' CH. MUHAMMAD MASOOD JAHANGIR, J.---Brief facts for disposal of the instant Civil Revision are that Karam Elahi, the predecessor-in-interest of petitioners No,1-A to 1-C and respondent No,4, pre- empted a sale reflected in Mutation No,5118 dated 18-5-2009 by filing a suit for possession through preemption against the respondents/defendants before the learned trial Court regarding the disputed property, fully mentioned in para-1 of the plaint with the assertions that the disputed sale was kept secret and no notice was published about the attestation of disputed mutation as per law. He pleaded that he was sitting in house on 27-7-2009 at 8.00 p.m. When Ali Akbar son of Farzand Ali, the informer, told about the disputed sale. He then and there performed the requisite Talb-e-Muwathibat and thereafter dispatched the notices Talb-e-Ishhad through registered post A.D. To the respondents/defendants on 5-8-2009, but they did not reply the same. The said suit was pending before the learned trial when Karam Elahi the original pre-emptor/ plaintiff died prior to recording of evidence and the present petitioners No,1-A to 1-C and respondent No,4 filed amended plaint before the learned trial Court by impleading themselves as plaintiffs. While filing the amended plaint the present petitioners (1-A to 1-C) and respondent No,4 did not make any amendment in para-3 of the plaint wherein the alleged story regarding the performance of Talbs alleged to have been made by Karam Elahi, the original preemptor was pleaded. The said suit was resisted by the respondents/ defendants with the assertions that the petitioners/plaintiffs did not perform the requisite Talbs as per law. The learned trial Court from the pleadings of the parties, framed the following issues:-
(1) Whether the plaintiff has got superior right of pre-emption qua the defendant? OPP
(2) Whether the plaintiff has performed talbs according to the law? OPP
(3) Whether the plaintiff is entitled to a decree for possession through preemption on the averments as mentioned in the plaint? OPP
(4) Whether the instant suit is not proceedable in its present form? OPD
(5) Whether the plaintiff has not come to the court with clean hands? OPD
(6) Whether the suit has been filed just to harass and blackmail the defendants? OPD (7-A) Whether suit property was sold and purchased for Rs, 1,70,000 and Rs,5,00,000 were ostensibly mentioned in impugned mutation just to defeat the right of preemption, if so, what is market value of suit property? 0. P. Parties.
(8) Relief.
2. The learned trial Court after recording the evidence of both the parties dismissed the suit of the petitioners/ plaintiffs vide judgment and decree dated 10-4-2012. The petitioners/plaintiffs filed an appeal against the said judgment and decree before the learned lower appellate court which has also been dismissed vide judgment and decree dated 19-7-2012, hence, the instant civil revision.
3. Before opening the arguments, learned counsel for the petitioners made a request that Amanat Ali was also the legal heir of original deceased pre-emptor who inadvertently could not be impleaded as party in the array of respondents as he refused to file the instant revision petition along with the petitioners, so the petitioners may be allowed to implead him as respondent. The request was not opposed by the learned counsel for the respondents, therefore, learned counsel for petitioners has been allowed to add said Amanat Ali as respondent and the learned counsel for the petitioners added him as respondent No,4 in the memo of parties.
4. The learned counsel for the petitioners has argued that the impugned judgments and decrees of both the courts below suffer from serious misreading and non-reading of evidence; that it was not necessary to mention the names of the witnesses in the plaint; that the petitioners/ plaintiffs were non-suited only on the ground that Amanat Ali P.W. Was nowhere mentioned in the body of the plaint; that the petitioners/plaintiffs produced qualitative and quantitative evidence to prove the requisite Talbs; that the Courts below wrongly observed that P.W.3 made a false statement and that both the courts below have non-suited the petitioners/ plaintiffs on the basis of minor contradictions occurred in the statements of the petitioners/ plaintiffs, which were natural being lapses of time. He has lastly prayed for the acceptance of the instant civil revision, setting aside of the impugned judgments and decrees passed by the two courts below and that the suit filed by the petitioners/ plaintiffs be decreed. Learned counsel for the petitioners/plaintiffs has relied upon the judgments reported as "Mian PIR MUHAMMAD and another v. FAQIR MUHAMMAD through L.Rs, and others (PLD 2007 Supreme Court 302).
5. Conversely, the learned counsel for the respondents/plaintiffs has supported the impugned judgments and decrees passed by the two courts below and also argued that P.W.3 set up a different story about performance of requisite Talbs in his statement which was beyond the pleadings in the plaint and such piece of evidence can neither be considered nor can be relied upon. He has lastly prayed for dismissal of the instant civil revision.
6. I have heard the arguments of the learned counsel for the parties and also perused the entire record with their able assistance.
