Brief facts giving rise to the institution of the present civil revision are that the petitioner instituted a suit for possession through preemption with respect to the disputed land fully described in head note of the plaint. The respondent contested the suit by filing written statement. Out of the divergent pleadings of the parties, following issues were framed:-
1. Whether plaintiff is entitled for a decree of possession on the basis of pre-emption as a shafi sharik, shafi khalit and shafi jar?OPP.
2. Whether plaintiff has performed all the required talabs for the purposes of proving his pre- emption right? OPP
3. Whether plaintiff is stopped from filing this suit due to his words and conduct, hence suit is not maintainable? OPD
4. What is the real sale price of the suit property? OPD
5. Whether defendant is entitled to receive Rs.5,00,000/- alleged consideration amount and other fee and charges in case the suit is decreed in favour of the plaintiff? OPD
6. Whether the defendant is entitled to receive special costs Under Section 35-A CPC? OPD
7. Relief.
2. The parties led their evidence pro and contra to prove their respective contentions. The learned trial court partially decreed the suit to the extent of 50% of the suit property in lieu of Rs.50,000/- after deducting the amount of "Zare-Soim" already deposited by him vide a judgment and decree dated 15.06.2013 and the same was assailed by respondent / Muhammad Rafique by filing appeal before the learned appellate court, who accepted the same vide its judgment and decree dated 15.05.2015 and judgment and decree dated 15.06.2013 passed by learned trial court was set aside.
3. It is contended by the learned counsel for the petitioner that the learned appellate Court has not decided issues No.3 to 6. He must give independent and separate findings on each and every issue framed by the learned trial court, hence, committed great illegality. It is further argued that issue No.2 has not been decided according to evidence available on record. He further argued that impugned judgment and decree dated 15.05.2015 is the result of misreading and non-reading of oral as well as documentary evidence available on the record.
4. Heard. Record perused.
5. The contention of learned counsel for the petitioner that the learned appellate Court has not decided issues No.3 to 6 is of no value, as it is discernable from the impugned judgment and decree dated 15.05.2015 that no arguments have been advanced on the other issues, hence, in such like situation, the finding is not material with regard to issues No.3 to 6. Even otherwise, the petitioner has miserably failed to prove the core issues i.e. Issues No.1 and 2 before the learned trial court, D.G. Khan.
6. It is also discernable from the record that learned appellate court while narrating the facts by mistake mentioned issue No.2 as "Whether plaintiff is stopped from filing this suit due to his words and conduct, hence suit is not maintainable? OPD", however, while discussing issue No.2 which is as "Whether plaintiff has performed all the required talabs for the purposes of proving his pre- emption right? OPP" has correctly decided the issue as originally framed by learned trial court. The mentioning of issue No.2 is just a mistake which does not affect the merits of the case.
7. However, the petitioner miserably failed to prove Talab-e-Muwathibat. The informer Abdul Rasheed s/o Ghulam Hussain appeared as PW-5 who in cross examination has admitted that he was informed by Muhammad Ramzan Jogia about the sale. Muhammad Ramzan Jogia has not been produced in support of statement of PW-5, therefore, the petitioner has miserably failed to prove Talab-e-Muwathibat. The law is now well settled by august Supreme Court of Pakistan in case reported as "Subhanuddin and others vs. Pir Ghulam" (PLD 2015 SC 69) in which it has been held that:- "It was, the respondent's case that upon his return from Punjab he was informed about the sale by his brother (Taj Ali). Taj Ali, lives in the same house as the respondent, but did not know whether the respondent was in the village when the sale took place, nor when the respondent returned from the Punjab and that he was informed about the sale by his nephew Nazir. The initial burden of proof with regard to these facts (the conveying of the information of sale and price) lay upon the respondent, and to establish the same Nazir could have been called to give evidence, as the evidence in this regard (which was oral) was required to be direct and of the witness who saw, heard or perceived it himself (Article 71 of the Qanun-eShahadat Order, 1984), but Nazir was not produced as a witness. Consequently, an important and relevant fact was not proved by the respondent and on this ground alone the suit merited dismissal as Talb-i-Muwathibat is required to be made immediately upon learning of the sale.
That what is to be noted from the above is that a claim of pre-emption must be made immediately upon learning of the sale. In the present case the respondent stated that when he returned from Punjab he learned of the sale from Taj Ali. The appellant denied this assertion and alleged that the respondent had prior knowledge. Taj Ali, the respondent's own brother who lived in the same house, did not know whether his brother had gone to Punjab or when he returned. Taj Ali also stated that he learnt of the sale from his nephew Nazir, but Nazir, who can be categorized as a material witness, was not produced. Was it who can be categorized as a material witness, was not produced. Was it because he may not have supported the version of events as presented by the respondent or was it because Nazir had himself informed the respondent?"
8. For what has been discussed above, this civil revision being devoid of any merit is dismissed in limine.