' MAHMOOD AHMAD BHATTI, J. --- This revision petition is directed against the judgments and decrees dated 11.2.2004 and 4.5.2005 passed by the learned Civil Judge, Mandi Baha-ud-Din and an Additional District Judge, Mandi Baha-ud-Din, respectively, whereby suit of the petitioner for possession through pre-emption was dismissed arid an appeal preferred thereagainst was dismissed as well.
2. Shortly stated, the petitioner instituted a suit for possession through pre-emption to pre-empt a sale made in favour of Muhammad Riaz, respondent/defendant, by which he purchased land measuring 08 Kanals, 12 Marlas situated in Mauza Kot Blauch, Tehsil and District Mandi Baha-ud- Din through mutation No, 861 attested on 31.7.1994. It was maintained by him that the suit land was sold for a consideration of Rs, 50,000/-. However, an inflated value of Rs, 10,600/- was got entered in the aforesaid mutation to keep the prospective pre-emptors at bay. It was claimed in the plaint that as soon as the plaintiff came to know of the sale in question on 6.11.1994, he declared immediately that he would be exercising his right of pre-emption. Thereafter he got prepared a notice of Talb-e-lshhad and sent it to the defendant, thereby fulfilling Talb-e-Ishhad. It was further averred in the plaint that the petitioner is Shafi Shareek, Shafi Khaleet and Shafi Jar, while the defendant lacked all these qualifications prior to his making the purchase of the suit land.
3. The defendant entered appearance and filed written statement, denying all the assertions made by the petitioner/plaintiff.
4. In order to prove his claim, the petitioner produced Muhammad Anwar as P.W.2 and he himself appeared as P.W.1. In documentary evidence, copy of notice of Talb-e-Ishhad was produced as Exh.P.1, copy of sale mutation in question as Exh.P.2, copy of an extract from the register Haqdaran- e-Zameen for the year 1992-1993 as Exh.P.3, copy of postal receipt as Exh.P.4, an A.D. As Exh.P.5, Copy of Khasra Girdawari as Exh.P.6, copy of mutation No, 880, dated 28.3.1995 as Exh.P.7 and copy of mutation No, 865, dated 18.8.1994 as Exh.P.8.
5. In rebuttal, the defendant produced Bashir Ahmad as D.W.2 and he himself appeared as D.W.1. In documentary evidence, he tendered copy of mutation No, 861, dated 31.7.1994 as Exh.D.1.
6. As stated above, the learned Trial Court proceeded to dismiss the suit of the petitioner vide judgment and decree dated 11.2.2014, holding that the petitioner failed to prove the performance of Talbs in terms of Section 13 of the Punjab Pre-emption Act, 1991. Feeling aggrieved, the petitioner preferred an appeal which was also dismissed by an Additional District Judge, Mandi Baha-ud-Din vide judgment and decree dated 4.5.2005. Hence this revision petition.
7. In support of this petition, the learned counsel for the petitioner has vehemently argued that the findings recorded by both the learned Courts below are erroneous; that both the impugned judgments suffered from non-reading and misreading of evidence; that both the learned Courts below misapprehended the facts, misconstrued the evidence and misapplied the law. It is argued by him that nowhere has it been provided in Section 13 of the Punjab Pre-emption Act, 1991 that the plaintiff is required to specify day, date, time and place of making of Talb-e-Muwathibat. He concludes by making the submission that the Courts are reading into the statutory provisions which has not been provided for by the legislature.
8. I have heard the learned counsel for the petitioner and perused the record appended to the revision petition.
9. From a perusal of the copy of the plaint, it is abundantly clear that the petitioner did make mention of the date of making Talb-e-Muwathibat. But he did not spell out the details as to when and where he carried out this Talb. The details about time and place of making Talb-eMuwathibat are glaringly and conspicuously missing. Again, he did not bother to mention the date of notice of Talb-eIshhad. Furthermore, the plaint is completely silent on the names of the witnesses who either put their signatures to the notice of Talb-e-Ishhad or thumb marked the same. All these defects in the plaint were fatal to the case of the petitioner. It is well-established law that so long as the material facts are not stated in the pleadings, the party concerned cannot be allowed to build a case thereon. In other words, the evidence to be led by a party is required to be consistent with its pleadings.
