' MAHMOOD AHMAD BHATTI, J. --- This revision petition is directed against the judgment and decree dated 13.10.2010 passed by the learned Additional District Judge, Shorkot, District Jhang, whereby the judgment and decree dated 10.12.2009 passed by the learned Civil Judge, Shorkot was reversed and overturned, thereby dismissing the suit of the petitioners for pre-emption.
2. Shortly stated, Ghulam Muhammad and Falak Sher, the petitioners instituted a suit for possession through pre-emption, seeking to pre-empt a sale made in favour of Muhammad Waris/the respondent through mutation No, 4849 attested on 15.08.2003. It was averred in the plaint that the respondent purchased land measuring 09 Kanals, 13 Marlas, situated in the Village Rustam Sargana, Tehsil Shorkot, District Jhang for a consideration of Rs, 60,000/-. It was further maintained in the plaint that the preemptors/petitioners came to know of the sale through on Sultan on 27.09.2003 at 04:00 p.m. At the time, they were sitting in the house of Ghulam Muhammad, one of preemptors. The pre-emptors/petitioners claimed to have made Talb-i-Muwathibat immediately.
On 29.09.2003, notice of Talb-i-lshhad attested by Sultan Khan and Umar Daraz son of Allah Ditta was sent to the respondent/vendee.
3. The respondent/defendant entered appearance and filed written statement, controverting the assertions made by the petitioners/plaintiffs. It was specifically denied by him that the petitioners made talbs in terms of the Punjab Pre-emption Act, 1991.
4. Given the divergent pleadings of the parties, the following issues were framed by the learned Trial Court:- 1) Whether the plaintiffs have superior right over the suit land qua the defendant? OPP 2) Whether the plaintiffs are entitled for decree for pre-emption as prayed for? OPD 3) Whether actual sale price of the suit land is Rs, 60,000/-? OPP 4) Whether the plaintiffs have not fulfilled all the required 'Talbs'? OPD 5) Whether the plaintiffs remained present in the sale proceedings? OPD 6) Whether the plaintiffs are not co-sharer? OPD
(7) Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD
5. In order to prove their case, the petitioners/plaintiffs examined Abdul Ghafoor as PW1, Sultan, the alleged informer as PW3, Umar Daraz as PW4 and one of the petitioners/plaintiffs, Falak Sher appeared as PW2. In documentary evidence, the petitioners/plaintiffs produced notice of Talb-i- lshhad as Exh.P.1, copy of sale mutation as Exh.P.2, copy of postal receipt as Exh.P.3, an extract from register Haqdaran-e-zamin for the year 20012002 as Exh.P4 and another extract from register Haqdarane-zamin for the year 2005-2006 as Exh.P.5. The copies of two mutations were also tendered in evidence as Exh.P.6 and Exh.P.7. Apparently, those were brought on the record to show that the respondent/vendee got entered an inflated price in the sale mutation with a view to discouraging and warding off the prospective pre-emptors.
6. In order to rebut the case of the petitioners, the respondent/defendant examined Rabnawaz as D.W.2, Shah Baig as D.W.3. And he himself appeared as D.W.1. In the documentary evidence, copy of sale mutation No, 4849, dated 15.08.2003 was produced as Exh.D.1.
7. The learned Trial Court proceeded to decree the suit of the petitioners/plaintiffs vide judgment and decree dated 10.12.2009. Feeling aggrieved, Muhammad Waris, the respondent/defendant preferred an appeal, which was allowed by the learned Additional District Judge, Shorkot, District Jhang vide judgment and decree dated 13.10.2010. Hence, this revision petition.
8. In support of the revision petition, the learned counsel for the petitioners contends that the learned Trial Court misapprehended the facts, misconstrued the evidence and misapplied the law.
It is urged by him that the well-reasoned judgment passed by the learned Trial Court was set aside by the learned Appellate Court, without any rhyme or reasons. According to him, it was wrongly held by the learned Appellate Court that since Ghulam Muhammad, one of the plaintiffs/petitioners did not enter the witness-box, the plaintiffs failed to prove Talb-i-Muwathibat.
It has been vehemently argued by him that the petitioners examined Abdul Ghafoor, Postman as P.W.1. To prove the delivery of notice of Talb-i-lshhad to the vendee/respondent. Therefore, the finding of the learned Appellate Court that the petitioners failed to prove the demands of pre- emption is not borne at by the record. Lastly, it is argued by, him that the judgment passed by the learned Appellate Court suffers from misreading and non-reading of the evidence.
