' AMIN-UD-DIN KHAN, J.---Through this Civil Revision petitioner has challenged the judgment and decree dated 19-7-2004 passed by learned Additional District Judge, Talagang whereby appeal filed by the petitioner was dismissed and the judgment and decree dated 21-1-2004 passed by learned Civil Judge, Talagang whereby suit for pre-emption filed by the plaintiff-petitioner was dismissed.
2. Brief facts of the case are that plaintiff-petitioner on 17-2-1999 filed a suit to pre-empt the sale of land through oral Mutation No.691 attested on 29-1-1999. Written statement was filed. Suit was contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After closing of trial vide judgment and decree dated 21-1-2004 learned trial Court dismissed the suit observing that plaintiff failed to prove performance of Talbs in accordance with law as well. As to prove superior right of pre-emption qua the defendant. Plaintiff-petitioner being aggrieved by the judgment and decree passed by learned trial Court preferred an appeal and the learned first appellate court though on Issue No. 5, which is with regard to fulfilment of Talbs, reversed the findings of the learned trial Court, but holding that plaintiff is not having the superior right of pre- emption, 'therefore, dismissed the appeal. Hence, this civil revision by the plaintiff.
3. Learned counsel for the plaintiff petitioner argues that as performance of Talbs has been admitted by the learned first appellate court and findings have been recorded in favour of the petitioner and when the respondent has not filed any cross-objection or revision petition, therefore, to that extent findings of the learned first appellate court are final.
' I am afraid these arguments are not tenable under the law as this Court being the revisional court can see the findings that whether the same have been recorded in accordance with law or not, therefore, learned counsel was also directed to argue his case with regard to performance of Talbs in accordance with law.
' Learned counsel for the petitioner argues that as defendant has not specifically denied the performance of Talbs in accordance with law by the plaintiff-petitioner, therefore, states that when receipt of acknowledgement of notice of Talb-e-Ishhad was produced as Exh.P.3, therefore, there was no need to produce the Postman for proving service of notice, therefore, states that performance of Talbs is proved in accordance with law.
' So far as right of pre-emption is concerned, learned counsel for the petitioner has emphasized on the point that Patwari Halqa has bifurcated impugned Khata numbers and while referring many judgments to strengthen his point states that Patwari Halqa has no authority to bifurcate the khata numbers without proper process of law. As the point argued by learned counsel for the petitioner is not in issue, it will be an academic discussion in this case, when plaintiff failed to bring on record the impugned mutation, its implementation in specific Khatas and then bifurcation of these Khatas, therefore, there is no need to discuss this point as well as law referred by the learned counsel for the petitioner.
4. On the other hand,- learned counsel for the respondent argues that there are concurrent findings of fact recorded by the two courts below, therefore, this Court cannot interfere in the same unless some jurisdictional defect is highlighted or some misreading and non-reading of evidence is shown by the other side. While relying upon the recent judgment of august Supreme Court of Pakistan argues that the production of Postman was necessary to prove Talb-e-Ishhad. Argues that there is no admission on the part of the respondent with regard to performance of Talbs in accordance with law by the petitioner, therefore, plaintiff was bound to prove performance of Talbs in accordance with law.
