' CH. MUHAMMAD MASOOD JAHANGIR, J.---Mst. Salma Bibi, real sister of respondent/pre-emptor, transferred the subject property to present petitioner/ vendee by means of oral sale mutation No,2083 dated 14.01.2004, which was pirated by the respondent through institution of a suit for pre- emption while claiming his superior right as well as performance of requisite Talbs, it was resisted by the petitioner while maintaining that neither the former had superior preemptive right nor he performed the requisite demands as per law. Both the parties during the trial adduced their evidence in pros and cons and ultimately the learned Trial Court while appreciating it decreed the suit through judgment dated 02.03.2009. However, appeal of the petitioner was partially accepted by learned Additional District Judge through judgment and decree dated 10.11.2010 while observing that he was already co-owner in the suit Khata and according to the philosophy laid down in section 20 of the Punjab Pre-emption Act, 1991 the suit property was equally shared among the parties to the lis. The sharing was not challenged any further by respondent through appeal or cross-objections, however findings returned by the two courts below on issue No,4 qua performance of requisite Talbs were attacked by the petitioner by filing the instant civil revision.
2. Inaugurally, it was argued by Mr. Muhammad Yasin Hatif, Advocate, learned counsel for the petitioner that the vendor was the real sister of the respondent, who had complete knowledge of the attestation of mutation dated 14.01.2004 from the day of its inception, but he concocted the false story that on 25.02.2004 it was communicated to him for the first time, which was not believable and the courts below omitted to consider it in its true perspective. He emphasized with great vehemence that respondent also failed to examine/summon the informant and in absence of statement of star witness, it was sine qua non for the courts below to draw adverse inference against the respondent, but they failed to apply the correct law. Mr. Hatif, further added that it was imperative upon the pre-emptor to prove that registered post A.D. Containing notice Talb-i-Ishhad was actually served upon the petitioner and to prove the same acknowledgment due card was to be brought on the suit file, which admittedly was not, but both the courts below without considering the dicta laid down by the apex Court in his regard main erred in law while answering the issue under discussion in favour of respondent.
3. On his turn Mr. Muhammad Hussain Chotya, Advocate, learned counsel for respondent while supporting the impugned judgments replied that the respondent by adducing quantitative and qualitative evidence fully proved the fulfillment of the requisite demands; that the concurrent findings of the courts below on issue No,4 were based on well appreciation of evidence in its true perspective, which could not be disturbed by this Court while invoking jurisdiction under section 115 of the Code of Civil Procedure, 1908. He submitted that informer of the sale was petitioner himself and if he was examined, he being adversary definitely might have deposed against the respondent and in such a situation, a risk could not be taken and the respondent was justified in not summoning him, who through other affirmative evidence succeeded to establish the performance of first demand. Mr. Chotya further added that the Postman concerned appeared before the learned Trial Court as PW2 and proved explicitly that registered post containing notice Talb-i- Ishhad was served upon the vendee. He today while placing on record attested copies of list of documents and reliance appended by the respondent with his plaint on the suit file tried to convince that acknowledgment due card was placed on the suit file, but due to some omission, the same could not be tendered exhibited in the statement of Postman and on the basis of said lapse the pre-emptor could not be non-suited. He lastly worded that the PWs were not subjected to cross-examination regarding portions of their statements-in-chief, wherein they specifically deposed that Talb-i-Muwathibat and Talb-i-Ishhad were performed by respondent and the courts below were perfect while deeming such uncross-examined portions of statements-in-chief of PWs as admitted on behalf of the petitioner while rendering findings of issue No,4.
