This revision petition is directed against the judgments and decrees dated 07.01.2 011 and 03.05.2014 passed by both the learned Courts below , whereby petitioner 's suit for possession through Preemption and appeal whereof were dismissed inter alia on account of deficiency in the evidence with regard to Talb- i-Ishhad ; hence, this revision petition.
2. I have heard the learned counsel for the petitioner and gone through record of the case.
3. The admitted position of the case is that the postman, who delivered the postal documents upon the respondent - defendant-vendee to prove the factum of Talb-i-Ishhad was not produced , which was mandatory in view of the law laid down in Muhammad Bashir and others vs. Abbas Ali Shah (2007 SCMR 1105), Allah Ditta through L.Rs and others Vs Muhammad Anar (2013 SCMR 866) and Khan Afsar vs. Afsar Khan and others (2015 SCMR 311).
Examining of record reveals that in the written statement the respondents-defendants in reply to para 4 of the plaint have specifically denied the assertion with regard to issuance and service of notice whereas preliminary objection No.4 was taken to the effect that no "Talabs" were made by the plaintif f as per provisions of law hence the suit is liable to be dismissed. The above-noted reply of the respondents in their written statement sufficiently establish that they have specifically refuted petitioner 's assertion with regard to service of notice and performance of Talbs hence in such circumstances Hon'ble Supreme Court held it obligatory on the plaintif f pr-eemptor to prove the sending of notice by leading affirmative evidence, which unquestionably required production and examination of Postman as indispensable. The relevant portion from the case law reported in Allah Ditta case (2013 SCMR 866) is reproduced below:- "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 others v. Abbas Ali Shah (2007 SCMR 1105). The argument 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."
4. In addition to the above, the second attesting witness of talb- i-Ishhad namely Amjad Hussain as mentioned in para No.4 of plaint and also reflecting from the deposition of PW-1 Muhammad Aslam, was not produced in the witness box, which was mandatory under Article 79 of Qanun-e-Shahadat Order , 1984, hence, the suit was liable to be dismissed on this ground being contrary to the provisions of Section 13 of the Punjab Pre-emption Act, 1991 which stipulates the attestation of two truthful witnesses of notice of Talb-i-Ishhad . Reliance in this regard is placed on Akbar Ali v. Muhammad Abdullah (2007 SCMR 1233 ) and Mst. Rooh Afza v. Aurangzeb and others (2015 SCMR 92 ). In the former judgment, it has been observed as under:- "On perusal of above provisions Mahome dan Law as well as of Punjab Pre-emption Act it is clear the demand of Talb-i- Ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness."
However , in the latter referred case-law , it has been held that, "Besides, in our opinion, non-appearance of the other attesting witness of "Talb-i-Ishhad" regarding the exercise of right of pre-emption, by the appellant is also fatal to her case. Moreso, as even if at the relevant time he was in Dubai, he could have come to Pakistan to appear in the witness box in support of his mother's claim. The submission of Mr. Kiyani in this regard with reference to Article 17 of the Qanun-e- Shahadat Order, 1984 has also no relevance, as the said Article of Qanun-e-Shahadat Order, 1984 has not diluted the affect of Article 79 of the said Order, particularly in a suit for pre-emption, which as per legal requirement of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, required attestation of the notice of Talb-i-Ishhad by two truthful witnesses, who could depose as to the same before the Court. The ratio of the case of Abdul Khan (supra) and the case of Muhammad Mal Khan (supra) cited by the learned Advocate Supreme Court for the respondents fully endorses this view."
It is also settled law that no one can be allowed to prove his case beyond the scop e of pleadings as enunciated by honourable Supreme Court in a case reported as Muhammad Wali Khan and another vs. Gul Sarwar Khan and another (PLD 2010 Supreme Court 965) wherein reliance was placed upon the judgments reported as Binayameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336, Mst. Salima Bibi v. Mst. Halima Bibi 1994 SCMR 1858 , Government of West Pakistan (Now Punjab) through Collector , Bahawalpur v. Haji Muhammad PLD 1976 SC 469 and Hakim Ali v. Muhammad Salim and another 1992 SCMR 46 .
5. In view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, the law laid down by august Supreme Court has the binding force, therefore, it is held that proving of talbs is sine qua non to success in a pre- emption case and it is established from record that the plaintif f/petitioner failed to fulfill this obligation. Therefore, I have no option except to conclude that deficiency in evidence led by the plaintif f/petitioner to prove the factum of Talb-i-Ishhad was sufficient reason to non-suit the plaintif f; hence, the learned Courts below have not committed any illegality and irregularity while dismiss ing the suit and appeal of the petitioner/plaintif f. Resultantly , this revision petition fails and dismissed-in-limine .