RASAAL HASAN SYED, J.---The petitioner in this revision petition has impugned the judgment and decree dated 01.12.2010 of learned Addl. District Judge Multan whereby the judgment and decree dated 24.7.2010 of the learned Civil Judge, Multan, dismissing the suit for preemption was affirmed and the appeal of the petitioner was dismissed.
2. The petitioner filed a suit to preempt the sale of land effected through sale-d eed dated 17.12.1999 inter alia claiming that she had superior right of preemption, had allegedly made the requisite Talbs and that she was entitled to preempt the same. Suit was resisted by the respondents claiming that the requisite Talbs were not made, and that the petitioner was not entitled to the relief claimed.
3. After framing of issues and receiving evidence, the learned Civil Judge dismissed the suit vide judgment and decree dated 24.7.2010 inter alia holding that the petitioner could not prove the requisite Talbs and as such her suit was untenable.
4. In appeal the learned Addl. District Judge on in-depth scrutiny of the record, did not find any ground for interference, af firmed the findings on the issues of Talb and in result, dismissed the appeal.
5. Learned counsel for the petitioner argued that the learned courts below have given too much significance to the discrepancies in the evidence which was natural and that the petitioner had successfully proved making Talb-e- Muwathibat as well as Talb-e-Ishhad and that the evidence in this regard was illegally disbelieved and that an issue of superior right of pre-emption was necessary which having not been framed, this fact was not taken note of by the learned courts below though it was a sheer violation of law .
6. On due consideration of the record annexed with this petition it is observed that the petitioner's claim is that she had allegedly acquired knowledge of sale at 6.00 p.m. on 12.3.2000 when the respondent allegedly came to take the possession of the property , and that in the same majlis she allegedly declared her superior right of pre-emption and intention to pre-empt the same, which was followed by a notice of Talb-e-Ishhad dated 15.3.2000 sent through registered AD to the respondent. To the contrary , the respondent's claim was that she was already aware of the sale and that the entire story of having made Talb-e-Muwathibat was self-generated. The learned courts below on due examination of the evidence, noted that the vendor in this case was the real son of the petitioner and they were residing in one house which was 50 ft away from the disputed property . The sale in this case took place on 17.12.1999 while the petitioner's claim of Talb-e-Muwathibat was on 12.3.2000 i.e. approximately three months thereafter . The learned court below therefore, rightly concluded that it was unass umable that the petitioner living with her son who sold the property and a resident of the property 50 ft away from the disputed property , would be ignorant of her own son for about three months. Perusal of the statement of PW.7 corroborates the facts submitted by the learned courts below to disbelieve the plea of Talb-e-Muwathibat on 12.3.2000. Apart from that there were many contradictions in the statements of PWs as noted by the learned Civil Judg e in his judgment which reflects dimly on the credibility of the testimonies and were rightly disbelieved by the learned courts below .
7. Another factor which was also noted by the learned appellate court that the petitioner claimed Talb-e-Muwathibat on 12.3.2000 and the alleged notice of Talb-e-Ishhad on 15.3.2000 but in her statement as PW.7 she disclosed that after the alleged Talb-e-Muwathibat 3 to 4 panchayats were convened to persuade the respondent for the transfer of property which remained unsuccessful and these panchayats were convened for about fifteen days whereafter the petitioner allegedly went to katchery for the issuance of a notice which she admits to have not been thumb- marked or signed by her and of which she was not aware if the other witnesses had also thumb marked or signed the same. In view of her statement of panchayat for fifteen days, the subsequent story of alleged notice of Talb-e- Ishhad within 14 days as required by law , ends in fiasco.
8. The two courts below have, after deeper analysis of the evidence disbelieved the plea of Talb-e-Muwathibat and also the Talb-e-Ishhad ; which findings could not be shown to have been suffering from any misreading or non- reading of the evidence. In the absence of misreading and non-reading of the evidence or jurisdictional error, which is not the case here, any interference, in revisional jurisdiction, in the findings so recorded by the learned courts below is not made which are based on correct analysis of the entire evidence and are in accordance with law .
9. As regards the argument that the issue on the plea of superior right was not framed which allegedly was violation of law, the argument is without substance. At no point of time the petitioner ever applied for amendment of the issue before the trial court nor this question was urged in first appeal at the time of its final hearing. It is a settled rule that where the party fails to claim any issue during the trial, and also fails to urge the same in appeal, the same cannot be permitted at the stage of revision in this court. Reference can be made to the rule laid in "Mehr Din (represented by his Legal Heirs) v. Dr. Bashir Ahmad Khan and 2 others" (1985 SCMR 1). Even otherwise it is a settled rule that despite omission of the court to frame any particular issue, the parties are not denuded of their right to lead evidence on such point and the court could in such circumstances record decision without framing of issues. When the parties being conscious of the, real point have led their respective evidence and no prejudice is caused on account of the omission. Refe rence can be made to the rule in the "The Province of East Pakistan v.
Major Nawab Khawaja Hasan Askari and others" (PLD 1971 SC 82). In "Fazal Muhammad Bhatti v. Mst. Sadeda Akhtar and 2 others " (1993 SCMR 2018 ) it was held as follows: - "The pleadings and the issues as originally framed show that the parties were fully aware what was the subject- matter of controversy and what evidence was to be led by each one. The court did prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non-framing of a specific issues in such circumstances is inconsequential. It was held by this court in Province of East Pakistan v. Major Nawab Khawaja Hasan Askari and others (PLD 1971 SC 82) that if issues are not framed but allegation made in the plaint are challenged in the written statement and the court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal. That has been the established law in the sub-continent as would appear from Sayed Muhammad v . Fateh Muhammad (22 Indian Appeals 4) "
Reference can also be made to "Muhammad and 9 others v. Hasham Ali" (PLD 2003 SC 271). In the present case as is discernable, the evidence clearly indicates that the parties were fully conscious of the points of issue on which the evidence was led, the petitioners claimed superior right of pre-emption on account of the property being joint and claimed to have asserted this. The respondent has also led evidence in defense. Being so, no prejudice could be claimed to have been caused. It is also observed that issue No.11 was framed to the effect "Whether the plaintiff is entitled for the decree of possession through pre-emption as prayed for", which being the comprehensive issue, the petitioner could not possibly object on the plea a any alleged non-framing of issue. In "Mst. Sughran Bibi alias Mehran Bibi v. Asghar Khan and another" (1988 SCMR 4) it was ruled that if no prejudice way caused to the parties due to the framing of an omnibus issue, objection relating to the framing of improper issue, will be of no consequence.
10. In view of the rule supra, the plea raised for the first time before this court is without any substance and is otherwise untenable.
11. Even otherwise, in view of the finding s of the two courts below that the petitioner could not prove the requisite Talbs as envisaged by law, the alleged claim to pre-empt the land would stand extinguished, in view of the rule in "Government of N.W.F.P. through Secretary Law v. Malik Said Kamal Shah " (PLD 1986 SC 360). In result the petitioner cannot possibly claim any prejudice due to the non-framing of any alleged plea of having a superior right to pre-empt.
12. For the reasons above, this revision petition being without merit therefore, stand dismissed.