Through this civil revision the petitioners have challenged the judgment & decree dated 24.11.2007, passed by the learned Civil Judge, Taunsa Sharif who dismissed the suit for per-emption filed by the petitioners and the judgment & decree dated 04.05.2010, passed by the learned Additional District Judge, Taunsa Sharif, who dismissed the appeal of the petitioners.
2. Brief facts of the case are that the predecessor-in-intercst of the petitioners/plaintif fs namely Ghulam All filed a suit for possession through pre-emption against Khuda Bukhsh, predecessor-in-interest of the respondents/defendants, in respect of land measuring 06 Kanal 15 Marla, fully described in headnote of the plaint which was hotly contested by the respondents/defendants. The learned trial Court framed issues, recorded pro and contra evidence of the parties and finally dismissed the suit vide judgment & decree dated 24.11.2007. The petitioners filed an appeal which was also dismissed by the learned appellate Court vide judgment & decree dated 04.05.2010. Hence, this civil revision.
3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
4. Perusal of Paragraph No. 5 of the plaint shows that the petitioner/plaintif f stated that on 01.10.1997 at about 03:00 in evening, he alongwith his son was sitting in his house, when Riaz Ahma d informed about the impugned transaction whereupon he stated that he would file suit for pre-emption. To substantiate the contents of the plaint, Muhammad Zafar (P.W.1) stated that on 1.10.1997, Riaz Ahmad informed about the impugned transaction upon which his father (plaintif f) announced to use his pre-emption right and subsequentl y his father sent notice of Talb-i- Ishhad in the presence of the witnesses. P.W.1 did not mention the names of the witnesses of the notice of Talb-i- Ishhad. Riaz Ahmed, informer appeared as P.W.2. He stated that on 1.10.1997 he went to Partwari who informed that land in the said khata had been sold and on his return home then he informed his father regarding transaction.
In cross-examination, he stated that he informed his father about the transaction in kitchen. Allah Bukhsh, petitioner/plaintif f, while appearing as P.W.3 reiterated the contents of the plaint. It was the stance of the petitioner/plaintif f that he was sitting in his bethak, when Riaz Ahmad imparted information about the impugned transaction whereas, Riaz Ahmad, during his cross-examination, deposed in his statement that his father (petitioner/plaintif f) was present in kitchen when he informed him about the transaction. The above material contradictions in the statements of the P.Ws impressed hard to observe that', the petitioner/plaintif f had failed to prove the Talb-i-Muwathibat through any believable concrete, solid and unimpeachable evidence.
5. The appellant was also under mandatory legal obligation to prove the Talb-i-Ishhad by producing the witnesses of the notice as well as the service of notice as per law but he had not produc ed the postman in evidence for proving the service of notice of Talb-i-Ishhad upon the respondent/defendant, as such, the appellant/plaintif f had failed to prove the service of notice of Talb-i-Ishhad as required under Section 13(3) of the Punjab Pre-emption Act, 1991 and non-compliance of above provision of law vitiates the pre-emptory right of the appellant. As such, the appellant has failed to prove the service of notice upon the respondent/defendant through trustworthy and concrete evidence. Reliance is placed on the case of Allah Ditta through. ERs and others vs. Muhammad Anar (2013 SCMR 866 ), relevant portion whereof is reproduced as under: "We have heard learned counsel for the parties and find vital discrepancy in the statements of P.W.1, P.W.2 and P.W.3 particularly , P.W.1 and P.W.2. P.W.2 stated that the disclosure of the sale of suit land was made to them while the plaintif f was sitting inside the shop of Aziz, whereas the informer who is the son of the pre-emptor , P.W.3 Muhammad Rafique, has contradicted the above and in unequivocal, clear and unambiguous terms stated that they were sitting outside the shop. This was a material discrepancy but the learn ed Appellate Court had failed to notice the same and it has also been overlooked by the learned Revisional Court. 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 appellant while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintif f was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintif f and as the appellant had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney , it was obligatory on the plaintif f-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 above view has been reiterated by the Hon'ble Supreme Court of Pakistan in recent judgment cited as Sultan vs. Noor Asghar (2020 SCMR 682). Even otherwise, the petitioner/plaintif f also filed suit for specific performance against the respondent/defendant regard ing the suit land and in the presence of said suit, instant suit for pre- emption is not maintainable.
6. It also transpires from the record that the documentary evidence (Exh.P .2 to Exh.P.15) has been produced in trial proceedings by the learned counsel for the petitioners/plaintif fs in his statement which is not a valid tender of the documents whereas law requires that the documents relied upon or on the basis of which the case has been filed, should be produced in the evidence by party itself and a fair opportunity should be given to the opposite party to cross-examine the same, as such, the documents produced by the petitioners' counsel cannot be relied upon as valid piece of evidence and ordinarily such documents are excluded from taking into consideration. Reliance is placed on the cases titled of Mst. Hameeda Begum & Others vs. Mst. Irshad Begum & Others (2007 SCMR 996), Federation of Pakistan through Secretary Ministry of Defence & Another vs. Jaffar Khan & Others (PLD 2010 SC 604) and Province of the Punjab through Collector , Sheikhupura & Others vs. Syed Ghazanfar Ali Shah & Others ( 2017 SCMR 172 ).
7. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity , misreading and non-reading of evidence in the impugned judgments & decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469 ).
9. Resultantly , this civil revision being devoid of any merit is hereby dismissed with no order as to costs.