7. Both the courts below have non-suited the petitioners/plaintiffs on the basis of their findings rendered on issue No,2 and observed that petitioners/plaintiffs failed to prove performance of the Talbs as per law. The petitioners/plaintiffs to discharge the onus of issue No,2 produced Ali Akbar, the alleged informer as P.W.4 who narrated different story as pleaded in para-3 of the plaint. He deposed in examination-in-chief that on 27-7-2009 at 8.00 P.M. He had informed Karam Elahi and Amanat Ali regarding the disputed sale. The same version was narrated by Amanat Ali, plaintiff No,1-B/respondent No,4 when he appeared before the learned trial Court as P.W.3. The perusal of para-3 of the plaint reveals that the presence of Amanat Ali has not been shown therein. Both P.W.3 and P.W.4 tried to improve the case against the version which was narrated in the plaint. The learned counsel for the respondents has rightly placed reliance on the case-law reported as "Muhammad Wali Khan and another v. Gul Sarwar Khan and another" (PLD 2010 SC 965), wherein, it has been observed that no person can be allowed to prove his case beyond the scope of his pleadings. The learned counsel for the respondents/defendants has further relied upon the case- law reported as "Muzaffar Hussain v. Mst. Bivi and 7 others" (PLD 2012 Lahore 12), wherein the original pre-emptor/plaintiff expired during the pendency of the suit, whose L.Rs, were impleaded as plaintiffs and one of them while appearing as P.W. Made a statement about performance of Talbs showing himself to be present with his father when alleged informer told the deceased preemptor regarding the sale transaction. Admittedly, his name was not mentioned in the plaint, who introduced himself to be present at a later stage and the august Supreme Court of Pakistan held that the statement of the son of deceased pre-emptor has no evidentiary value. Likewise, in the present case, a perusal of the evidence of Liaqat Ali the son of the deceased preemptor (P.W.3) in court reveals that he was present along with his father at the time of performance of Talb-e- Muwathibat whereas the plaint does not find mention that he was also present at the time of performance of Talb-e-Muwathibat by his deceased father Karam Elahi, who originally filed the suit. Thus I have no hesitation in observing that version set up by P.W.3 being against the pleadings of the plaint cannot be considered as it has been held in "MUHAMMAD WALI KHAN's case" that no person can be allowed to prove his case beyond the scope of his pleadings. The said statement of the son was not plausible as it was beyond the pleadings and was inadmissible.
8. The plaintiffs also produced in evidence the copies of notices Talb-eIshhad on the file as Exh.P-5 to Exh.P-7. A perusal thereof reveals that P.W.3 was not signatory of the said notices. The said fact also nullifies the stance as improved by the said P.Ws. That Amanat Ali was present at the time of performance of demands. If he was present at that occasion then his name should also have been reflected in the said notice Talb-e-Ishhad as well as a witness thereof. If it is presumed that Amant Ali P.W.3/son of the original pre-emptor was also present at the time of performance of Talb-e- Muwathibat, then his statement on behalf of other three L.Rs, of Karam Elahi (deceased) cannot be considered as they neither appeared before the learned trial Court to prove the performance of requisite Talbs nor were shown to be present at the time of performance of requisite Talbs, so, B the non-appearance of the other plaintiffs before the learned trial Court in a suit for pre-emption is also fatal to the extent of performance of Talbs and the suit of preemption cannot succeed.
Reliance is placed upon the case-law reported as "HUMAYUN NASEER CHEEMA and 3 others v.
MUHAMMAD SAEED AKHTAR and others (2007 CLC 819), wherein it has been held as under:-- "6. Applying the above rule to this case, P. W.10 Babar Naseer Cheema, who though is a co-plaintiff in the matter, but it is not established that he has filed the suit on behalf of the other plaintiffs, as an attorney or has made the Talbs on behalf of his brothers as a previously authorized agent.
While appearing as P. W.10, it is not even stated by him.
' In the light of the above, I am constrained to hold that due to their non-appearance, the three plaintiffs have failed to discharge the onus, if they have made Talb-iMuwathibat, the statements of P.W.4 and P.W.10 can only be used as a corroborative piece of evidence, but where the foundational evidence has not been led by them, the corroborative evidence has no much value."
9. It is pertinent to note that Amanat Ali (P.W.3) who is one of the legal heir of Karam Elahi the original pre-emptor along with the petitioners has not assailed the judgment and decree passed by the learned trial Court by filing an appeal before the learned lower appellate court, who even has not assailed the impugned judgment passed by the learned Addl. District Judge before this Court and only the petitioners/other legal heirs have challenged the impugned judgments and decrees who did not appear as witnesses before the learned trial Court to prove the performance of Talbs. The case law cited by learned counsel for the petitioners is not helpful to them.
10. Even otherwise during the pendency of the instant civil revision, the petitioners/plaintiffs Nos.1-A to 1-C filed C.M.No,2-C/2013 under Order VI, Rule 17 C.P.C. For the amendment of the plaint filed by the L.Rs, of Karam Elahi (deceased) before this court with the assertion that in para-3 of the amended plaint filed by them before the learned trial Court they inadvertently could not mention the name and presence of Amanat Ali, whereas he was present at the time of performance of Talb-e-Muwathibat and Talb-e-Ishhad, but inadvertantly, Karam Elahi pre-emptor could not mention his name. The said request of the petitioners was turned down by this Court while dismissing the said C.M. Vide order dated 31-5-2013. So after the dismissal of their application for amendment of plaint, there is left no case with the petitioners and the evidence led by them was clearly out of the scope of their pleadings which has rightly been ignored by the courts below, while observing that the petitioners/plaintiffs tried to improve their case beyond the scope of their pleadings and dismissed the suit as well as the appeal filed by the petitioners/plaintiffs while rendering sound reasons. The learned counsel for the petitioners/plaintiffs has remained unable to point out any misreading or non-reading of evidence by the two courts below.
11. Consequently, the instant civil revision having no force and substance is dismissed.