4. Verily, the vendor was the real sister of respondent, but surprisingly he did not disclose this close relationship in the body of the plaint, whereas petitioner in his written statement unequivocally pleaded that at the time of attestation of mutation the respondent was available along with his sister, however, when respondent appeared as PW6, he, for the first time, conceded his relationship with the executant of the mutation under pre-emption, but he nowhere asserted that either relations between them at that relevant point of time were not cordial that he was not available in the village when sale was sanctioned. The story launched by respondent about gaining knowledge of the disputed sale and then fulfillment of first demand after a period of more than one month of the transaction settled by his sister appears to be fictitious and concocted. A prudent person cannot believe that sister and brother living in the same vicinity having harmonial relation and one of them could remain unlearned qua the transaction of part of holding falling in common khewat, the possession of which also changed hands forthwith. In such like situation, the preemptor being brother of the vendor could be presumed to have complete knowledge of sale transaction from its commencement, but there was no evidence that the former had ever asked the latter to sell the suit land to him, which shows that there was a complete understanding between them and the property was sold out to an alien so that transaction could be pirated to blackmail him. In such situation, the argument of learned counsel for the petitioner that the disputed sale was already in the knowledge of the respondent since its genesis has force being convincible. The identical proposition has already been clinched by the apex Court in cases reported as Naseer Ahmad v.
Arshad Ahmad (PLD 1984 SC 403), Abdul Hameed and others v. Muzamil Haq and others (2005 SCM R 895) and Hassan Din and others v. Manzoor Hussain and others (2010 SCM R 810).
5. As per contents of para-4 of the plaint it was the stance of respondent that on 25.02.2004 at 10.00 a.m. He along with three witnesses was present in his field falling in square No,76 where the petitioner and Muhammad Baqar, husband of the vendor/brother-in-law of the respondent, were raising boundary wall and on inquiry the petitioner replied that he had purchased it, but none of the tattler was summoned to prove the said story. Under the mandate of the judgments of the Superior Courts in cases Mst. Zahida Perveen v. Mst. Perveen Akhtar (2012 CLC 1497), Noor Jan v.
Abdul Deyan and others (2014 M LD 891) and Abdul Rehman v. Haji Ghazan Khan (2007 SCM R 1491) it was made imperative upon the pre-emptor to produce the person, who had imported the transaction, but the best evidence in spite of availability was withheld without any justification. Mr. Chotya, learned counsel for respondent on having been faced with the situation that in absence of statement of informant, who was the source of fulfillment of first demand, it cannot be concluded that pre-emptor succeeded to prove its performance as per, law, he without wasting any time responded that if any of the informants was summoned, he being inimical might have deposed against the respondent is not tenable. It cannot be presumed that a witness under the oath could make a wrong statement, but for the sake of arguments if submission of learned counsel is taken to be correct, even then the petitioner or the husband of the vendor could be summoned for examination as PW and if they had made any adverse statement against the respondent, then he had the right for declaring him hostile and through conducting cross-examination the truth could be elucidated. Under Article 129 illustration (g) of the Qanun-e-Shahadat Order, 1984 the Courts were bound to draw adverse inference against the respondent for withholding the direct affirmative evidence despite its availability. It is surprising that petitioner while appearing as DW1 categorically stated that transaction of sale was effected in presence of respondent, who never performed the demands, but despite his saying so he was not suggested during cross- examination that on his information the first demand was fulfilled. Moreover, respondent could not give specific venue in the plaint where it was performed, but he vaguely pleaded that it was pronounced in Square No,76. No doubt, being PW, respondent worded that Talb-i-Muwathibat was accomplished in Killa No,12 of the said square but it being improvement from the contents of plaint was to be simply ignored.
6. The other damaging factor of the case was that it was nowhere asserted by respondent in his plaint that notice Talb-iIshhad was received by the petitioner. However, while appearing in the witness-box, he categorically asserted that it was served on the addressee on 27.02.2004 in the following words:- {{URDU TEXT}} ' The respondent in his support examined the Postman as PW2, who in his statement-in-chief deposed altogether differently that the post was delivered by him to the petitioner on 28.02.2004.