10. The judgment of the Hon'ble Supreme Court of Pakistan reported as "Muhammad Ismail v.
Muhammad Yousaf (2012 SCM R 911) is on all fours with the facts of the instant case. The apex Court reaffirmed the law laid down by it in the earlier judgments in the following words:--- ' This Court reiterated the same view in Bashiran Begum v. Nazar Hussain (PLD 2008 SC 559) wherein it was observed as follows:- ' It is to be noted that this controversy has been finally settled by a Full Bench of this Court comprising five Hon'ble Judges in Civil Appeal No, 1951 of 2000, decided on 12.12.2006 in case of Mian Pir Muhammad and another v. Faqir Muhammad through L. Rs, and others (PLD 2007 SC 302), wherein all these authorities and references have been plausibly discussed and it was held that in a suit for preemption mentioning of date, place and time of making Talb-i-Muwathibat, in the plaint, is mandatory because in the absence of proper date, place and time, the time given in Section 13(3) of the Punjab Pre-emption Act, 1991 ' (hereinafter referred as the Act) for making Talb- i-lshhad which is 14 days, cannot be correctly calculated. It is necessary that as soon as the pre- emptor acquires knowledge of sale of pre-empted property, he would make immediate demand about his desire and intention to assert his right of pre-emption without slightest loss of time and after making Talb-i-Muwathibat in terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i,e, Talb-i-Ishhad as soon as possible after making of Talb-i- Muwathibat, but not later than two weeks from the date of knowledge/performance of Talb-i- Muwathibat. The mentioning of date, place and time in the plaint in a suit for pre-emption is mandatory regarding Talb-i-Muwathibat because from such date the time provided by the statute for making of Talb-i-lshhad i,e, 14 days, can be calculated. If there is no mention of date, place and time of knowledge about sale and making of Talb-i-Muwathibat, then it would be very difficult to give effect to Section 13(3) of the Act and there is every possibility that instead of allowing letter of law to remain in force, the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-iMuwathibat in his statement in Court and then on the basis of the same, try to justify the delay, if any, occurred in the performance of Talb-i-lshhad. Performance of both these Talbs is a sine qua non for getting a decree in a preemption suit. This Court has approved the view that a plaint wherein date, place and time of making of Talb-i-Muwathibat and date of issuing notice of Talb-i-Ishhad in terms of Section 13 of the Act, is not provided, it would be fatal for the pre-emption suit. The Hon'ble Bench of five Judges has dissented from the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCM R 329). Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCM R 314) and has approved the view expressed in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315), Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977)."
11. The above statement of law was reiterated in the case of "Muhammad All v. Mst. Humaira Fatima" (2013 SCM R 178). The relevant portion from this judgment reads as under:- "Not only Talb-e-Muwathibat has to be pleaded in the plaint with the requisite details and particulars, but also has to be proved through cogent evidence."
12. In this respect, reference may also be made to the case of Munir Hussain v. Afaq Ahmad (2013 SCM R 721).
In the instant case, the petitioner/plaintiff not only failed to give particulars of Talb-e-Muwathibat and Talbe-Ishhad in the plaint but he was also found wanting in this respect at the time of recording his testimony. The requirement of being exact as to the making of Talb-eMuwathibat is co-related to the performance of Talb-eIshhad, which is to be made within two weeks of carrying out the first Talb. This aspect of the law of pre-emption has been highlighted in several cases, including the ones reported as Appellate judgment--- ---When the judgments of the Courts below are at variance "Pir Muhammad v. Faqir Muhammad"
(PLD 2007 S.C. 302), "Abdul Aziz v. Fateh Muhammad"(2007 SCM R 336), "Fazal-ur-Rehman v.
Khurshid Ali" (2012 SCM R 635) and "Muhammad All v. Mst. Humaira Fatima"(Supra).
14. Apart from the bald assertions, the learned counsel has not pointed out any misreading or non- reading of evidence on the part of the learned Courts below. Learned Courts below adverted to each and every aspect of the case, but in the absence of proving the performance of Talbs on the part of the petitioner, they had no option but to non-suit him. The findings recorded by them have not been shown to be erroneous.
15. Since both the learned Courts below exercised the jurisdiction vested in them in accordance with the law, there is no warrant to interfere with the concurrent findings recorded by them. This petition being devoid of merits is hereby dismissed in limine. Civil revision .