5. I have heard learned counsel for the parties at length and have gone through the record with their able assistance.
6. So far as question of performance of Talbs is concerned, the story narrated by the plaintiff is not plausible as he has admitted that at the time of performance of Talb he was appointed in CMH, Kohat on 4-2-1999 and on 5-2-1999 he came to Talagang, it was Kashmir holiday, he met the counsel in the courts' premises where notice of Talb-e-Ishhad was prepared and he handed over the same to his brother to dispatch the same on 6-2-1999. In the cross-examination he has admitted that the defendant-vendee tried to construct a small room after purchase of the suit property and he filed an application. As sale is dated 29-1-1999 and the case of the defendant that three months prior to the attestation of mutation the sale transaction was complete and they have excavated a well as well as constructed a room. Excavation of well and construction of room have not been specifically denied in the cross-examination by the plaintiff. As the defendant has pleaded these facts in his written statement, therefore, the story narrated by the plaintiff with regard to knowledge of sale is not believable. Further the plaintiff has narrated as P.W.1 that about 5 pm in his house he came to know about the impugned sale, therefore, the place of knowledge is not, specific. For proving Talb-e-Ishhad in accordance with law, pleading and proving the specific' place of knowledge is necessary, house is not a specific place, as it is a vast place. P. W.2 who is alleged informer and real brother of plaintiff, does not mention even date and place of Talb-e- Muwathebat. Light can be taken from "Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others" (PLD 2007 Supreme Court 302). Further the awyer who got prepared the notice was not produced, Postman was also not produced to prove the receipt of notice of Talb-e- Ishhad by the defendant. In this view of the matter, the findings of learned first appellate court that plaintiff has proved the Talbs in accordance with law are not in accordance with the evidence available on the file and the law declared by the august Supreme Court of Pakistan i.e. "Bashir Ahmed v. Ghulam Rasool" (2011 SCM R 762), "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCM R 1105). When defendant has not admitted the receipt of notice in his written statement, it was the duty of plaintiff to prove the performance of Talbs in accordance with law, specially by producing Postman to prove the receipt or refusal to receive notice of Talb-eIshhad. Even no question has been put to defendant in the cross-examination that he received the notice of Talb- e-Ishhad nor acknowledgement receipt Exh.P.3 has been put to him, therefore, plaintiff miserably failed to prove Talb-e-Ishhad in accordance with law. Light can be taken from "Allah Ditta through L.Rs. And others versus Muhammad Anar" (2013 SCM R 866).
7. So far as question of right of preemption is concerned, the plaintiff has produced Register Haqdaran Zameen for the year 1995-1996 as Exh.P.5 to prove his superior right of pre-emption. I have noticed that plaintiff has not even bothered to produce copy of the impugned mutation.
When questioned that how the plaintiff-can by succeed when he has not even produced copy of impugned mutation and further that the copy of Register Haqdaran Zameen relates to the year 1995-1996 and the sale is in the year 1999 and furthermore the name of the petitioner is not mentioned in Column No.3, which relates to the entry of owners of the Khata, learned counsel states that petitioner purchased the land in the Khata through Mutation No. 611 which has been entered in the last Column which is "Khana Kaifiyat" of Exh.P.5, therefore, states that superior right of plaintiff is proved and further that as the sale is admitted one, therefore, there was no need to produce copy of impugned mutation. I am afraid all these arguments are not tenable in the eye of law, as plaintiff has to prove the sale of specific property by producing the sale instrument, without producing the impugned mutation the plaintiff cannot succeed in proving the superior right. Even otherwise, admittedly the name of the petitioner is not mentioned in Column No.3 of Exh.P5 which relates to the name of owners in the Khata. The entry in the "Khana Kaifiyat" does not have the presumption of correctness whereas entry of name of the owners in Column No.3 has the presumption of correctness. For proving entries of Column No.10 of Exh.P5 plaintiff was required to produce Patwari halqa along with record. Furthermore, this Exh.P5 relates to the year 1995-96 i.e. At least four years prior to the impugned sale. For proving right of pre-emption plaintiff was required to produce impugned mutation as well as Register Haqdaran Zamin to establish his right existing at the time of sale in the impugned khatas, at the time of filing of suit and at the time of decree, which he miserably failed to prove. I have noticed than even Patwari Halqa has given some details of the mutation and the land sold through. Various mutations in the last Column i.e. Column No. 10 of the Exh.P5. It seems that it is result of overdoing by Patwari, as these details are not required to be mentioned in Column No.10 of the Register Haqdaran Zameen.
8. In this view of the matter, plaintiff-petitioner also miserably failed to prove his right of pre- emption on the impugned land. Resultantly, for what has been discussed above, this civil revision having no force stands dismissed.