' CH. MUHAMMAD MASOOD JAHANGIR, J.---The facts germane for disposal of the instant civil revision are that Muhammad Riaz, respondent-plaintiff filed a suit for possession through pre- emption against the petitioner-defendant before the learned trial court, fully mentioned in para-1 of the plaint, with the assertions that the disputed property had been purchased by the present petitioner-defendant vide Mutation No, 2069 dated 16-7-2002 against a consideration of Rs,1,60,000, which came into the knowledge of the respondent-plaintiff on 16-7-2002 at 3.00 p.m.
While sitting at his Dera along with Shaukat Ali and Saif Ullah, when Muhammad Azam and Muhammad Feroze came there and informed the respondent-plaintiff about the alleged sale, who immediately performed Talb-i-Muwathibat. Then on 18-7-2002 he dispatched notice to the petitioner-defendant showing his intention to pre-empt suit property and thus fulfilled the requirement of Talb-i-Ishhad. The said suit was contested by the petitioner-defendant by filing his written statement with the assertions that the disputed property had been gifted out to him by the donor and the respondent-plaintiff badly failed to fulfil the requisite Talbs as per law. The learned trial court captured the disputed area of facts by framing the following issues:-
(I) Whether the plaintiff has performed the taibs as required by law? OPP
(2) Whether the plaintiff has got a right of pre-emption with respect to the suit land? OPP
(3) Whether the plaintiff is entitled to a decree for possession through right of pre-emption as prayed for? OPP
(4) Whether the land in disputed was sold out to the defendant for a consideration of Rs, 1 ,60,000?
OPP
(5) Whether the plaintiff has no cause of action to file this suit? OPD
(6) Whether the suit is not maintainable in its present form? OPD
(7) Whether the suit is based upon mala fide and the defendant is entitled to recover special costs under section 35-A C.P.C.? OPD
(8) Whether the suit does not legally lie in view of preliminary objection No,1 of the written statement? OPD
(9) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?
OPD
(10) Relief
2. The parties produced their evidence in pros and cons before the learned trial court, which dismissed the suit of the respondent-plaintiff vide judgment and decree dated 8-6-2006 while rendering findings on issue No,1 against the respondent-plaintiff regarding non-performance of Talbs. However, the learned trial court while dealing with issue No,4 declared the disputed transaction as a sale and answered the said issue against the present petitioner-defendant. The respondent-plaintiff filed an appeal before the learned lower appellate court against the dismissal of his suit whereas the petitioner-defendant also filed cross objections while questioning the findings of the learned trial court on issue No,4. The learned lower appellate court accepted the appeal filed by the respondent-plaintiff and decreed the suit for pre-emption whereas the cross objections filed by the present petitioner-defendant were dismissed vide consolidated judgment and decree dated 8-5-2008. Being dissatisfied, the petitioner-defendant has assailed the impugned judgment and decree passed by the learned Addl. District Judge, Gujrat by filing the instant civil revision.
3. The learned counsel for the petitioner-defendant has argued that the learned lower appellate coon wrongly decided issue No,1 against the evidence available on the file; that the respondent- plaintiff failed to prove the fulfilment of requisite Talbs as per law; that the disputed property had actually been alienated by the donor to the petitioner-defendant through a gift, but the respondent-plaintiff in connivance with the revenue Patwari after fabrication converted mutation of gift into mutation of sale; that the findings of learned lower appellate on issues Nos.1 and 4 being erroneous and against the evidence on the record are liable to be set aside. He has lastly prayed for setting aside of the impugned judgment and decree passed by the learned lower appellate court and that the suit of the respondent-plaintiff be dismissed.
