ARSHAD MAHMOOD TABASSUM, J.---Noor Muhammad, predecessor-ininterest of the respondents, on 10-6-1998, instituted a suit for pre-emption against the petitioner, pre-empting the sale of the land measuring 56-kanals 3-marlas, being 56/66 share of Khasras Nos.1559, 1821 and 1822, situated in village Jabi Shah Dilawar (suit land), which the petitioner had purchased through mutation No. 1751, dated 25-3-1998. During the pendency of the suit, the plaintiff died and his legal heirs joined as plaintiffs Nos. 1(a) to 1(i).
2. The suit was contested by the petitioner through filing his written statement, wherein he raised certain preliminary objections including that the respondent had not fulfilled the requirements of Talb-i-Muwathibat and Talb-i-Ishhad and that he had no superior right of preemption. The learned trial court, after framing of relevant issues, put the parties to trial. Both the parties produced their pro and contra evidence and ultimately, the learned trial court, vide judgment and decree dated 6-10-2004, dismissed the suit with the following observation:-- "While the plaintiffs have produced original notice of Talb-i-Ishhad as Exh.P.1 with the contentions that the same had been returned undelivered but to corroborate this fact that the same had been registered and had been returned undelivered the plaintiffs have not examined any Postman/Postmaster, therefore, this court considers that the plaintiffs have failed to establish the fact regarding performance of Talb-i-Ishhad in accordance with law. In the above said situation and observations, this court considers that the plaintiffs have failed to perform necessary talbs as required under the law. Therefore, this issue is decided against the plaintiffs."
3. The respondent/plaintiff preferred an appeal against the said judgment and decree dated 6-10- 2004, which was allowed by the learned Additional District Judge, Talagang, District Chakwal with the following observation:-- "As far as the performance of Talb-i-Ishhad is concerned, the same was proved by original notice taken out before the court from the sealed registered envelope which was shown to be returned undelivered due to refusal of recipient to receive the same and it is pertinent to note that both marginal witnesses of the said notice have been examined as P.W.2 and P.W.3, as such, it was sufficient to prove the issuance of notice of Talb-i-Ishhad and no further details were necessary to be proved regarding writing and despatch of the said notice, therefore, I. Find that notice of Talb-i- Ishhad is proved to be issued in accordance with law."
' It is in this background that the petitioner/defendant has preferred the instant petition under Section 115, C.P.C., calling in question the judgment and decree dated 26-4-2005, passed by the learned first appellate court.
4. Learned counsel for the petitioner has argued that in view of the law laid down in the case titled "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCM R 1105) and the case titled "Allah Ditta through L.Rs. And others v. Muhammad Anar" (2013 SCM R 866), the examination of the Postman was a must to prove Talb-iIshhad and admittedly, in this case, the Postman was not produced, hence, the respondent/plaintiff had failed to prove the receipt of notice of Talb-i-Ishhad by the petitioner/defendant, so, for that reason, the suit of the respondent/plaintiff was bound to fail and the learned first appellate court has failed to appreciate this fact and illegally accepted the appeal. He has further argued that the original plaintiff, namely Noor Muhammad had died during the pendency of the suit and Ahmad Khan, his son appeared as P.W.1 to prove Talb-iMuwathibat, but there is no mention of his presence in the notice Talb-i-Ishhad, at the time the original plaintiff received information regarding the sale in dispute; that similarly, it is nowhere mentioned in the plaint that the said Ahmad Khan P. W. Was present at the time, when Talb-iMuwathibat was made and that Muhammad Iqbal P. W.2, the alleged informer has also not claimed that the said Ahmad Khan P.W. Was present, when he informed the plaintiff about the sale in dispute, hence, the said Ahmad Khan was introduced at a subsequent stage and his testimony cannot be relied upon. The third limb of the arguments of the learned counsel for the petitioner was that the address of the petitioner/defendant as mentioned in the Talb-i-Ishhad was different from the one mentioned in the plaint and that incomplete address of the petitioner/defendant was mentioned in notice Talb- i-Ishhad and for that reason also the notice Talb-i-Ishhad could not be considered to have been validly dispatched.
