Sardar Ahmed Naeem, J:- This is a Revision Petition under section 115, C.P.C against the judgment and decree dated 27.03.2007 passed by the learned Addl. District Judge, Bhakkar whereby, judgment and decree dated 27.2.2006 passed by the learned Civil Judge Bhakkar was set aside.
2. Briefly, the facts are that respondent pre-empted sale of land measuring 3 Kanals, bearing Khata No.536/933, 935 described in the head note of the plaint, struck through mutation No.2620 dated 24.01.2003 for a consideration of Rs.60,000/-. It was averred in the plaint that the suit land was purchased for Rs.47000/- but sale price was shown as Rs.60,000/-. It was further asserted that the respondent came to know regarding sale of the suit land on 16.05.2003 at 10.00 a.m through Qaiser Abbas in presence of Mureed Hashim and immediately, made a jumping demand. The notice of Talb-i-ishhad was got executed on 19.05.2003 and was dispatched through registered post/AD to the petitioner and thus, requirement of Talb-i-ishhad was also fulfilled.
3. The petitioner filed the written statement and contested the suit on factual/legal grounds. The learned trial Court framed nine issues.
4. The parties adduced their evidence. The learned trial Court vide its judgment and decree dated 27.02.2006 dismissed the suit.
5. Feeling aggrieved, respondent filed an appeal, which was allowed vide judgment and decree dated 27.03.2007, being impugned before the Court.
6. Learned counsel for the petitioner submits that right to pre-emption is feeble right; that respondent miserably failed to prove Talab-i-Muwathibat and Talb-i-Ishhad in accordance with prevalent law. It was argued that the petitioner denied the service of notice and thus, it was imperative for the respondent to discharge the onus and to prove the factum of the service of notice through cogent and reliable evidence, which has not been done in this case and that the impugned judgment and decree was liable to be set aside on this ground alone.
7. Learned counsel for the respondent argued that respondent was not obliged to produce the postman as according to the law then prevalent, he was not required to do so, thus, the Court in its revisional jurisdiction was only supposed and confined to examine, if there was/is any error of jurisdiction or material irregularity committed by the Court.
After hearing the learned counsel for the parties, the following points emerged for the resolution:- i) whether it was obligatory for the respondent to produce the postman in view of the law laid down by the Hon'ble Supreme Court of Pakistan in case of " MUHAMMAD BASHIR and others V. ABBAS ALI SHAH" (2007 SCM R 1105), and ii) whether the law applicable to the matter shall be the one before Muhammad Bashir case (supra).
9. In order to prove his case, the respondent appeared as PW:1. He deposed that he had knowledge regarding sale of the disputed land on 16.05.2003 at 10.00 a.m in presence of Mureed Hashim Khan PW through Qaiser Abbas. He then and there made Talab-i-Muwathibat. The informant, namely, Qaiser Abbas was examined as PW:2 and he also supported the respondent followed by Mureed Hashim. All the three witnesses deposed that on 19.5.2003, they went to District Courts and got prepared notice Exh.P-I through a Munshi. They affixed their thumbs on P-I and dispatched the same to the petitioner. This fact also finds mention in para4 of the plaint which was controverted by the petitioner by filing the written statement. He appeared as DW:1 and described in clear terms that he was not served with any notice by the respondent, therefore, it was obligatory for the respondent to have produced its acknowledgment due and the postman. The august Supreme Court of Pakistan in " MUHAMMAD BASHIR and others V. ABBAS ALI SHAH" (2007 SCM R 1105) observed that where the addressee of notice for Talb-i-Ishhad denies the receipt of notice claimed to have been sent through postal service by the plaintiff of a preemption suit, it was for him to prove its service by producing postman in the Court and of the endorsement of its acceptance or refusal as the case may be of the said registered postal notice, which has not been done by the respondent in this case, thus, the respondent failed to fulfill the above mentioned requirement as no postman was produced to show the service of notice of Talb-i-Ishhad.
10. It is also settled law that in order to succeed a pre-emptor must prove the essential condition for exercise of such right of pre-emption in accordance with section 13 of the Punjab Pre-emption Act, 1991. Even if it is believed that respondent proved Talab-iMuwathibat but he failed to prove Talb-i-Ishhad strictly in accordance with section 13 of the Punjab Pre-emption Act, 1991 and thus, can't succeed.
So far as, the contention of learned counsel for the respondent mentioned at serial No.2 of para No.8 is concerned, a similar question also came up for hearing before the august Supreme Court of Pakistan in "DILBER KHAN V. MUHAMMAD ASHRAF" (PLD 2013 Supreme Court 171) and in para-5 at page 174, their lordships observed as under:- "5. Heard. Being conscious of the dicta of this Court whereby while declaring a particular law as ultra vires of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) and a specific cut off date as to when the judgment would take effect and further providing for saving the decision/decree passed prior thereto, we are of the view that latest judgment/verdict of this Court not falling within the above category, which enunciates the principle of law, in respect of a specific/particular law by interpreting the same e.g (preemption/rent/family) that such judgment shall be given fullest effect and should be strictly followed till the time the lis stands finally terminated/determined. Meaning thereby that it (lis) is not pending before any forum (not the apex Court); this should be irrespective when the case was instituted or the decision was passed by the first Court or subsequent courts. It is the final and conclusive judgment/opinion of the apex Court deciding a question of law, or based upon or enunciates a principle of law which shall have the binding effect and should be adhered to in letter and spirit, obviously if it otherwise qualify the test of precedence over the earlier view, under the known principles of interpretation and application of the "precedent case law". In our opinion, the instant case was/is squarely covered by Pir Muhammad case at the revisional stage and the revisional Court was duty bound to decide the matter as per thereto in terms of Article 189 of the Constitution. Besides, it has not been candidly controverted by the learned counsel when confronted by the Court during the course of hearing, that in the evidence the appellant was required to testify/establish/prove the said particulars, but on examination of the evidence, it reveals that those (particulars) are conspicuously missing. None of the witnesses produced by the appellant with regard to Talab-i-Muwathibat has deposed about the date, time and venue of making the Talab-i-Muwathibat. Therefore, on this ground alone, we are not persuaded to interfere in the impugned judgment. This appeal accordingly has no merit and is dismissed"
Seeking guidance from the above observations of their lordships it can safely be concluded that the instant case is fully covered by "MUHAMMAD BASHIR and others V. ABBAS ALI SHAH" (2007 SCM R 1105).
11. In view of what has been mentioned above, the revision petition is accepted and the impugned judgment and decree dated 27.03.2007 passed by the learned Addl. District Judge, Bhakkar is hereby set aside, resultantly, the suit filed by respondent is dismissed, leaving the parties to bear their own costs.