SHAHID BILAL HASSAN, J. --- By this single order, the instant civil revision and connected C.R. No, 2454 of 2011, being outcome of one and the same impugned judgment and decree, in order to avoid. any conflicting order or judgment, are decided, conjointly.
2. A patch of land measuring 10 marlas situated in Revenue Estate of Dait, Tehsil & District Sialkot (disputed property) was owned by one Ghulam Rasool son of Noor Din, who sold the same to Ghulam Hussain, the petitioner, on 15.01.2008 through mutation No, 454 for an ostensible consideration of Rs, 200,000/-. The deceased father' of the respondents No, 1 to 7 instituted a suit for pre-emption on 11.02.2008 the ground that he was co-sharer in the Khata and after the death of Muhammad Ramzan the original pre-emptor, the respondents No, 1 to 7 were arrayed as plaintiffs through amended plaint.
The petitioner/defendant contested the suit by filing written statement and controverted the averments of the plaint. The learned Trial Court framed issues; both the. parties adduced their evidence, oral as well as documentary, in pro and contra. The learned Trial Court after hearing arguments vide impugned judgment and decree dated 31.07.2010 decreed the suit in favour of the respondents/plaintiffs: against which the petitioner preferred an appeal. The learned Appellate Court vide impugned judgment and decree dated 06.05.2011 set aside the judgment and decree passed by the learned Trial Court with the observation that the petitioner/defendant and the respondents enjoy equal rights, so in view of Section 20 of the Punjab Pre-emption Act, 1991 the disputed land would be shared by them jointly and decreed the suit of the respondents/plaintiffs to the extent of 1/2 share; hence, this civil revision.
The respondents/plaintiffs being aggrieved of the judgment & decree dated 06.05.2011 passed by the learned Appellate Court have filed the separate civil revision bearing No, 2454 of 2011.
3. Learned counsel for the petitioner/defendant has argued that impugned judgments and decrees are result of misreading and non-reading of evidence on record. The pre-emptors have failed to substantiate their stance by producing two truthful witnesses as per mandate of Section 13 of the Punjab Pre-emption Act, 1991 as Fazal Elahi, the other witness was not produced. Moreover, Muhammad Rasheed (P.W.7) deposed during his deposition that he alongwith his father made Talb-e-Muwathibat, but neither his name is depicted in the plaint nor in the notice Talb-e-Ishhad as such, meaning thereby he was not present at the time of making of Talb-e-Muwathibat, therefore. his statement is inadmissible in evidence but this aspect of the case has been ignored totally by the learned Courts below. Furthermore, there is no special power-of-attorney on behalf other legal heirs in favour of Muhammad Rasheed (P.W.7) as has been stated by him and the amended plaint has not been signed by all the legal heirs, so the requirements of provisions of Order VI, Rule 14 of the C.P.C. are missing, thus, the suit ought to have been dismissed instead Of decreeing the same. There are material contradictions in the statements of the witnesses, but the same have been ignored and on the basis of surmises and conjectures the impugned judgments and decrees have been passed, which resulted in miscarriage of justice. Both the learned Courts below while passing the impugned judgments and decrees have committed procedural and substantive illegalities and irregularities; hence, they have failed to exercise vested jurisdiction in accordance with law Therefore, by allowing the civil revision (No, 2301 of 2011), the impugned judgments and decrees may be set aside and suit instituted by the respondents/plaintiffs may be dismissed. Relies on Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others (2007 CLC 819-Lahore), Muhammad Hussain and others vi Ehsan Ullah 12008 M LD 382- Lahore), Jamal Din and others v. Muhammad 'shag (2010 M LD 743-Lahore), Ghafoor Khan (deceased) through LRs, v. Israr Ahmed (2011 SCM R 1545) and Muzaffar Hussain v. Mst. Bivi and 7 others (PLD 2012 Lahore 12).