5. Conversely, learned counsel for the respondents has fully supported the impugned judgment and decree while relying upon the case titled "Ghulam Abbas and another v. Manzoor Ahmad and another" (2008 SCM R 1366).
6. I have heard arguments, addressed by learned counsel for the parties and myself gone through the documents annexed with this petition.
7. There is no denial of the fact that the Postman was not produced in this case and that the claim of the respondent/ plaintiff was that notice Talb-i-Ishhad had been dispatched, which was received back undelivered with the report that the petitioner/defendant had refused to receive the same. The petitioner/defendant not only denied this fact in para No. 3 of his written statement, but also while appearing as D. W.1, categorically stated as under:- {{URDU TEXT}} ' In the above circumstances, the respondent/plaintiff was obliged under the law to produce the Postman to prove the factum of denial on the part of the petitioner/defendant to receive the registered envelope, but admittedly, the said Postman was not produced during the course of trial, therefore, it could not be said that the said notice had reached the hands of the person to whom it had been dispatched. Reliance in this regard may be placed on the case of Muhammad Bashir, supra, wherein, the Apex Court has observed as under:-- "22. Admittedly there was no personal notice, and mere endorsement of "refusal" would not constitute service, since the petitioner-defendant had denied service not only in written statement but also on oath while appearing in Court. The statement made by him in Court has been found by us to be reliable. In such circumstances, the presumption if any in terms of Article 129 of the Qanun- e-Shahadat Order stood rebutted and it was for the respondent-plaintiff to prove service by producing the postman who allegedly made the endorsement which has not been done."
8. Similarly, it has been ruled in the case of Allah Ditta, supra, (2013 SCM R 866) that it was obligatory on the preemptor to prove sending of notice by leading affirmative evidence, which required production and examination of Postman. The relevant portion of the said judgment is also reproduced below for the sake of convenience:-- "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 SCM R 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 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."
While respectfully relying upon the above precedents, it is observed that the learned first appellate court has erred in law by reversing the findings of the learned trial court on issue No.7.
9. As regards the arguments of learned counsel for the petitioner that the name of Ahmad Khan, P.
W.1 does not find a mention either in the plaint or notice Talb-i-Ishhad and even in the statement of Muhammad Iqbal, informer, hence, his presence at the time of making Talb-iMuwathibat could not be believed. This argument of learned counsel for the petitioner would have been valid, had it been suggested to the said P.W. Ahmad Khan during cross-examination that he was not present at the relevant time and he had made false statement in this regard, but the entire cross-examination on the said P.W. Does not show that the said suggestion was put to the said P.W. Hence, this argument of learned counsel for the petitioner appears to be without any substance, because, it is well settled by now that when a witness is not cross-examined B on a specific point, his depositions on the said point would be taken as correct. Reliance in this regard may be placed on the case titled "Mst. Nur Jehan Begum through legal representatives v. Syed Mujtaba All Naqvi" (1991 SCM R 2300), the relevant portion whereof reads as under:-- "The principle enunciated in the commentaries and rulings is that where on a material part of his evidence a witness is not cross-examined it may be inferred that the truth of such statement has been accepted. Statement of witness which is material to the controversy of the case particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence . "
10. The third argument of learned counsel for the petitioner that incorrect address of the petitioner was mentioned on the registered postal envelope, containing notice Talb-i-Ishhad is also of no avail to him, because the address on the notice Talb-i-Ishhad and the envelop was the same as mentioned in the impugned mutation.
11. For what has been discussed above, this Court has reached the irresistible conclusion that the findings of the learned first appellant court on the point of Talb-iIshhad are opposed to the law laid down by the Apex Court, hence, cannot sustain and merit setting aside. Resultantly, this petition succeeds and the same is allowed. The impugned judgment and decree dated 26-4-2005, passed by the learned first appellate court is hereby set aside, resultantly, the suit of the respondent/ plaintiff stands dismissed throughout with no order as to cost.