This revision petition is directed against the concurrent findings of fact recorded by both the learned Courts below , whereby the suit instituted by the respondent-plaintif f was decreed vide judgment and decree dated 22.04.2009 and appeal whereof was dismissed by the learned lower Appellate Court vide judgment and decree dated 03.10.2012; hence, this revision petition.
2. At the very outset, learned counsel for the petitioners assailed the judgments of learned Courts below mainly on the ground that the respondent had not produced the Postman, which is sine qua non to prove the factum of Talb-i- Ishhad . He has placed reliance on 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 Dayam Khan and others vs. Muslim Khan (2015 SCMR 222). He maintained that the decree impugned being contrary to the ratio laid down in the case-law , referred supra, is not sustainable in the eye of law and is liable to be set-aside on this score alone.
3. On the other hand, learned counsel for the respondent while relying on Ghulam Abbas and another vs. Manzoor Ahmad and another (2008 SCMR 1366 ), Muhammad Tariq and 4 others vs. Asif Javed and another (2009 SCMR 240), Muhammad Yousaf vs. Ghulam Muhammad and others (2002 CLR 558), Tajammal Hussain Khan and 3 others vs. Allah Ditta and another (2003 MLD 14), Umar Khan vs. Abdul Ghaf far (2003 CLC 838), Yar Muhammad Khan vs. Bashir Ahmad (NLR 2004 Civil 32), Humayun Naseer and 3 others vs. Muhammad Saeed Akhtar and others (2007 CLR 1430 ) and Syed Zafar Ali Shah vs. Fazal Shah and others (NLR 1984 Civil 20) submits that the notice was dispatched at the permanent address given in the sale deed as well as temporary address of the petitioners vendees at Dubai; that the notice sent at permanent address received back with a report of petitioners' absence and the same documents i.e. Acknowledgment Due, Postal Receipt and envelope were tendered in evidence, which were opened and notice was also exhibited confirming Talb-i Muwathibat. In the presence of these documents, when the petitioners-vendees have not specifically denied the service of notice in their written statement as evasive denial is not denial in the eye of law, hence, there was no need to produce the Postman.
Even otherwise, Full Bench of apex Court has accepted sending of notice at the permanent address of the vendees as suf ficient compliance of Section 13 of the Punjab Pre-emption Act, 1991.
4. I have examined record of the case with able assistance of the learned counsel for the parties and also considered the arguments, addressed by them.
5. It is an admitted fact that the respondent-plaintif f had dispatched the notices to the petitioners-vendees at their permanent and temporary addresses, however , the Postman, who claimed to have reached the destination wherefrom he acquired the knowledge, as mentioned in the Acknowledgment Due and envelope, returned the same with a report that the vendees-petitioners were not residing at the said address, rather they were living abroad (Dubai). This fact has to be estab lished by the respondent-plaintif f by producing the Postman, as held by the august Supreme Court in its latest pronouncements i.e. Allah Ditta through L.Rs. and others vs. Muhammad Anar (2013 SCMR 866) and Dayam Khan and others vs. Muslim Khan (2015 SCMR 222). Learned counsel representing the petitioners tried to wriggle-out from this situation by elaboratin g his contention that since the petitioners-vendees had not denied the factum of notice of Talb-i-Ishhad in a specific manner in their written statement , therefore, there was no occasion for the respondent-preemptor to produce the Postman as reiterated in reported judgments relied upon by the respondent-preemptor , as it was the condition precedent that in case of specific denial in the written statement, the Postman is required to be produced. This contention has no substance inasmuch as petitioner No.1-vendee had appeared as DW-1 and categorically denied in his testimony regarding issuance of notice, service of notice and signature appearing on the Acknowledgment Due, if any. In that situation, the respondent-plaintif f, as held by the Hon'ble Supreme Court, had to produce the Postman. In this view of the matter , non-production of Postman caused serious prejudice to the case of the respondent-plaintif f, as it was the Postman, who was the witness to prove those documents and his report.
6. In sequel to the above, since the deficiency in the shape of evidence of Postman is not curable, hence, respondent' s right to pre-empt the suit property stood extinguished. Resultantly, this revision petition is allowed and the concurrent findings of fact recorded by both the learned Courts below vide their judgments & decrees impugned, are hereby set-aside. As a consequence whereof, the suit of the respondent-plaintiff stands dismissed. No order as to costs.