MUJAHID MUSTAQEEM AHMED, J: Factual matrix giving rise to the instant Civil Revision and necessary for its decision is that suit property measuring 238 Kanal situated in Mouza Bareka Hittar, Tehsil Minchinabad, District Bahawalnagar was owned by Mst.Taj Bibi. Noor Muhammad and Ahmad Ali/petitioners filed suit for specific performance of contract, which was decreed in their faovour by Civil Court and subsequently mutation of sale No.527, dated 30.11.1989 (Exh.P5) was attested in their favour in consideration of Rs.100,000/-. Falak Sher respondent filed pre-emption suit against this transaction on the qualification of Shafi Sharik, Shafi Khalit and Shafi-a Jar. He further alleged that approximately ten days prior to the institution of the suit, he came to know about the sale under pre-emption and in presence of witnesses (without naming them) declared his right of pre-emption and informed the present petitioners No.1 & 2/vendees about making of Talb-a-Muwathibat and thereafter performed Talb-i-Ishhad. (The mode and manner of making it not given) Sale price of suit property was admitted by him. Petitioner No.1 and 2/vendees denied the factual controversy and claimed that the suit was barred by limitation, the pre-emptor has no superior right of pre-emption and he failed to make Talabs in accordance with law.
2. To resolve the controversy between the parties,the learned Civil Judge framed ten issues and thereafter recorded evidence. During pendency of suit, Noor Muhammad-petitioner transferred his share in suit property vide mutation No.306 sanctioned in favour of his daugher Mst.Safia Bibi-petitioner No.3 (wife of petitioner No.2) and as such she was also impleaded in the array of defendants.
3. Learned Civil Judge vide impugned judgment and decree dated 28.06.2001, decreed the suit in favour of respondent to the extent of 119 Kanal land and to the extent of remaining suit property pre-emption suit was dismissed. Both the parties filed appeals before the learned Additional District .Judge, who vide judgment dated 11.03.2003, accepted the appeal of respondent and decreed the suit in toto and cross appeal filed by petitioners/vendees was dismissed. Feeling aggrieved by the impugned judgments and decrees, present petitioners assailed the same through the instant civil revision, mainly on the grounds that the respondent/pre-emptor after consolidation of Mouza was not having any pre-emption rights, Talabs were not made according to Islamic Law of pre-emption. This revision petition was accepted vide judgment of this Court dated 03.06.2010 and impugned judgments and decrees were set aside and the pre-emption suit was dismissed. Respondent filed C.P.L.A.No.252-L of 2010, before Apex Supreme Court of Pakistan and the same was allowed vide orders dated 10.03.2016 in following terms:- "It is conceded by Mian Allah Nawaz, learned counsel for the respondents, that the question of limitation has been erroneously dealt with and decided by the High Court in the present matter through the impugned judgment, however, he states that the revision petition filed by the respondents was liable to be allowed on the ground of Talbs because the appellants had failed to prove Talbs in accordance with the relevant law because the suit at that time was filed during the interregnum and Islamic principles of Talbs were attracted.
Thus, both the learned counsel for the parties have no objection for the setting aside of the impugned judgment and remanding of the matter to the learned High Court for decision afresh of the civil revision, inter alia, on the question of Talbs. Resultantly, the instant appeal is allowed, the impugned judgment is set aside and the matter is remanded to the learned High Court for decision afresh of the civil revision."
4. Arguments heard. Record perused.
5. It is an admitted fact that the respondent /pre emptor was co-sharer in suit property but during pendency of the suit, consolidation proceedings were conducted in the Mouza and land of respondent was separated from the land of present petitioners. Falak Sher as PW-4, during cross examination has conceded that after consolidation et Mouza, his land and of petitioners/vendees was included in Wanda No.53 and 63 respectively. It is well settled law that a preemptor in a suit must have pre-emption right at the time of sale, institution of suit and at the time of passing final decree. Thus, at the stage of final decision of pre emption suit, the respondent has no pre-emption right on the basis of co-sharer. Counsel for respondent has made an unsuccessful attempt to convince the Court that the respondent was still owner in revenue estate, whereas petitioners/vandees have no such qualification being strangers, as such on this qualification also respondent is entitled to a pre-emption decree. No such qualification has been pleaded in plaint, so the respondent cannot be permitted to prove the facts not pleaded in pleadings. Reliance is placed on 2016 YLR 423 Lahore (D.B.) Lahore `Qasim Rafigue Versus Muhammad Rafique through L.Rs. and others'. As such the findings of learned Courts below that respondent has pre-emption right is against record and consequently their findings on issue No.7 are reversed.