The difference of one complete day qua receipt of notice Talb-i-Ishhad by the petitioner as per statements of PW2 and 6 made the stance of respondent skeptical. The A.D. Card was neither put to the Postman nor got exhibited in his statement, who during the cross-examination conceded that the A.D. Card was not returned by him but it was retained by him which was still available at his residence. For ready reference, the complete statement of the Postman is reproduced hereunder:-- {{URDU TEXT}} It is strange that the said card could not be produced on the suit file despite the fact that it remained pending before the learned Trial Court for another 3-1/2 years after recording statement of the postman, but no effort was made to direct him to produce it, which was lacking on the suit file and in absence of it, it was not just for the Courts below to conclude that respondent succeeded to establish the receipt of Notice by the petitioner, who otherwise was denying that it was not served upon him. After the analysis of cross-examination of PW2, the argument of Mr. Chotya that original acknowledgment due card was already brought on the suit file, but due to some omission the same could not be exhibited has been falsified. The attested copies of list of documents as well as reliance are also silent that the original A.D. Card was brought on the suit file.
However, on having been faced with the situation that if A.D. Card was available on suit file, then why attested copy of the same along with afore referred attested copies of the lists could not be brought on the file in hand, the learned counsel for respondent replied that as the same was not exhibited, its attested copy was not issued is not believable on the counts; firstly, had the A.D. Card was available on the suit file and the respondent applied for its attested copy, the Copying Agency might have issued it or would have refused to deliver its copy due to its non-signing by the Judicial Officer or being non-exhibited document by endorsing a report on the "Swal Form", secondly, deposition of the Postman that the A.D. Card was available at his residence, there left nothing but to hold that the document was deliberately not brought on the suit file, which was mandatory in view of provisions of section 13 of the Punjab Pre-emption Act, 1991 and such non-compliance thereof was fatal for the respondent, but Courts below erred in law while ignoring this lapse on the part of the respondent as per dicta laid down by the Superior Courts in the cases `Muhammad Hafeez through attorney v. Muhammad Riaz' (2015 YLR 229), Talak Niaz v. Amal Din and another'
(2016 YLR 2047), `Mst. Razia Begum v. Adam Khan and another (2016 YLR 172) and 'Aqal Zaman and others v. Balqiat Khan and others' (2016 M LD 245).
7. Undisputedly, it is well established principle of law that if a witness was not subjected to cross- examination regarding a fact deposed in his examination-in-chief, then it would be deemed to be admitted. In the case in hand, Muhammad Intizar (PW5) and Muhammad Yousaf (PW6) provided the same detail qua fulfillment of Talb-i-Muwathibat in their deposition in line with the contents of the plaint, who were totally not subjected to cross-examination to this part of their statements-in- chief and there might have some force in the argument of learned counsel for the respondent that the courts below were perfect while admitting their statements on the part of the petitioner, but each case has to be dealt with keeping in view peculiar facts and circumstances thereof. The onus of issue qua performance of demands is always placed on the shoulders of the pre-emptor and it is sine qua non for him to discharge the same as per its requirement even if the rival party might not be in picture. Both the courts below erred in law while giving undue weight to the lapse on the part of learned counsel for the petitioner, who failed to cross-examine the PWs on such portions of their statements-in-chief. Moreover, the statements-in-chief of the said PWs are totally silent to extent that second demand was fulfilled through delivery of notice by the respondent. The courts below were required to decide the lis on its own merits as per law and when law requires specific act was to be done in a particular manner, then the pre-emptor was required to perform the same in such a manner, but in the case in hand as observed supra, the respondent failed to cross the barrier of Talbs.
8. The accumulative effect of the appreciation of evidence and its discussion is that respondent miserably failed to discharge the onus of issue No,4 and both the courts below failed to return its just and fair findings, which being illegal, unlawful and against the material on record cannot be sustained and thus are reversed. Despite the fact that the respondent was also co-sharer in the joint holding along with petitioner, but his suit could not be decreed as he remained unsuccessful to prove the requisite Talbs. Although the concurrent findings recorded by the courts below are not interfered, but in the instant case, it has been proved that the said concurrent findings were suffering from misreading and non-reading of the material on the record and in such circumstances this Court is very much competent to interfere therewith in the exercise of revisional jurisdiction, which is meant to correct errors of law committed by the subordinate judiciary in the discharge of their judicial functions.
9. Resultantly, this petition is allowed, the judgments and decrees of the courts below are hereby set aside and suit of the respondent is dismissed with no order as to cost.