1. ' The appellant filed suit claiming right of pre-emption and possession in respect of the western half of the land bearing survey No.211/2-0 situated in Deh Talpur Wade, Taluka Kot Dini which was sold to respondent No.1 by the respondent No.
4. He claimed to be Shaf-e-Jar and Shaf-e-Khilat in respect of the disputed land as he owns land adjacent to it and is also drawing water from the same Kassi as the disputed land. It was further alleged that the respondents Nos.1 to 3 are not Shafies of the land in dispute. It was averred in the plaint that he came to know about the sale in his village, and at once made Talab-e-Mawasbat and without any delay took two witnesses on the land in dispute and made Talab-e-Ishhad. The respondents Nos.1 to 3 contested the suit denying the claim of the appellant. Besides the preliminary issues of legal nature, it was also pleaded that the respondent No.1 has purchased the disputed land in the sum of Rs.3,500 and that the appellant is not Shaf-e-Khilat, and has no right to file the suit. It was denied that any Talab was made. The learned trial Court decreed the suit holding that the appellant is Shafi of the disputed land, and proper Talabs as required by law were made. The respondent No.1 filed an appeal before the District Judge, who by the impugned judgment set aside the judgment and decree passed by the trial Court and dismissed the suit.
2. ' From the pleadings, the .evidence on record, and the arguments it is fully established that the appellant is a Shaf-e-Jar. There is no dispute about it between the parties. As is obvious from the judgment of the learned District Judge, Mr.Talpur the learned counsel for the appellant challenged the sale on that basis and did not press the claim of the appellant as Shaf-e-Khilat. The only question which arises for consideration is whether the appellant had made proper Talabs as required by law. According to the appellant one Alim was informed by Chanesar that Yar Muhammad has purchased the land and this information was conveyed by Alim to the appellant, who immediately made Talab-e Mawasbat and took two witnesses to the disputed land and made Talab-e Ishhad. These two witnesses as transpired in the evidence are Muhammad Alim and Zawar Pathan. These witnesses have in their evidence fully corroborated the statement of the appellant.
3. The learned District Judge. However, disbelieved them and came to the conclusion that these witnesses are interested witnesses, have falsely deposed, and they have subsequently been planted to support the case of the appellant. The entire controversy then revolves whether these two witnesses should be believed or not.
4. ' Before entering into this controversy, it would be proper to state that the learned District Judge has made an observation that at the time when Talab-e-Ishhad was made appellant did not refer to the Talab-e-Mawasbat. In this regard the learned, counsel for the appellant has referred to the following statement of the appellant: "One Alim a witness in the suit told me that Chanas had informed him that he had purchased eastern portion and Yar Muhammad western portion. On hearing this I said to Alim Muhammad that I shall purchase western portion as I am Shafai and I have no concern in eastern portion. At that time P.W. Zawar was also present. I alongwith P.Ws. Alim and Zawar went to the land in dispute and declared myself as Shafai before these witnesses. No other person except we three were there.
5. I told to them to be witnesses to this as he has already so when he was informed firstly."
6. ' This statement clearly proves that according to the appellant while making the second Talab he had referred to the first Talab.
7. ' Talab-e-Ishhad has to be made in the presence of two witnesses. The first witness is Muhammad Alim who is the son-in-law of the appellant. Except this fact there does not seem to be any contradiction in his statement. However, the veracity as discussed hereinbelow has been doubted on reasonable grounds as expressed by the learned District Judge. The second witness is Pathan who is also related to the appellant. In his examination-in-chief he has stated that he is related to the parties, but in cross-examination he denied that the appellant is related to him and stated that he has been on dining terms with him. However, the appellant has admitted in his cross- examination that Pathan is his relative and he had come to meet him. According to Mr. Talpur both the persons belong to the same caste, and therefore, the word relative may have been used in a generic sense. The denial has come in cross-examination and it was intentionally asked to challenge the veracity of the witness, and therefore, Pathan should have given a clear cut explanation while stating that he is not related to the appellant. The other striking feature of this witness is that he seems to be a chance witness. According to his evidence he had gone to Ranipur to take medicine from Haji Ghous Bakhsh and came to the village of the appellant as it was a bus stop and he just happened to drop in. He further stated that the preceding night he had stayed at Ranipur and he had come to Luqman in the morning of the day when the Talab was made and went away before lunch. On the other hand the appellant in his cross-examination has stated that Pathan had come to meet him and had stayed one night, and had no special work with him. Both these statements are contradictory and establish that at least Pathan wagJ merely a chance witness, and there is no valid explanation for his presence at the time when Talab is alleged to have been made.
8. ' The other ground which has impressed the learned District Judge and has been dealt at length is that the appellant had first brought two witnesses namely Chanesar and Paryo as his witnesses, but later on they were not examined, and thereafter, Pathan and Alim were brought to depose as his witnesses. According to the appellant he had brought Chanesar but under threat of respondent No.1 he ran away and refused to give evidence. Chanesar who has been examined on behalf of the respondent No.1 has stated that he was brought by the appellant, and was asked to depose with regard to the Talabs made by him but he refused to do so on the ground that such statement was never made before him. Mr. Syed Inayat Ali, the learned counsel for the appellant has rightly pointed out that this statement has not been challenged in cross-examination. On the other hand Mr. Talpur, the learned counsel for the appellant has contended that there was no use asking any question, because the answer would have been against the appellant. A statement made by a witness unless challenged in usually accepted provided there are no grounds to reject it,. In anticipation that an adverse reply will be received, the statement of the witness cannot be left unchallenged. The object of cross-examination is to elicit truth or to expose the falsehood. The unchallenged statement carries weight in deciding the issues.
9. ' Another aspect as pointed out by Mr. Syed Inayat All is that the appellant did not cross-examine the respondent No.1 on the fact that he had threatened the witness Chanesar and Paryo. From this fact it is established that at one stage the appellant had brought Paryo and Chanesar as his witnesses, but they were given up. According to the learned counsel for the appellant the evidence of Chanesar would have been only to effect that he informed Alim about the sale of the land in dispute. This has also been denied by Chanesar. The appellant in his plaint has not stated the name of witnesses before whom the two Talabs were made. As the making of Talabs before the witnesses is a necessary ingredient for its validity, it would be proper that the names of such witnesses are also specified in the plaint. However, mere omission to mention the names in the plaint may not lead to any adverse inference, but in the circumstances as placed in the present case such omission is bound to carry lot of weight against the plaintiff In the record, also I do not find that after the issues were framed any list of witnesses was filed by the appellant. Therefore, at every relevant stage it seems that the names of the witnesses were not disclosed. If Chanesar was a formal witness then the appellant should have brought or summoned his main witnesses on the date of hearing, but there is nothing on record to show that on the day Alim and Pathan were also present in Court. Usually a party keeps his main witnesses available alongwith all other witnesses.
10. From these facts it is established that no reliance can be placed at least on the evidence of Pathan and therefore, the Talab-e Ishhad has not been established to have been made in the presence of two witnesses. In the result the appeal is dismissed with no order as to cost.