6. The pre-emption suit was filed on 30.01.1990 in respect of mutation of sale No.527, dated 30.11.1989. In the above referred remand order passed by the Apex Supreme Court of Pakistan, the legal question of limitation of pre-emption suit filed during interregnum period (1-8-1986 to 28-3-1990) has been settled as one year. As such the suit filed by respondent/pre-emptor is well in time. Findings of Courts below on issue No. L are affirmed.
7. As noticed supra in para No.4 of pre-emption suit, respondent has claimed that he came to know about sale transaction approximately ten days before filing of the suit and he declared his right of pre emption in presence of witnesses and then apprised the petitioners/vendees about making of Talb-i-muwathibat and thereafter he made Ta.lb-i-ishhad. In the plaint, the respondent/pre-emptor has failed to mention date, time and place and name of informer of sale. He has also not given the names of the witnesses before whom he made Talb-i-muwathibat. He has also not detailed in plaint the mode and manner of making Talb-i-ishhad. Now it is well settled law that a party cannot be permitted to lead evidence regarding a material fact until and unless it has laid a foundation in its pleadings. The purpose of this rule is that the other party be not taken by surprise and it should know before hand the version of his opponent. In 1996 SCMR 336 `Binyameen and 3 others Versus Chaudhal Hakim and another' it has been laid down that as per practice and procedure, no evidence can be led or looked in support of any plea which had not been taken in pleadings. Similar view has been taken in 2016 YLR 539 Lahore `Mst. Hayatan Mai Versus Mst. Aziz Mai alias Azizi through L.Rs.'
8. Admittedly, the pre-emption suit was filed by the respondent during interregnum period commencing from 01.08.1986 till 28.03.1990. In recent precedent 2016 SCMR 1836 `Mushtaq Ali Versus Multan Khan and others', it has been ].aid down that during the interregnum period the classic Islamic law governed the right of pre-emption.
So, rule of specification of particulars of Talb-i-Muwathibat under the classic Islamic law applied to a pre- emption suit filed during the interregnum period. As such it is crystal clear that the respondent/ pre-emptor has failed to give the requisite details of making Talb-i-Muwathibat and Talb i-Ishhad. It is settled law that facts which are not pleaded cannot be proved and if any evidence is brought on record, the same cannot, be read. Vide mutation of sale No.526 (Exh.P4) attested on 30.11.1989 respondent purchased land in disputed Khata from Mst. Taj Bibi-vendor on the basis of a decree passed by Civil Court. Whereas vide mutation of sale No.527 attested on 30.11.1989, the petitioners No.1 and 2 have purchased the suit property from same vendor. Both the mutations were sanctioned on one and the same date and in same meeting. The petitioners No.1 and 2 and respondent got attested these mutations on the basis of protracted civil litigation.
The respondent as PW-4 in rebuttal evidence admitted his presence before revenue officer. He also conceded that he was in possession of suit property since long. As such the plea of respondent that approximately ten days before filing of suit, he came to know about sale under pre-emption is after thought, based on concoction and not believable as gospel truth. PW-1 Muhammad Ali, claimed that he has informed respondent about sale, when he (PW 4/respondent) alongwith PW-2 Abdur Razaq, PW-3 Khadim Hussain visited his residence and respondent expressed his intention to file pre-emption suit. Thereafter, on next day they visited residence of petitioners/vendees to make Talb-i-Ishhad. PW-2 to PW-4 have stated that on very date of making Talb-i- Muwathibat, Talb-i-ishhad was made. As such the version of PWs regarding mode and manner of making Talbs is contradictory to each other and thus not believable. So it is fully established that respondent/pre-emptor has failed to timely make necessary Talbs under Classic Islamic Law.
Therefore, the courts below have wrongly decided issue No.5 in favour of respondent. Their findings are based on misreading and non-reading of evidence and as such not sustainable. Consequently, the findings of both the Courts below on this issue are reversed.
9. As a sequel of above discussion, the petitioners have succeeded to establish that at the crucial third stage of pre-emption suit :Le its final adjudication, the respondent/pre-emptor has no pre-emptive right due to consolidation proceedings and separation of land of both the contesting parties. The petitioners have also succeeded to prove that the respondent has not promptly and timely made Talbs in accordance with Islamic Law'. As such, this Civil Revision is allowed, the impugned judgments and decrees dated 28.06.2001 and 11.03.2003 passed by the learned Civil Judge Ist Class, Minchinabad and learned Additional District Judge, Bahawalnagar respectively are set aside and the pre-emption suit filed by the respondent stands dismissed.