1. ABDUL LATIF KHAN, J.--- Through single judgment, I propose to dispose of Civil Revision No.398 of 2010 and Civil Revision No.402 of 2010 as both the revision petitions are the outcome of one and the same judgment and decree dated 7-10-2010 passed by learned Additional District Judge-VI, D.I.
2. Khan.
3. 2.Precise facts giving rise to the instant revision petitions are that Sanaullah Khan, respondent/plaintiff, filed a suit against Haq Nawaz, petitioner/defendant, for possession through pre-emption in respect of land measuring 8 kanals, 15 marlas situated in Mouza Nadar Badar, Tehsil Kulachi, District D.I. Khan, purchased by the petitioner/defendant through Mutation No.1019 attested on 9-1-2009.
4. 3.The suit was contested by the petitioner/defendant by submitting his written statement. The learned trial Court framed issues arising out of the pleadings of the parties. The parties produced their respective evidence which they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge, Kulachi dismissed the suit of the respondent/plaintiff vide judgment and decree dated 16-1-2010.
5. 4.Aggrieved of the judgment and decree dated 16-1-2010, the respondent/plaintiff filed an appeal which was accepted by learned Additional District Judge-VI, D.I. Khan on 7-10-2010, the judgment and decree dated 16-1-2010 was set aside and suit of the respondent/plaintiff was decreed with some modification in the judgment of trial Court regarding market value of the suit-land, hence, the instant revision petitions.
6. 5.Learned counsel for the petitioner contended that suit of the respondent/plaintiff was dismissed by the trial Court on the ground of non-performance of Talbs in accordance with law which was appealed against and vide impugned judgment, the learned appellate Court has wrongly accepted the appeal of the respondent/plaintiff, thereby decreeing his suit which is against the established principles of law. He further contended that the respondent/plaintiff failed to perform the Talbs in accordance with law and the findings arrived at by the appellate Court are the result of misreading and non-reading of evidence.
7. 6.As against that, the learned counsel for the respondent/plaintiff contended that the appellate Court has rightly decreed the suit of the respondent/plaintiff, however, to the extent of sale price, the respondent/plaintiff has reservations with regard to the impugned judgment and to this effect, a separate Civil Revision No.402 of 2010 has been filed, wherein the prayer for reversal of the impugned judgment to the extent of value/sale price of the suit-land has been questioned while the rest of the judgment has been vehemently supported by the respondent/plaintiff.
8. 7.I have given my anxious thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
9. 8.The respondent/plaintiff has averred in his plaint that he acquired knowledge of sale on 19-4- 2009 at 10 a.m. on Sunday, in his 'Hujra' through Eidu son of Shehzad and on acquiring knowledge, there and then announced his intention to pre-empt the sale. He appeared before the Court as P.W.-5. The perusal of his statement reveals that he has neither given the place nor time but only the date i.e. '19' is mentioned and that too without month and year, so, the date is also lacking, as mere '19' would not amount to a date without mentioning the month and year and as such, none of the ingredients i.e. date, time and place has been mentioned in the statement which gives an impression that the respondent/plaintiff has failed to reinstate the stance taken by him in his plaint. The plaintiff is retired Tehsildar and is acquainted with the matters relating to the proceedings before the Court. He has tried to explain and has succeeded to mention the date during cross-examination but even then, time and place is missing in the statement. The informer has been examined as P.W.-6, who has given the details with regard to date, time and place, but would be of no avail to the respondent/plaintiff as he himself failed to fortify the stance taken by him in his plaint.
10. 9.It is by now established that the plaintiff, in order to succeed in the case of possession through pre-emption, has to prove in unequivocal manner, the performance of Talbs in proper order. On acquiring of knowledge, the plaintiff has to prove the performance of Talb-e-Muwathibat which, though alleged in the plaint, has not been proved in the instant case. In this respect, reliance placed on the case of Amir Muhammad through legal heirs and 7 others v. Muhammad Ashraf (PLD 2011 Peshawar 116) wherein his Lordship has observed that the non-disclosure of date, time and place by the plaintiff in evidence would make the Talbs defective and would amount to non- performance of Talbs resulting into dismissal of suit.
