' WAQAR AHMAD SETH, J.---The instant revision petition has been directed against the judgment and decree dated 03/01/2012 passed by the learned District Judge, Swabi whereby he accepted the appeal of Haji Mir Ghalib Khan respondent/plaintiff, set aside the judgment and decree dated 21/06/2011 of the learned Civil Judge-II Swabi and remanded the case to the Trial Court for decision on merits after recording evidence in the case and the application for amendment of the plaint also be considered again as per law.
2. Briefly stated the facts of the caseare that Haji Mir Ghalib Khan respondent/ plaintiff filed a suit against Rahim-ulWahab and others petitioners/defendants for possession through pre-emption of the suit property measuring 07 Kanal 19 Marla fully described in the heading of the plaint purchased by the petitioners/defendants through sale Mutation No.2234 attested on 11-9-2008 for a sale consideration of 4,00,000 but in order to deprive the respondent/plaintiff to exercise his right of pre-emption an exaggerated amount of Rs.12,00,000 has been entered in the Mutation in question. It was alleged in the plaint that the respondent/plaintiff got the knowledge of the transaction on 20-10-2008 at 3-00 hours through Nawab Ali his son and he made Talb-e- Muwathibat there and then in presence of Mir Ghalib and Sher Azam followed by issuance of a notice i.e. Talb-e-Ishhad to the petitioners/defendants on 25/10/2008 and that the petitioners/ defendants were asked time and again to admit the claim of the respondent/plaintiff but they refused, hence, the instant suit.
3. The suit was contested by the petitioners/defendants by filing written statement and out of divergent pleadings of the parties eleven issues including relief were framed. During the course of evidence of the respondent/plaintiff when on 5-5-2011 the petitioners/defendants submitted an application for dismissal of the suit on the ground of non- mentioning the place of initial Talb-i- Muwathibat in the plaint which was resisted by the respondent/ plaintiff and after hearing the learned counsel for the parties, the learned Civil Judge-II, Swabi accepted the same and dismissed the suit of the respondent/ plaintiff vide his judgment and decree dated 21-6-2011 against which an appeal bearing No. 77/13 of 2011 was filed which was accepted by the learned District Judge, Swabi vide his judgment and decree dated 3-1-2012, the judgment and decree dated 21-6-2011 was set aside and the case was remanded to the trial Court for decision afresh. Hence the instant revision petition by the petitioners/defendants.
4. I have heard the learned counsel for the parties and have also gone through the record with their able assistance.
5. Perusal of the plaint reveals thatthe respondent/plaintiff mentioned the date and time and not the place of making demands. Place of making immediate demand is essential particular of pleadings which was required to be mentioned in the plaint to prove as to where did the preemptor receive information. The most essential and crucial aspect for resolvingthe present case is to determine, whether non- mentioning of place of making Talb-iMuwathibat in the plaint was fatal or otherwise under section 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987.
6. The question whether the non-mentioning of time, place and the witnesses before whom Talb-i- Muwathibit was made is a sine qua non to prove it has already been considered by the Apex Court in several judgments and the matter was finally settled by the august Supreme Court of Pakistan while rendering its judgment in "Mian Pir Muhammad v. Faqir Muhammad" (PLD 2007 Supreme Court 302) it was held as follow:-##T3## "It is observed that great emphasis and importance is to be given to this word in making of" 'Talb- iMuwathibat' afid it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talb-i-Muwathibat in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e making Talb-i-Ishhad as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat, therefore, question canconveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, itwould be mandatory to mention in the plaint date, place and tune of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i.e. 14 days under subsection (3) of section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat then it would be very difficult to give effect fully to subsection (3) of the section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully 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 would try to justify the delay If any, occurring in the performance of Talb-e-Ishhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit"
' Reliance in this regard is also placed on a case titled "Fazal-ur-Rehman v. Khurshid Ali and another (2012 SCM R 635)".
7. Examined from this angle and in the light of the judgment of the Honourable Supreme Court of Pakistan it appears that the plaint suffered from a fatal defect. Moreover, it would also be important to note that failing to mention essential particulars about a fact in the pleadings would surely result in depriving the said person to prove the same in evidence. It is settled principle of law that a person cannot go beyond his pleadings. This aspect of the case has also been dilated by the august Supreme Court in "Fazal Din v.Muhammad Inayat (2007 SCM R 1) wherein it was held that, "this is settled law that the pleadings of the parties is based on the statement of facts given therein which are proved by producing evidence by the trial and in the names of the witnesses and the list of witnesses is not required to be given in the plaint or written statement as it is not part of the pleadings rather pleading is contained only on material facts.
' This is settled law that the fact which is closed in the pleadings cannot be subsequently allowed to be proved and thus if a party wants to prove a particular fact which was not pleaded cannot be permitted to lead evidence on such fact for the reason that second party could not set up his case in rebuttal in the written statement".
8. Though the respondent/plaintiff stated in the plaint that he got knowledge of the sale transaction on 20-10-2008 at 3-00 hours but he failed to mention the place where he was informed. Against this backdrop it can well be said that the respondent/plaintiff could not prove the requisite demands in accordance with the requirements of law. With this state of evidence, I do not think he could hope to succeed in his suit for the enforcement of right of pre-emption under the latest dispensation.
9. For the reasons discussed above, the instant revision petition is accepted, judgment and decree dated 3-1-2012 of the learned Appellate Court is set aside and that of the learned trial Court dated 21-6-2011 is restored, meaning thereby that the suit of the respondent/plaintiff stands dismissed.