' M. SOHAIL IQBAL BHATTI, J.---Through this civil revision the petitioner has challenged the judgment and decree dated 17-12-2004 passed by the learned Civil Judge Class-III, Chakwal and judgment and decree dated 16-2-2005 passed by the learned Addl. District Judge, Chakwal.
2. Brief facts giving rise to the filing of this revision petition are that the petitioner filed a suit for possession through Pre-emption regarding land measuring four kanals as described in the headnote of the plaint situated at Mauza Hattar Tehsil and District Chakwal. The suit had been filed against the defendant through his father being a minor. It was contended by the petitioner that one Zahid Jahan son of Ch. Jahan Khan sold the land mentioned above through Mutation No. 1884 dated 31-12-2001 and ostensible sale price of the suit property was Rs.1,20,000 which was excessive and was an attempt to defeat the right of pre-emption of the plaintiff. The plaintiff got knowledge of the said sale on 10-1-2002 at about 4-00 p.m. At his house situated in Mohallah Kot Sarfraz Khan, Chakwal through his son Qasim Ali and he suddenly announced his right to pre-empt the sale; that on 14-1-2002 he sent a notice of "Talb-i-Ishhad" through registered post A.D to the defendant and the plaintiff being co-sharer claimed his right of pre-emption through "Talb-i-Muwathibat". The defendant filed the written statement and upon the divergent pleadings of the parties following issues were framed:--
(1) Whether the plaintiff has any right of pre-emption qua the defendant? OPP.
(2) Whether the plaintiff has fulfilled the requirements of statutory demand? OPP.
(3) Whether Rs.1,20,000 were in fact fixed and paid as the consideration for impugned transaction?
OPD
(4) If the above issue is not decided in affirmative than what was market value of the suit-land at the time of its sale? OPPs.
(5) Whether the defendant is entitled to receive incidental charges in case the suit of the plaintiff is decreed? OPD
(6) Whether the suit is liable to be dismissed in view of preliminary objection No.1 of the written statement? OPD.
(7) Relief.
3. The learned trial Court framed issue No.2 regarding the fulfilment of statutory requirements of "Talbs" and the onus to prove this issue was upon the plaintiff. The plaintiff himself appeared as P.W.1 and reiterated the averments made in the plaint. Similarly, P.W.2 namely Ch. Qasim Ali submitted that he informed his father about the disputed sale on 10-1-2002 at about 4-00 p.m., who immediately made a jumping demand to pre-empt the said sale and on 14-1-2002 "Talb-i- Ishhad" was made. P.W.3 Zafar Ali Khan admitted his signatures on the Notice Exh.P.l but P.W.1 stated that he went to Katchehry for attestation of Notice in the morning of 10-1-2002 whereas P. W .1/plaintiff deposed that he came into the knowledge of the disputed sale at 4.00 p.m. On 10-1-2002, meaning thereby that the demand was not a jumping demand and there is a material contradiction in the statement of P.W.1 and the issue was decided against the plaintiff. The mention of other issues is not significant. Thereafter, an appeal was filed which was dismissed by the learned Addl. District Judge on the same ground that there was a material contradiction in the statement of P.W.I.
4. Learned counsel for the petitioner argued that the impugned judgments and decrees are result of misreading and non-reading of oral as well as documentary evidence. It was further argued that the findings on issues Nos.2, 3, 4 and 5 were against law; both the learned courts below failed to appreciate that minor discrepancies due to age and time factor should not become an impediment in administration of justice; that findings of both the learned courts below on issue No.2 regarding "Talb-i-Muwathibat" were erroneous and it was wrongly held that the petitioner had knowledge of sale prior to 10-1-2002. Upon this Court's query without adverting to the findings given by both the learned courts below regarding "Talb-i-Muwathibat", as to whether the postman regarding statutory "Talb-i-Ishhad" was examined as a witness by the petitioner. Learned counsel for the petitioner frankly conceded that postman was not examined by the petitioner.
5. Learned counsel for petitioner has relied upon the judgment reported in case titled Inayat v.
Nadar Khan (2007 SCM R 1702) wherein the concurrent findings of the learned courts below were set aside by the High Court on the ground that the preemptor stated in the plaint that he made "Talb- i-Muwathibat' at about 7-00 p.m. While in evidence this witness stated that it was "Maghrab Wela" when "Talb-iMuwathibat" was made by the pre-emptor. The Hon'ble Supreme Court observed that mere fact that in plaint instead of giving time of making "Talb-i-Muwathibat" (Mughrab Wela) it was mentioned 7.00 p.m., would not be sufficient to negate the claim of pre-emptor of making jumping demand. Prayed that this C.R. May be allowed.
6. On the other hand, learned counsel for the respondent has argued that no misreading or non- reading of evidence has been done by both the courts below. The findings given by both the courts below on issue No.2 should not be interfered as both the courts below have rightly observed that the appellant had not fulfilled the statutory requirement of "Talbs". Prayed that this civil revision may be dismissed.
7. I have considered the arguments advanced by the learned counsel for the parties and perused the record.
8. It is an established law that performance of "Talabs" is sine qua non for filing a suit for possession through preemption, as the right to pre-empt the sale is a feeble right and a delay of 1-1/2 hour in making "Talb-i-Muwathibat" had been held to be fatal by the superior Courts. There is material contradictions in the statement made by P.W.1. In his examination-in-chief he stated that he came to know about the disputed sale at 4-00 p.m. On 10-1-2002 whereas in his cross-examination he stated that he took Zafar P.W.3 in the morning of 10-1-2002 to "Katchehry" for attestation of "Notice" and the only inference which can be drawn is that the petitioner was in prior knowledge of the sale.
This contradiction in the statement of P.W.1 cannot be termed as variation. I am afraid there is a material contradiction in the statement of the petitioner as P.W.1. Moreover, it is an admitted fact that postman was not produced by the petitioner and in view of the law laid down in Allah Ditta through L.Rs. And others v. Muhammad Anar (2013 SCM R 866) the Hon'ble Supreme Court has held that even in case of admission of the attorney of the vendee it was obligatory on the pre-emptor to have proved the sending of Notice by leading affirmative evidence which undoubtedly requires the production and examination of the postman. The petitioner/plaintiff has miserably failed to prove the statutory demands of "Talb-iMuwathibat" and "Talb-i-Ishhad" to preempt the sale.
9. For what has been discussed above I do not find it apt to interfere in revisional jurisdiction in the judgments passed by both the courts below. The revision petition is dismissed.