11. In the case of Fazal-ur-Rehman v. Khurshid Ali and another (2012 SCMR 635), the august Supreme Court of Pakistan observed that the plaintiff/pre-emptor has to appear in the witness-box in support of a plea raised in the plaint of his own or in case of any disability, through attorney, to mention date, time and place in the evidence. The failure of plaintiff would amount to non- compliance of provisions of section 13(3) of the N.-W.F.P. Pre-emption Act, 1987.
12. In the case of Munawar Hussain and others v. Afaq Ahmad (2013 SCMR 721), the honourable Supreme Court observed that plaintiff (pre-emptor) while appearing as witness failed to mention date, time and year of performance of Talb-e-Muwathibat which was fatal for a suit for pre- emption. The relevant portion of the judgment is reproduced as under:--- "The omission to mention the material particulars of performance of Talb-e-Muwathibat, referred to in the preceding paragraph, adversely reflects on the credibility of the performance and is fatal in a suit for pre-emption. In decreeing the suit both the Courts below, we may observe with respect, have misread and non-read material evidence on record and have also not appreciated the mandate of the law laid down by this Court. In Pir Muhammad v.Faqir Muhammad (PLD 2007 SC 302), this Court laid down that the omission to mention the material particulars is sufficient to non- suit the pre-emptor. At page 308, it was held as follows:--- "Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-e-Muwathibat and date of issuing the notice of performance of Talb-e- Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit."
13. 10.In pre-emption cases, plaint containing the plea of superior right and performance of Talbs would be of no effect, if the same was not proved through evidence. Non-appearance of the plaintiff or non-disclosure of facts by the plaintiff despite appearance in support of the plea would affect the case of plaintiff, as mere averment in pleadings, would carry no weight unless proved through cogent evidence. Pleadings being neither substitute of evidence nor substantive evidence would carry noweight unlessadmittedbytheotherpartyorprovedthrough cogent evidence. Reliance can be placed on the case of Hakim-ud-Din through L.Rs and others v. Faiz Bakhsh and others (2007 SCMR 870) wherein their Lordships of the apex Court observed in the following words:--- "We have considered the submissions made by the learned counsel for the parties and perused the record. It is an admitted fact that respondent did not appear before the trial Court to prove the contents of the plaint. It is a settled law that pleadings of the parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in Court or admitted by the other party. The respondent No.1 failed to prove the factum of his superior right of pre-emption, therefore, trial Court as well as learned High Court had erred in law to decree the suit of the respondent. It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim. See Muhammad Sajjad Hussain's case 1991 SCMR 708 and Muhammad Siddique's case 2001 SCMR 1443. It is a settled law that written statement/plaint is not substitute of evidence. The aforesaid principles are supported by the following judgments:-
(i) Mst. Khair-un-Nisa's case PLD 1972 SC 25, (ii) Mst. Zarina's case PLD 1995 Kar. 388, (iii) Noor Muhammad's case PLD 1989 Lah. 31, (iv) Mst. Sakina's case 1986 CLC 288, (v) Falak Sher's case 1992 MLD 1879, (vi) Nizam-ud-Din's case 1991 CLC 1937 and (vii) Faqir Muhammad's case PLD 2003 SC 594."
14. 11.The learned trial Court has rightly non-suited the plaintiff, as no evidence has been produced by him to fortify the averments made in the plaint with special reference to date, time and place of Talb-e-Muwathibat. The learned appellate Court has, however, ignored vital aspect of the case with special reference to the statement of plaintiff who failed to disclose the date, time and place in his plaint and as such the contents of plaint to this extent remained unproved, disentitling the plaintiff for decree of pre-emption.
15. 12.For the foregoing reasons, I accept Civil Revision No.398 of 2010, set aside the impugned judgment and decree dated 7-10-2010 passed by the learned Additional District Judge-VI, D.I. Khan and restore the judgment and decree of the trial Court dated 16-1-2010, dismissing the suit of the respondent/plaintiff.
16. 13.As the suit of the respondent/plaintiff has dismissed, therefore, the connected Civil Revision No.402 of 2010 has become infructuous and is dismissed accordingly.