Pervaiz Akhtar , petitioner instituted a suit on 28.07.2010 for possession through exercise of right of pre-emption in respect of land measuring 330 kanals 09-marlas described in the first para of the plaint, which was tried by the learned Civil Judge, Pasrur . It was contended by the petitioner that the subject land has been purchased by the respondent through mutation No.191 dated 19.08.2004 for a sum of Rs.2,50,000/- but an ostensible sale price of Rs.4,00,000/- was reflected in the mutation proceedings.
2. It was contended in the plaint that the petitioner come to know about the said transaction on 06.09.2004 at 6.00 p.m through one Muhammad Rashid son of Barkat Ali (PW-2) in presence of Muhammad Irshad (PW-3) in his house and he is pronounced "Talb-i-Muwathibat" and thereafter sent notice dated 18.08.2006 under registered cover attested by the witnesses was also sent to the respondents, which was not replied by him and he claimed his superior right of pre-emption being Shafi-i-Sharik, Shafi-i Khaleet and Shafi-i-Jar .
3. The respondents resisted the suit through written statement, raising prelim inary objections, controverting the contents of the plaint and asserting that the petitioner did not make the requisite "Talbs" as required under the law. The learned trial court framed the following issues:-
1. Whether the plaintif f has superior right of preemption qua the defendants?OPD
2. The plaintif f has brought this suit after fulfilling demands as per law?OPP
3. Whether the suit is within time?OPP
4. Whether the suit land has been sold in consideration of Rs.2,50,000/- and ostensible sale price of Rs.4,00,000/- has been shown to defeat the right of pre-emption?OPP
5. Whether the plaintif f has no cause of action and locus standi to file this suit?OPD
6. Whether the plaintif f is estopped by his words and conduct to file this suit?OPD
7. Whether the suit land has been purch ased by the defendants in consideration of Rs.4,00,000/- and defendants have also borne expenditures Rs.50,000/- and whether they are entitled to recover the same from the plaintif f in case of decree of the suit?OPD
8. Whether issues No.4 and 7 are not proved in affirmative then what was the market value of the suit land at the time of sale?OPPs
9. Whether the defendants are entitled to special costs under section 35-A CPC to what extent?OPD
10. Relief.
4. The parties led their respective evidence. The learned Civil Judge dismissed the suit of the petitioner vide judgment dated 28.07.2010, while recording his findings to the effect that the petitioner failed to prove the making of "Talb-i- Muwathibat" and "Talb-i-Ishhad" in accordance with law although the learned Civil Judge held that the petitioner has proved his preferential right of pre-emption on the ground of being co-sharer in the joint property . The petitioner preferred an appeal against the judgment and decree dated 28.07.2010 of the learned Civil Judge, which appeal came up for hearing before the learned Additional District Judge, who also dismissed the same vide judgment and decree dated 08.02.2012 upholding the findings of the learned trial court recorded on the vital issue No.2 requiring proof of "Talb-i-Ishhad". This Civil revision is directed against the concurrent findings recorded by two courts below and the judgments passed against the petitioner . It is prayed by the learned counsel for the petitioner that the judgments and decrees passed by two courts below be set aside and the suit be decreed as prayed for .
5. Learned counsel for the petitioner argued that the impugned judgments of the learned courts below are based on misreading and non-reading of evidence; that both the judgments are not sustainable in eyes of law and has stated that although the petitioner has not pleaded in the plaint the date of "Talb-i-Ishhad" yet, he has so deposed in his statement, when he appeared as PW -1.
6. I have considered the arguments of the learned counsel for the petitioner and have perused the record with his assistance.
7. Although the petitioner has claimed making of "T alb-i-Muwathibat" in the plaint on 06.09.2004 and he issued notice of "Talb-i-Ishhad" on 07.09.2004. The petitioner/plaintif f has failed to mention the date of sending notice of "Talb-i-Ishhad" to the respondents. The petitioner while appearing in his evidence as PW-1 by improving his case states that he send notice of "Talb-i-Ishhad" on 07.09.2004.
Under the law notice of "Talb-i-Ishhad" is required to be made as soon as possible after "Talb-iMuwathibat" but not later than 14 days span. By not mentioning the date of performance of "Talb-iIshhad" in the plaint, same proved fatal for the petitioner in terms of section 13 of the Punjab Preemption Act, 1991.
13. Demand of Pre-emption.
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2. ...................
3. "Where a pre-emptor has made Talb-iMuwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confir ming his intention to exercise the right of pre-emption.
Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses"
4. ......................
It is held by August Supreme Court of Pakistan in the case of Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others ( PLD 2007 SC 302 ) "if there was no mention of date, place and time of Talb-i-Muwathibat, then it would be very difficult to give effect fully to Section 13(3) of the Punjab Pre-emption Act, 1991 and there could be every possibility that instead of allowing letter of law to remain in force fully, pre-emptor might attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same try to justify the delay if any, occurring in performance of Talb-i- Ishhad.. Performance of both Talbs successfully in sine qua non for getting a decree in pre-emption suit... Supreme Court approved the view that a plaint wherein date, place and time of Talb-i-Muwathibat and date of issuing notice of performance of Talb-i-Ishhad in terms of section 13 of Punjab Preemption Act, 1991 was not provided, it would be fatal for the pre- emptor suit"
The requirement of mentioning of all the details in the plaint is imperative so that the pre-emptor may not improve his case during the trial or to make a departure from his pleadings. It is settled law that a litigation has to first plead facts and pleas in the pleadings and then to prove those facts through evidence. A party is not allowed under the law to improve his case from what was originally set up in the pleadings. It is also settled law that a party is not allowe d to lead evidence in respect of a plea which was not taken in the pleadings and even if the evidence was led, the same could not be considered as evidence in case. Reliance is placed on the judgment of August Supreme Court of Pakistan in the case of Abdul Haque and others v.
Shaukat Ali and 2 others (2003 SCMR 74). It is settled law that the findings on question s of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities.
8. The concurrent findings of facts were recorded by both the courts below , which are based on proper appreciation of evidence, oral and documentary , lead by respective parties before the learned trial court. No case of misreading and non- reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel for the petitioner . The concurrent findings of both the courts below are normally not interfered by this court in revisional jurisdiction.
The scope of the revision is very limited. Reliance is placed on 2012 SCMR 730, 2012 SCMR 508, 2000 SCMR 346, 2000 SCMR 431 and PLD 2002 SC 293. For the reasons mentioned above, the insta nt revision petition is without merits and the same is hereby dismissed.