1. NASIRSAEEDSHEIKH,J.---Landmeasuring5kanals,1 marla situated in Khewat No.517 being its 128/2880 share in Eastern Village No.2 of Lawa, Tehsil Talagang, District Chakwal, was sold away in favour of Khan Muhammad and Riaz Muhammad both sons of Mian Muhammad for a sum of Rs.50,000/- through mutation No.4545 by the previous owners. The respondent Muhammad Azam son of Mehr Khan, Mehr Khan son of Muhammad Khan and Mumtaz Khan son of Sher Khan instituted a suit for possession through the exercise of right of pre-emption against Khan Muhammad and Riaz Muhammad the present petitioners of the instant civil revision after claiming to have performed the necessary Talb-i-Muwathibat and Talb-i-Ishhad. The ostensible sale price was also controverted in the plaint.
2. 2.The suit was contested by the defendants by submitting written statement and the learned Civil Judge framed the following issues:--- (1)Whether the ostensible sale price of Rs.50,000/- was fixed in good faith and was actually paid to the vendor and defendants incurred Rs.8000/- as incidental charges? OPD (2)Whether the plaintiffs are estopped to bring the present suit? OPD (3)Whether the plaintiffs have fulfilled the requirements of talbs in accordance with law? OPP (4)Whether the plaintiffs have superior right of pre-emption over the suit property? OPP (5)Relief.
3. 3.After production of respective evidence the learned Civil Judge vide judgment and decree dated 16-1-2003 decreed the suit upto the extent of 3/5th share of the suit-land in favour of the respondents/ plaintiffs directing the deposit of the amount of Rs.33,000/- after deducting the zar- e-soam i.e. Rs.16,667/- within one month of the judgment and decree failing which the suit was directed to be dismissed.
4. 4.An appeal was preferred by the petitioners Khan Muhammad, the L.Rs. of Mehr Khan who had died in the meanwhile and Mumtaz Khan son of Sher Khan which appeal came up for hearing before a learned Additional District Judge, Talagang. The learned first appellate Court vide judgment and decree dated 5-4-2004 dismissed the appeal of the petitioners.
5. 5.Through the instant civil revision the vendees Khan Muhammad and Riaz Muhammad have assailed the judgments and decrees passed by the two Courts below by contending that the judgments and decrees passed are not sustainable in the eye of law and the suit instituted by the rival pre--emptors be dismissed with costs throughout. The civil revision has been contested by the respondents rival pre-emptors.
6. 6.The learned counsel for the petitioners have raised a crucial point that not only Talb-i- Muwathibat has not been proved by both the pre-emptors/respondents on account of the contradictory stand taken with respect to the performance of the same, but specifically speaking the Talb-i-Ishhad has also not been proved by the rival pre-emptors in accordance with the settled law on the subject because the claim of the rival pre-emptors regarding the performance of Talb-i-Ishhad has been denied by the petitioners in the written statement submitted by them and the respondents/pie-emptors have failed to produce the postman through whom it was claimed that the notices of Talb-i-Ishhad were sent and later on served upon the petitioners. The learned counsel for the respondents in reply contended that before the learned Civil Judge the learned counsel representing the present petitioners did not contest the suit in his arguments and stated that the suit instituted by the respondents be decreed if the sale price is maintained and incidental charges are also admitted. According to the learned counsel that the prior right of pre- emption of the respondents was admitted and the suit was consented to be decreed as prayed for therefore there was no necessity of proving the Talbs by the respondents. The learned counsel representing the petitioners in reply relied upon a judgment passed by the honourable Supreme Court of Pakistan reported as "Allah Ditta and others v. Muhammad Anar (2013 SCM R 866) wherein the non-production of the postman for proving the Talb-i-Ishhad has been held fatal to the suit of pre-emption notwithstanding that any admission was made by attorney of the vendee to the effect that the notices of Talb-i-Ishhad have been sent and received, therefore it is argued that the suits of both the rival pre-emptors are liable to be dismissed.
7. 7.Arguments heard and record perused.
8. 8.The established position on the record is that the pre-emptors/ respondents in the respective paragraphs of their plaints claimed to have performed their Talb-i-Ishhad which facts have been denied by the present petitioners vendees in their written statements. Although the respondents have produced copies of the postal receipts and the acknowledgment postal cards as Exh.P-7 to Exh.P-10 but the production of the postal receipts Exh.P-7 and Exh.P-8 is not sufficient for the entitlement of the respondents to the decree of possession in the exercise of right of pre-emption as per the case-law reported as "Muhammad Bashir and others v. Abbas Ali Shah (2007 SCM R 1105) and "Bashir Ahmed v. Ghulam Rasool (2011 SCM R 762). The honourable Supreme Court of Pakistan in the above noted reported judgments have laid down the law that where a plaintiff of a pre-emption suit alleges performance of Talb-i-Ishhad in a paragraph of the plaint which fact and paragraph of the plaint is denied by the defendants vendees in the written statement then it is a legal obligation caste upon the plaintiffs of such a suit to produce the postman to prove the due performance of Talb-i-Ishhad and the failure of the plaintiff to produce the postman would result into the dismissal of the suit instituted. In the instant case the plaintiffs/respondents felt content themselves by producing the postal receipts Exh.P-7 and Exh.P-8 and the acknowledgment receipts Exh.P-9 and-Exh.P-10 which receipts Exh.P-9 and Exh.P-10 do not bear the signatures of the recipients Khan Muhammad and Riaz Muhammad but one Chanda Khan has been shown to be the recipient of the said notices.
9. 9.The respondent pre-emptor Muhammad Azam appeared as P.W.1 and he did not allege the receipt of the notices of Talb-i-Ishhad by the respondents in his examination-in-chief. Admittedly, the postman who allegedly served the notices of Talb-i-Ishhad Exh.P-1 and Exh.P-2 upon the present petitioners/defendants has not been produced. If one of theTalbsi.e.Talb-i- Ishhadisnotdulyproved ,thepre-emption suit instituted by the respondents cannot be lawfully decreed in their favour.
10. 10.The reliance of the learned counsel for the petitioners upon the judgment reported as "Allah Ditta and others v. Muhammad Anar" (2013 SCM R 866) is fully helpful to the arguments built up by the learned counsel for the petitioners who has argued that not only no statement of the learned counsel for the petitioners was recorded by the learned Civil Judge about the alleged admission stated in the judgment but notwithstanding the said concession allegedly granted by the learned counsel for the petitioners as noted above, the honourable Supreme Court of Pakistan had laid down the law as noted in the reported judgment that the respondents/plaintiffs have to produce the postman to prove the due performance of Talb-i-Ishhad. The respondents, therefore, did not fulfil this legal requirements as per the report judgment and case law cited as "Allah Ditta and others v. Muhammad Anar" 2013 SCM R 866) therefore they are not entitled to the passing of the judgment and decree in their favour. The two courts below acted illegally in passing the impugned judgments and decrees in favour of the respondents. The instant civil revision is accordingly accepted and the impugned judgments and decrees passed by the two Courts below in favour of the respondents are set side and the suit instituted by the respondents is dismissed. The parties are directed to bear their own costs.