SYED ARSHAD ALI, J.- Impugned herein is the judgment of learned Additional District Judge/Izafi Zila Qazi Buner at Dagger dated 02.12.2010, whereby the learned appellate Court had dismissed the appeal of the present petitioners which was filed by them against the judgment and decree of the trial Court dated 18.12.2009, decreeing the suit of the plaintiff/ respondent for possession of the suit property on the basis of his right of pre-emption.
2. Precisely stated facts of the case are that on 08.02.2001 the plaintif f/respondent had filed a suit for possession of the land measuring 17 kanals 3 marlas through pre-emption.
3. On being noticed, the defendants/pet itioners appeared and contested the suit in their written statement on various factual and legal issues. The learned trial Court had framed as many as 10 issues from divergent pleadings of the parties, allowed the parties to produce their respective evidence. Thereafter , the suit of the plaintif f/respondent was dismissed by the trial Court vide judgment and decree dated 02.10.2004 wherein it was held that the impugned transaction was an exchange and not a sale.
4. The said judgment and decree of the trial Court was challenged before the appellate Court and the learned appellate Court vide judgment and decree dated 14.01.2006 upheld the judgment and decree of the trial Court.
The said judgments and decrees of both the Courts below were challenged before this Court through C.R. No. 41 of 2006. This Court through judgment dated 09.10.2009 had accepted the said revision petition and remanded the case to the trial Court for rendering its findings on all the issues. In the said judgment, the assertion of the present petitioners that indeed the impugned transaction was a sale and not an exchange was accepted.
5. After remand of the case, the learned trial Court through the impugned judgment and decree dated 18.12.2009 had decreed the suit of the plaintiff/respondent, which was challenged through civil appeal No. 21/13 of 2010 before the learned appellate Court. The learned appellate Court through the judgment and decree dated 02.12.2010 had dismissed the appeal. Hence, the present petition.
6. Arguments heard and record of the case was perused.
7. Muhammad Ghamash, the plaintiff/respondent in his suit has claimed that the impugned transaction was indeed a sale and it was wrongly mentioned to be an exchange. He further claimed to be enjoying superior rights of preferential purchase and has also performed Talb-e-Muwathibat' on 31.01.2001 on Wednesday at Isha Wela' when he was informed about the impugned transaction by Bakht Zaman, PW-4, the informer in presence of Gul Rashad, PW-5 and Tawab. Later, on 01.02.2001 he obtained the attested copy of the mutation and on the following day i.e. 02.02.2001 in presence of witnesses Kamal Shah son of Sarwar Shah, Gul Rashad son of Baber, PW-5, Bakht Zaman, PW-4 and Tawab sent the notice of `Talb-e- Ishhad through Registered Envelope on the addresses of the present defendants/petitioners at Malaysia as well as at the local place of their residence.
8. In support of his claim, the plaintif f himself as PW-3 and has also produced Bakht Zaman as PW-4, Gul Rashad as PW-5 and the postman Abdur Rashid as PW-6. The close perusal of the testim ony of the aforesaid witnesses would show that the findings of both the Courts below regarding the fact that the plaintif f had performed Talb-e- Muwathibat' and had also sent the notice of `Talb-e-Ishhad to the petitioners/defendants are based on correct appreciation of evidence.
9. However, the main issue which escaped the attention of both the Courts below is as to whether the plaintiff has produced any evidence that the notice of `Talb-e-Ishhad' was served upon the defendants. In this regard, PW-4 and PW-5 have stated that in their presence the notice was drafted and then sent at the addresses of the defendants/petitioners. The postman PW-6 has produced the record and has stated that the said notice was issued from the post office at the addresses of the defendants along with registered A.D. However, the plaintiff has neither produced the said registered A.D. before the Court nor the postman who had actually delivered the said postal envelopes on the defendants. Indeed, the defendants had denied in their written statement to have received the notice of `Tall-e-Ishhad. Therefore, the plaintiff was required to establish that the said notices were served upon the defendants.
10. It is by now settled law that in order to prove that the notices were actually received by the defendants, the plaintiffs were required to produce the postman concerned, who have actually delivered the notice. Non- production of the said witness was held by the august Supreme Court of Pakistan in "Allah Ditta through LRs and others 'vs Muhammad Anar (2013 SCMR 866)" as fatal to the case of pre-emptor. The relevant findings of the august Supreme Court of Pakistan in the above-referred judgment are reproduced as under:- " 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 other v.
Abbbas All Shah (2007SCMR 1105). The arguments 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."
The said judgment was then re-affirmed by the august Supreme Court of Pakistan in "Dayam Khan and others v/s Muslim Khan (2015 SCMR 222)" and "Khan Afsar v/s Afsar Khan and others "2015 SCMR 311".
11. The plaintif f has also failed to place on record the acknowledgement due, which he had allegedly sent along with the registered envelope. Therefore, when the plaintiff has failed to perform Talb-e-Ishhad' in the manner and mode as provided under the law laid down by the august Supreme Court of Pakistan then the obvious result would be that the suit of the pre-emptor must fail despite the fact that the plaintiff has established the performance of Talb-e-Muwathibat' and sending of the notice of `Talb-e-Ishhad.
12. In view of the above, this petition is allowed and the suit of the respondent/plaintif f for possession through pre- emption is dismissed.