MUHAMMAD AMEER BHA TTI, J.--- This revision petition is directed against the judgment and decree dated 16.06.2010 passed by the learned Additio nal District Judge, Depalpur , District Okar a. whereby the appeal preferred by the respondents stood accepted and in consequence whereof the judgment & decree dated 23.10.2008 of the learned trial Court decreeing petitioner's suit, was set-aside with the result that the suit was dismissed; hence, this revision petition:
2. The facts of the case need not to be given in detail as the same have adequatel y been incorporated in para 2 of the judgment of the learned first Appellate Court. However , the main thrust of the arguments of the learned counsel for the petitioner is with regard to petitioner's superior right of pre-emption qua the respondents inasmuch as the sold land to the respondents is adjacent to petitioner's land, which is irrigated from same water course. Conversely , learned counsel for the respondents contended that besides the requirement of law for performance of Talbs has not been fulfilled, the petitioner has also failed to establish superior right of pre-emption qua the respondents, therefore, this petition merits dismissal.
3. I have heard the learned counsel for the parties and examined record of the case with their assistance.
4. It is well settled law that to get a decree in pre-emption suit, it is always imperative for pre-emptor to prove the component of talbs successfully by leadin g affirmative evidence irrespective of the fact that it was challenged or not as performance of talbs in accordance with law is sine qua non to claim decree in a suit for pre-emption. Mere proving his superior right is not enough/suf ficient/or relevant to claim decree in a pre-emption suit unless he proves the performance of talbs in accordance with law, therefore, I conclude that on acco unt of the following defects and deficiency in evidence for performance of talbs, suit of the plaintif f-petitioner cannot be considered to have any substance for its decree, hence liable to be dismissed:-
(i) There is no denial of the fact that regis try containing notices of Talb-i-Ishhad was dispatched at correct address of the respondents through registered post A.D. (Ex.P-1 to ExP-3) under acknowledgement due (Exh.P-7 to Ex.P- 9) to the three vendees independently but admittedly (reflecting from Exhs.P-1 to P-9, which bore the signatures of Amjad Iqbal/respondent No. 1) delivered to one of the vendee respondent No. 1-Amjad lqbal brother of respondents No. 2 & 3, who while appearing in the witness box as DW-1 although deposed that he did not receive the notices but the fact remains that the notices did not reach respondents No.2 & 3-vendees-respondents, hence, the service of respondents No. 2 & 3 was not effected personally which was mand atory to avail the right of Talb-i- Khasoomat and deficiency in this regard entails dismissal of suit as declared fatal in a case reported as Khan Afsar vs. Afsar Khan and others ( 2015 SCMR 31 1), relevant portion whereof is as under:- "The fact that the notice was merely sent would not suffice for the making of Talb-i-Ishhad. The vendee must be apprised about the intention of the preemptor . The acknowledgement due slip that was presented (Exhibit P.W.6/2) was also signed by the said Rashid Khan, and not by Muhammad Aslam Khan. Therefore, it cannot be stated that the requisite Talb-i-lshhad had been made. The notice should have been serve d upon the vendee/addressee, Muhammad Aslam Khan."
Since the deficiency is floating on the surface of record, therefore, this Court, in any event, is left with no option but to follow the ratio laid down in the aforesaid case-law having binding force in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
(ii) The second attesting witness of talb-i-Ishhad namely Muhammad Aslam son of Maqbool Ahmad as mentioned in para No. 2 of plaint and also reflecting from the deposition of PW-2 Muhammad Aslam son of Sadiq, 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 preemption, 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. It is expedient to reproduce the relevant paragraph of said case-law:- "In this case, as pointed out above, the respondent never took up the defence of having purchased the share in the Khata and this is the reason why no issue was framed; this plea was never a part of their appeal or grounds of revision, therefore only for the reason that they were able to produce in the evidence, the mutation No. 2518 could not be of any advantage to them for claiming the share on the basis of section 20 of the Act. The arguments that such mutation has been admitted in evidence by the trial Court without any objectio n from the petitioner , suffice it to say that even that being so, the evidence which is brought on the record by a litigant, even not subjected to objection by the opposing side, but it is outside the purview of his pleadings , should not be looked into by the Court, rather should be ignored. Resultantly the High Court on account of the above could not consider the said mutation and grant relief to the respondent, which was not within the parameters of their defence. The learned High Court in this regard has committed a grave illegality in the exercise of its jurisdiction, thus the impugned judgment cannot sustain in law .
(iii) As per plaint, the transaction under pre-emption came to petitioner's knowledge through Muhammad Aslam son of Sadiq, who appeared as PW-2 but in his testimony he has not disclosed his source of information, in absence whereof Talb-i-Muwathibat cannot be said to have been performed in accordance with law. It was imperative for the informer to disclose the source of gathering of information regarding sale of land, missing whereof is also fatal having bearing on merits of the case for obtaining decree.
(iv) As stated above, the petitioner-plaintif f claimed to have superior right of pre-emption qua the respondents- defendants on the basis of co-owner and contiguity of his land by relying upon Aks Shajra. Although Aks Shajra was produced as mark 'A' but not properly exhibited and on account of non-production of Patwari, document could not be presumed to have been proved, hence, could not be relied upon and exclus ion whereof left no evidence on record regarding prove of Shaft Shareek and Shaft Khaleet. In this regard, support is sought from the case law reported in Muhammad Akram and another v. Mst. Farida Bibi and others (2007 SCMR 1719 ), relevant portion whereof is as under:- "As mentioned above, Aks Shajra, has to prove by the respondents/plaintif fs by producing Patwari, therefore, this document did not explain and prove the fact of contiguity . The controversy between the parties qua contiguity is factual in nature hence it has to be proved through evidence."
5. In view of the above, this revision petition is dismissed.
No order as to costs.