9. Conversely, learned counsel for the respondent has supported the impugned judgment and decree. It is strenuously argued by him that the making of Talb-i-Muwathibat is a personal act and unless each and every, pre-emptor comes forward and appears as his own witness and makes deposition about Talbs, a suit for pre cannot be decreed. It is also pointed out by him that Abdul Ghafoor, PW.1 did not deliver the envelope containing the alleged notice of Talab-i-lshhad to the respondent/vendee. On the contrary, it was admitted by him in the course of cross-examination that he had handed over the envelope in question to his son for its delivery to the vendee/respondent. According to him, the learned Appellate Court adverted to each and every aspect of the case and recorded the findings in accordance with law, whereas the judgment of the learned Trial Court proceeded on conjectures and surmises and ran counter to the evidence produced by the parties.
10. I have heard the learned counsel for the parties and perused the record.
11. It is indisputable that Ghulam Muhammad, one of the plaintiffs/pre-emptors did not enter the witness-box. By now, it is well-established law that each and every preemptor has to prove the making of Talb-i -Muwathibat and if one out of two pre-emptors fails to enter the witness stand, the suit would entail dismissal, as was held by this Court in the cases reported as 'Muhammad Ali and others v. Abdul Hafeez and others' (2005 M LD 226) and 'Mst. Razia Bibi and others versus lftikhar Ahmad and others' (2004 M LD 1719). Again it is well-settled law that without fulfilling Talb- iMuwathibat, the question of making Talb-i-lshhad would be beside the point. To state the obvious, the making of Talb-iMuwathibat is condition precedent to the fulfilling of Talb-iIshhad.
12. In the instant case, the respondent had denied the receipt of notice of Talb-i-Ishhad. In the circumstances, it was incumbent upon the pre-emptors/petitioners to examine Postman to prove that he did deliver the envelope containing the notice of Talb-i-lshhad to the respondent. No doubt, the petitioners/plaintiffs produced Abdul Ghafoor, who allegedly delivered Registry No, 1013 on 03.10.2003. However, he knocked the bottom out of the case of the pre-emptors by stating in the cross-examination that it was his son, who allegedly handed over the envelope in question to the respondent/vendee. It was rightly held by the learned Appellate Court that son of Abdul Ghafoor, the Postman was nobody to act for him nor does the law of the land contemplate the constitution of an attorney on the part of the postman. Under no circumstances could he delegate his authority to his son. Another facet of this question is that the son of the postman was not examined.
Therefore, his non-examination was fatal to the case of the plaintiff. In the circumstances, petitioners/plaintiffs failed to prove the delivery of postal envelope in terms of Section 13 of the Punjab Pre-emption Act, 1991.
13. The requirement of examination of Postman is not just a formality, as was stressed by the learned counsel for the petitioners. This aspect of the law of pre-emption was highlighted by the Hon'ble Supreme Court of Pakistan in the cases reported as 'Muhammad Bashir and others versus Abbas Ali Shah (2007 SCM R 1105), 'Allah Ditta through L.Rs, and others v. Muhammad Anar' (2013 SCM R 866) and `Bashir Ahmad v. Ghulam (2010 SCJ 643). Many a case has been dismissed on account of non-examination of the postman, particularly when the defendant denied the receipt of notice of Talb-e-Ishhad.
14. There is another dimension of the case. Abdul Ghafoor, PW.1 also admitted in the cross- examination that the postal envelope was not accompanied by any acknowledgment due (A.D). In the case of 'Muhammad Bashir and others v. Abbas All Shah (supra), the importance of acknowledgment due (A.D) was stressed by the Hon ble Supreme Court in the following manner:- "The requirement of, "sending a notice in writing" is followed by a rider i,e, "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to preempt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgement due" redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah, b. v. Election Officer (1980) 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it".
15. It goes without saying that when the judgments of the learned Courts below are at variance, the judgment of the learned Appellate Court is to be preferred to that of the learned Trial Court, especially when it is well-reasoned judgment and takes into consideration all aspects of the case.
Apart from bald assertion made on behalf of the petitioners, learned counsel for the petitioners has not been able to show that the impugned judgment suffers from misreading or non-reading of the evidence.
16. The upshot of the above discussion is that there is no merit in this revision petition, which accordingly is dismissed. Civil revision .