4. Conversely, the learned counsel for the respondent-plaintiff has supported the impugned judgment and decree passed by the learned lower appellate court and also argued that the respondent-plaintiff by producing qualitative and quantitative evidence fully proved the requisite Talbs; that it stood proved on record through the evidence that the petitioner-defendant had purchased the disputed property from the previous owner; and that the learned lower appellate court while passing a well reasoned judgment has decreed the suit, which is liable to be maintained after dismissal of this Civil Revision on merits. The learned counsel for the respondent has also argued that the petitioner-defendant failed to append attested copy of decree sheet maintained by the learned lower appellate court in appeal filed by the respondent with the instant civil revision at the time of filing thereof and in view of the case-law declared in District Coordination Officer, Sukkur and 8 others v. Khan Muhammad through General Attorney and 3 others (2013 MLD 1369) and Mubarik Ali v. Muhammad Ramzan (2004 SCMR 1740), the revision petition being not competent is liable to be dismissed on this score as well.
5. Arguments heard and record perused.
6. The pivotal question, which requires determination first by this court is issue No,1 regarding performance of requisite Talbs and to prove the same, the respondent-plaintiff himself appeared as P.W.1, who fully supported his version as narrated in the plaint. The respondent-plaintiff also produced Muhammad Azam the alleged informer as P.W.2 and Muhammad Feroze the participant of the Majlis as P.W.3. Although regarding the performance of Talb-i-Muwathibat some discrepancies are found to have emerged from the cross-examination of P.W.1 to P.W.3, but those can be considered as natural and minor discrepancies, which were bound to occur as lapses of time and cannot be declared fatal. However, it is observed that as regards performance of Talb-i- Ishhad the respondent-plaintiff failed to produce Booking Registry Clerk of the Post Office and the concerned postman before the learned trial court to prove that the notice Talb-i-Ishhad had not only been dispatched through post, but it was actually received by the petitioner-defendant. Even the registered post A.D. Was also not got exhibited by the respondent-plaintiff in the evidence. The contention of learned counsel for the respondent-pre-emptor that the respondent-plaintiff was not required to establish on record that the said notice had been actually received by the petitioner-defendant rather he was only to show that the notice was dispatched to the vendee cannot be accepted as there was no personal notice and the requirement of sending notice through registered post acknowledgement due reflects the intent of the law-maker that there should be personal service on the, vendee/addressee or refusal to accept the post on his part, which has to be proved through a responsible official of the Postal Department, but mere endorsement on acknowledgement due card to the effect that it was served or refused would not constitute service particularly when the vendee appeared and denied the said endorsement. The said question has already been resolved by the august Supreme Court of Pakistan in the judgment reported as Muhammad Bashir and others v. Abbas All Shah (2007 SCMR 1105). The relevant portion reads as under:--.
"The requirement of "Sending a notice in writing" is followed by a rider i,e, "Under registered cover acknowledge 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 pre-empt but a notice served on the addressee to appraise him about his intention to preempt. To say that mere "sending of notice" is enough would make the expression "acknowledge due" redundant. The service of the addressee as prescribed in law therefore is imperative."
'Then relying upon the same judgment the august Supreme Court of Pakistan has pronounced another judgment reported as Allah Ditta Through L.Rs, and others v. Muhammad Anar (2013 SCMR 866) and once again has observed in para-2 as under:- "As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas All Shah (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as DW. Has admitted the receipt of the notice and, therefore, the respondent plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two courts below."
7. The above said view has also been followed by this Court in various judgments reported as Rabia Bibi and another v. Jahana through L.Rs, (2013 YLR 2016), Islam ud Din v. Muhammad Younis and others (2013 YLR 947), Sultan Ali v. Ghulam Hussain and another (2012 YLR 2545), Mushtaq Hussain and others v. Muhammad Inayat and others (PLD 2012 Lahore 234), Muhammad Ajmal Khan v.
Muhammad Younis Khan (2009 MLD 549) and Muhammad Yousaf v. Raza Muhammad and another (2011 YLR 1972). It is thus borne out that plaintiff-pre-emptor is not only required to prove the sending of notice of Talb-i-Ishhad to the defendant, but it is also obligatory upon him to prove the delivery of the notice to the defendant by the production of postman. Such a failure on the part of the respondent-plaintiff is fatal and in view of the dictum laid down by the august Supreme Court of Pakistan in Munawar Hussain and others v. Afaq Ahmed (2013 SCMR 721) Bashir Ahmed v.
