' AMIN-UD-DIN KHAN, J----Through this Regular Second Appeal, the appellants have assailed the judgment and decree dated 6-1-2010 rendered by the learned Additional District Judge, Sialkot whereby an appeal filed by the appellants was dismissed and judgment and decree dated 17-4- 2009 handed down by the learned Civil Judge, Sialkot through which a suit filed by the respondent- plaintiff for possession through pre-emption was decreed.
2. Briefly, the facts of the case are that Muhammad Anwar respondent filed a suit on 28-3-1995 to pre-empt the sale in favour of the defendants-appellants through registered sale-deed attested on 30-11-1994. Plaintiff-respondent claimed that he came to know about the sale of the shop in question adjacent to his shop on 3-12-1994, he announced his intention to pre-empt the sale and then sent a notice through registered A.D. And on the refusal of the vendees, filed a suit for possession through preemption. Written statement was filed, suit was contested. The learned trial Court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. The learned trial Court vide judgment and decree dated 17-4-2009 decreed the suit. Feeling aggrieved by the said judgment and decree an appeal was preferred by the appellants, which was also dismissed by the learned Additional District Judge, Sialkot vide judgment and decree dated 6-1-2010, hence, this RSA before this Court.
3. Learned counsel for the appellants has referred para No, 3 of the plaint as well as Exh.P.3 wherein there is no mention of the informer about the sale in question. It is further contended that without mentioning the name of the informer, the plaintiffs cannot prove the jumping demand as required under section 13 of the Punjab Pre-emption Act, 1991. It is next contended that first time name of the informer was introduced when the plaintiff-respondent appear as his own witness as P.W.5 on 22- 12-1996, this very ground was sufficient to non-suit the plaintiff-respondent; that admittedly shop in question was adjacent to the shop owned by the plaintiff-respondent and when witnesses of the defendants stated that from the day of sale, the sale in question was in the knowledge of the plaintiff-respondent and this portion of the statements of the witnesses was not challenged during the cross-examination, therefore, under the law this portion of the statements will be presumed to have been admitted by the plaintiff-respondent. It is further contended that the plaintiff- respondent while appearing as P.W.5 has admitted during the cross-exarhination that case of the plaintiff is that shop in question was sold on 3-12-1994 and on the same day he came to know about the sale. Learned counsel has relied upon 2012 SCM R 911 and 2009 SCM R 488, to contend that without mentioning the name of informer in, the plaint and notice of Talb-e-Ishhad, requirement of section 13 of the Preemption Act, 1991 was not fulfilled.
4. On the other hand, learned counsel for the respondent-plaintiff has vehemently opposed this appeal on the ground that the learned trial court has rightly decreed the suit of the plaintiff which has been upheld by the learned 1st Appellate Court as such there are concurrent findings of fact of both the courts below which are not liable to be interfered with by this Court as this Court can only see the illegality or irregularity in the impugned judgments and decrees which is lacking in this case, hence, the appeal may be dismissed. Reliance has been placed on PLD 2007 Supreme Court 302 (Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs, and others).
5. I have heard the learned counsel for the parties and also gone through the record with due care and caution.
6. In this appeal, the basic question determinable by this Court is that whether the mentioning of source and name of the informer was necessary in the plaint and notice of Talb-e-Ishhad by the plaintiffpespondent. Learned counsel for the respondent-plaintiff while referring PLD 2007 Supreme Court 302 (Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs, and others), has argued that name of witness is not necessary as five Members Bench of the August Supreme Court of Pakistan has resolved this controversy that names of the witnesses need not to be mentioned in the plaint and in the notice as it is part of evidence and evidence is not required under Order VI Rule 5 of C.P.C. In the pleadings. But the mentioning of source of information of sale is another thing. The witnesses are the persons who testify or witness of gaining knowledge of the sale by the plaintiff/pre-emptor and the witnesses of jumping demand of the plaintiff but informer is not the only witness to the jumping demand but also a source to inform the plaintiff about the impugned sale, therefore, in my view mentioning of source of knowledge is necessary in the plaint.
7. To prove the jumping demand if source of knowledge or person informing is not mentioned in the plaint, the plaintiff cannot prove this fact subsequently by producing evidence as the fact of source of knowledge is not mentioned in the plaint, therefore, mentioning of fact of source of knowledge is necessary in the plaint, therefore, in the case in hand mentioning the name of the informer in the plaint was necessary. Even otherwise, when the portion of the statements of the witnesses of the defendant-appellants that the sale was in the knowledge from the day of the sale and the portion of their statements to this extent was not cross-examined, under the law it is presumed that the plaintiff has admitted this portion of their statements and furthermore, when the plaintiff got recorded his own statement as PW-5 and his case is that on 3-12-1994 at 12-00 p.m. (noon), he learnt about the impugned sale at his shop and he then and there announced to exercise his right of pre-emption. The other strong admission that brother of the plaintiff was tenant on this shop and litigation of eviction even went up to High Court and his brother Ihsan was evicted by the executing court.
' So far the informer Abdul Jabbar, introduced by PW-5 appeared as his witness as P.W.6, who in his statement has not mentioned the time of information of sale given to the plaintiff and with regard to the jumping demand, statement of the plaintiff is not in corroboration with his statement. There is no other evidence to prove the jumping demand on 3-12-1994 at 12-00 p.m. As P.W.6 Abdul Jabbar has not stated the time of information as well as other witness P.W.7 is even not witness of Talbe-Muwathibat, i.e, jumping demand. Therefore, the plaintiff has not proved the jumping demand in accordance with law.
8. In this view of the matter, I am clear in my mind that plaintiff-respondent failed to establish the performance of Talbs in accordance with law, therefore, he was not entitled to the judgment and decrees passed by the courts below which are otherwise clearly in violation of the judgments of the august Supreme Court of Pakistan, therefore, both the judgments and decrees being against the law are set aside and the suit stands dismissed with no order as to costs. This RSA is allowed.
Second .