4. Contrarily, it has been argued by learned counsel for the respondents/plaintiffs that the respondents have fulfilled the required Talbs in accordance with law. Maintains that while reversing findings on issue No, 10, misreading and non-reading of evidence has been done by the learned Appellate Court and law on the subject has wrongly been interpreted. Further submits that while passing the impugned judgment and decree, material irregularities and illegalities have been committed by the learned Appellate Court. Without application of independent judicious mind, the impugned judgment and decree has been passed mere on the basis of surmises and conjectures Vested jurisdiction has not been exercised in a proper way by the learned Appellate Court and a well-versed judgment and decree passed by the learned Trial Court has been outdone without any, cogent reasons. Therefore, by allowing the Civil Revision (NO. 2454 of 2011). impugned judgment and decree dated 06.05.2011 to the extent of issue No, 10 may be set aside. consequent whereof suit of the respondents/plaintiffs may be decreed by restoring the judgment and decree dated 31.07.2010 passed by the learned Trial Court.
5. Heard.
6. It is, by now, a settled principle of law that in order to succeed in a suit for possession on the basis of pre-emption, it is mandatory and imperative as well as essential to prove the performance of Talbs in accordance with law, as elaborated under Section 13 of The Punjab Pre-emption Act 1991 and when Talbs are not proved as per dictates and requirement of law, the same results fatal to the pre-emptors.
In the present case. Muhammad Rasheed (P.W.7) appeared as pre-emptor on his behalf and on behalf of the other legal heirs of original pre-emptor, but he failed to produce any power-of- attorney executed in his favour authorizing him to appear on their behalf and deposed that he was present at the time of making of Talb-e-Muwathibat by his deceased father Muhammad Raman. but the plaint as well as alleged notice Talb-i-Ishhad is silent in this regard as neither in the plaint nor in the alleged notice of Talb-i-shhad his name emerges, rather name of Muhammad Sarwar and Fazal Elahi besides Bashir Ahmad (informer) appear; meaning thereby the statement of P.W.7 is beyond the .pleadings and the same is inadmissible. A further question arises here that right to acquire suit property by exercising right of pre-emption accrues on the date of sale but when at that time the present respondents did not have such right, coupled with above scenario i,e, non- presence of Muhammad Rasheed (P.W.7) at the time of making of Talbi-Muwathibat, the suit ought to have been dismissed on this single score, as making of Talb-i-Muwathibat has not been proved by the respondents/plaintiffs in accordance with law: reliance is placed on Muzaffar Hussain v Mst. Bivi and 7 others (PLD 2012 Lahore 12) Apart from the above, even if it is presumed and admitted for the sake . of arguments that the respondents/plaintiffs have right of pre-emption against the present petitioner, even then non- appearance of the other respondents/plaintiffs except Muhammad Rasheed turns fatal to the respondents/plaintiffs, as right of pre-emption is a personal right, which can be exercised personally, which is missing in this case. In this regard reliance is placed on Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others (2007 CLC 819-Lahore).
In addition to the above, the respondents/plaintiffs have failed to produce Fazal Elahi, before whom allegedly the original pre-emptor performed Talb-i-Muwathibat as his evidence can be termed as that of independent witness because the other witness namely Muhammad Sarwar is legal heir of Muhammad Ramzan the original pre-emptor and is an interested witness; therefore, adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order. 1984 arises 'against the respondents/plaintiffs due to withholding of essential witness that had he been produced, he would not have supported their stance. Reliance is placed on Muhammad .Hassain and others v.
Ehsan Ullah (2008 M LD 382-Lahore).
7. Pursuant to the above discussion as the respondents/plaintiffs have failed to prove performance of Talb-e-Muwathibat as per mandate of law, the question of subsequent talb loses its value and no decree for possession through pre-emption can be passed in their favour. Reliance is placed on Mst. Sahib Jamala v. Fazal Subhan and 11 others PLD 2005 Supreme Court 977).
8. For the foregoing reasons and discussion. it is observed that the learned Courts below have failed to appreciate evidence on record and law on the subject in a true perspective; as such the impugned judgments and decrees being not sustainable in the eye of law while placing reliance on the judgments supra, the civil revision bearing No, 2301 of 2011 is allowed and the impugned judgments and decrees passed by the learned Courts below are set aside, consequent whereof the suit instituted by the respondents/plaintiffs stands dismissed: whereas the connected civil revision bearing No, 2454 of 2011 will follow the result of the instant civil revision. No order as to the costs.