Ghulam Rasool (2011 SCMR 762), and Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) the suit for preemption cannot succeed. In the light of the above dictums, the respondent- plaintiff failed to prove Talb-i-Ishhad therefore, the findings of learned lower appellate court to the extent of issue No,1 are reversed and that of learned trial court are restored. Since the respondent- plaintiff has failed to cross the barrier of the requisite Talbs failing which the suit for pre-emption cannot succeed, I do not feel it necessary to dilate upon the other issues including issue No,4.
8.As regards the contention of learned counsel for the respondent-plaintiff that the petitioner- defendant failed to append the attested copy of decree sheet drawn by the learned lower appellate court in the appeal filed by the respondent along with this civil revision and on this score alone this civil revision being not maintainable is liable dismissed, suffice it to say that from the perusal of file it reveals that attested copy of one of the decree sheet prepared by the learned lower appellate court is appended with the civil revision, which is available at page-25, wherein, it is mentioned that the cross objection/appeal is dismissed. The learned counsel for the respondent/plaintiff has argued that the said decree sheet was drawn by the learned lower appellate court while dismissing cross objection No,40 of 2008 filed by the petitioner-defendant whereas the appeal filed by the respondent-plaintiff was marked as Appeal No,39 of 2008 wherein a separate decree sheet was drawn by the learned lower appellate court regarding acceptance of the appeal, but the petitioner having failed to append the said decree sheet should have faced the consequences. I have minutely perused the certified copies of the documents including the impugned judgment and the decree sheet appended with the file of this Civil Revision and apparently it is found that due to some omission or oversight on the part of the staff of the lower appellate court or the Copying Agency the attested copy of the decree sheet drawn in the file of Cross-Objections was issued instead of the same drawn in the appeal file as the consolidated judgment was passed in appeal file whereas only copy of the cross-objections filed by the petitioner was issued, but no copy of any order passed therein was supplied. The petitioner cannot be bound to suffer merely on technicality who on the other hand has a very good case on merits and an order/judgment passed by the learned courts below, if is liable to be set aside, cannot be legitimated on such score alone as actually the courts are custodian of the rights of the people and the same cannot be washed away due to the defects committed in the procedure. The case- law cited by learned counsel for the respondent-defendant runs on different footing and cannot be applied to the facts and circumstances of the present case. I am of the view that when composite judgment was passed and challenged in Civil Revision, no procedural illegality and rather technicalities should stand in way of disposal of Civil Revision on merits. Even otherwise at the time of filing of instant civil revision, no objection was raised by the Office of this Court and pre- admission notice was issued to the respondent. Moreover, the petitioner-defendant by filing C.M.No,l-C-2014 has also brought on record the attested copy of the decree sheet prepared by the learned lower appellate court whereby appeal filed by the respondent-plaintiff was accepted, so any irregularity, if committed, stands rectified. In the instant case, the learned lower appellate court decided the appeal as well as the cross-objections through a consolidated judgment and non- filing of decree sheet of one case along, with the consolidated judgment cannot render revision petition incompetent. Reliance in this respect is placed on the judgments reported as Saraswathi Ammal and another v. Rajagopal Ammal (AIR (39) 1952 MADARAS 81 (C.N.39) and Shukar Din and others v. Nazir Ahmed and others (1993 CLC 1367). Consequently, the contention of the learned counsel for the respondent-plaintiff that the instant civil revision is not maintainable on the ground that the petitioner-defendant failed to append certified copy of the decree sheet, which was actually drawn in the appeal, along with the instant civil revision is repelled.
9. In view of what has been discussed above, the instant civil revision is allowed, the impugned judgment and decree passed by the learned lower appellate court is set aside and that of learned trial court whereby the suit filed by the respondent-plaintiff was dismissed is restored.