment due---Object--Requirement of "sending a notice in writing" is followed by a rider i,e, "under registered cover acknowledgment due", which signifies that intention of law is not merely a formal notice on the part of pre-emptor conveying his intention to pre-empt but a notice served on addressee to apprise him about his intention to pre-empt---If mere "sending of notice" was enough, it would make the expression "acknowledgement due" redundant---Service of addressee, as prescribed in law, therefore, is imperative---If acknowledgement card carries an endorsement of "refusal" or not accepted" a presumption of service would arise unless rebutted."
' The learned counsel has contended that the statements of these witnesses are contradictory with each other.
6. Lastly the learned counsel for the appellants submitted that during pendency of first appeal before the first appellate Court, without the process and execution through the trial court, the respondent/plaintiff forcibly has taken possession of the suit and from the appellants for which he has prayed that this court may order for repossession of the suit land.
7. Taking possession of suit land by the respondent/plaintiff is not denied by the counsel. It is also not denied that the contempt application filed before the learned first appellate court is pending. I, would not like to order for repossession while deciding this R.S.A. Because remedy under section 144, C.P.C. Is available with the appellants to move the learned trial Court.
8. The learned counsel for the respondent has mainly contended that at this second appellate stage this Court cannot go into the factual inquiry. He has contended that it was the duty of the vendees/defendants to prove the question that it was an official Khal and not a private khal but they failed to prove it to be an official Khal. He further stated that the warabandi does not prove this Khal to be an official Khal. Learned counsel for the respondent has supported the finding recorded by the learned courts below.
9. I have heard the learned counsel for the parties at full length and have also gone through the record with their able assistance.
10. The findings of the learned first appellate court and the version of the respondent/plaintiff is that it is the duty of the defendants/vendees to prove that the Khal was not a private Khal and was an official Khal. I am afraid that this interpretation is contrary to law because it is the plaintiff who has to prove the right of pre-emption, therefore, he was bound to prove without any shadow of doubt that his right of preemption qua the suit property. The documents produced by the plaintiff himself in the shape of Exh.P-17 and Exh.P-18 show that both the lands are irrigated from one outlet which is No,715000 R-6-L/ AP Branch. This is a government watercourse and that the watercourse and its water belong to government. Reliance in this regard can safely be placed upon the judgment of the august Supreme Court of Pakistan reported as Muhammad Nawaz and others v. Gul Sher through Legal Representatives (PLD 2004 SC 493), wherein it is held that plaintiff has failed to prove his right of Shafi Khalit. As mere having right of irrigation from a Khal cannot confer upon the pre- emptive right of Shafi Khalit. Only the preemptor can successfully show that those rights were attached to immovable property and that he had the right of participation in those rights. In case in hand when there is a government watercourse, this right is not available to the plaintiff/respondent, therefore, the findings recorded by both the courts below are reversed and it is held that the plaintiff/respondent failed to prove his right of pre-emption for the suit land.
11. So far as the talbs are concerned, the most of the contentions of the learned counsel for the appellant relate to interpretation or reevaluation of the evidence from the file which is not required by law while exercising jurisdiction under section 100 of C.P.C., but so far as the contention of the learned counsel with regard to proving the refusal or acceptance of registered notice sent through acknowledgment due is concerned, as per contention of the plaintiff/respondent he has sent notices of talb Ishhad in compliance of section 13 of the Punjab Preemption Act, 1991 through registered envelope and acknowledgement due which were received back un-served. The plaintiff has produced the original envelopes as Exh. P-1 to Exh.P-4. Admittedly there are no acknowledgments due/receipts with these envelopes nor the same have been produced in the court. As the original record is available before the Court. I have seen that no such acknowledgment receipts are available on the record. The plaintiff has produced postman as P. W,1 he had not stated that defendants/vendees have refused to receive the registered letters. Even his,noting on Exh.P-1 to Exh.P-4 does not show that he has tried to deliver these letters to the addressees. In this view of the matter, the plaintiff/ respondent has not fulfilled the requirement of section 13 of the Punjab Pre-emption Act. The light can be taken from the judgment of the Hon'ble Supreme Court of Pakistan reported as 2011 SCMR 672 and 2007 SCMR 1150 referred to above. In this view of the matter, the findings on issue No,4 are reversed.
12. In the light of what has been discussed above, I accept this appeal, set aside the judgments and decrees passed by both the courts below and dismiss the suit filed by the respondent/plaintiff.
13. Before parting with this judgment I would like to order that as the decretal amount is lying with the learned trial Court which has been invested in profit bearing scheme under the orders of the court, therefore, as the plaintiff/respondent has enjoyed the possession of the suit land, therefore, he will not be entitled to withdraw this amount of profit from the trial Court it will be given to vendees/defendants. Further till the return of possession to the appellants he will not withdraw this decretal amount from the trial court.