' This is a revision arising out of a suit for pre-emption filed by the present applicant against the respondents in this revision in the Court of Senior Civil Judge, Gambat. The admitted position is that the applicant is the owner of agricultural land bearing Survey numbers 281, 284 and 287 of Deh Tarai, Taluka Faizganj, which is situated adjacent to Survey numbers 282 and 285 of the same Deh belonging to the respondents Nos. 2 and 3. The claim for pre-emption was raised on the grounds of vicinage (Shafi Jar) and also on account of participation in immunities and appendages as the survey numbers are irrigated by the same watercourse. The allegations are that the respondents Nos. 2 and 3, ignoring the rights of the applicant sold away the survey numbers to respondent No. 1 Kauro Khan for a consideration of Rs.20,000 on 10th of April, 1979. That as soon as he was informed of the sale by one Noor Muhammad, he instantaneously made the first demand, "Talab Mowasibat" to assert his right of pre-emption in presence of witnesses. The applicant further stated that without loss of time he proceeded to his village with Noor Muhammad to collect the money from the house and picked up another witness Gul Khan. All the three then went to the land in suit and there, he in presence of witnesses Noor Muhammad and Gul Khan repeated his right of pre- emption mentioning the fact of having made Talab Mowasibat. It need not be stated that to make a demand on the land itself is one of the recognized mode of making the "Talab Ishhad" which can also be made either by approaching the seller or the purchaser of the property sold. The defendants contested this suit by filing a joint written statement. In this written statement it was contested that the sale was kept secret or was in any way objectionable. The defendants on the other hand contended that not only the applicant had full knowledge about the sale. He was as a matter of fact given first choice to purchase this land. As the controversy by now has shrunk to only two questions namely, whether the applicant made the proper demands and whether the respondent No.1 has a preferential right of pre-emption. I would not go into further details of allegations and counter-allegations raised by the parties in the suit. The plea for having a preferential claim by respondent No 1 is raised on basis of para. 25, clause (3) (d) of M.L.R. 115 which runs as under:-- 25(3)(d) Subject to the other provisions of this Regulation a tenant shall have the first right of pre- emption in respect of the land comprised in tenancy.
' On these pleadings of the parties the learned Senior Civil Judge, Gambat framed as many as 8 issues. Two issues Nos. 3 and 5 need to be mentioned. They are -as follows:--
3. Whether defendant No. 1 was cultivating the land in suit with the consent of defendants Nos. 2 and 3.
5. Whether the plaintiff made demands for exercising right of pre-emption in accordance with law?
' Both parties led evidence. The applicant/plaintiff examined himself and Gul Khan son of Jumo Fakir and Noor Muhammad. On behalf of respondents Kauro Khan respondent No. 1 and Muhammad Sharif respondent No.2 were examined. There is word against a word so far as the merits of the controversy are concerned. One Shahbazali the Tapedar of Tapo Ratar, Taluka Faiz Ganj has also been examined on behalf of the defendants. This witness has produced Khasra Girdawari for the years 1977-78, 1978-79, 1979-80 and the object in producing this evidence is to show that respondent Kauro Khan was a Hari of the disputed survey numbers and as such entitled to preferential treatment to claim this land in terms of para. 25 of M.L.R. 115 quoted above. The learned Judge answered the issue No. 1 in negative and issue No. 5 in the affirmative and the suit of the plaintiff for pre-emption was decreed by the judgment, dated 24-6-1981. According to this judgment of the learned Civil Judge the case of the respondents/defendants regarding the claim that respondent No. 1 was a Hari remains unsubstantiated. The learned Judge has opined that in the first instance the Khasra Girdawari is not a conclusive evidence to show that the respondent No. 1 was a Hari and on top of it this document itself was not worth any credit as according to the learned Judge the entries relied upon were mutilated and overwritten. Eliminating this evidence nothing was left to support the contention of the respondents that he was the Hari of the said survey numbers and could claim benefit of para. 25 of M.L.R.
115. The learned Judge also discovered the discrepancies in the oral evidence produced before him inasmuch as all the witnesses were not unanimous on the question of Kauro Khan's being a Hari for all the three years for which the entries in the Khasra Girdawari were relied upon. Kauro Khan stated in his statement that he and Muhammad Hasan were Haris of the disputed land at the time of purchase whereas Shahbazali Tapedar stated that the name of Kauro Khan has only been shown as a Hari of the suit land in their record for the year 1979-80. In para. 11 of the judgment the learned Senior Civil Judge has dealt with this issue as follows:-- "The evidence of D.W. Shah Nawaz Tapedar has not gone unchallenged and unrebutted and, therefore, it is to be weighed keeping in view the other aspects of the case and the evidence adduced by defendants themselves. The plaintiff has challenged the entries in "Khasra Girdawari" register to be false and manipulated and as such the evidence of very high order was required to establish that defendant No.1 was Hari of the disputed land at the time of said transaction between defendants. The defendants have not examined any other person to support their version on this issue. It will not be out of way to mention here that defendants in their statements recorded in Court have introduced a new plea that Muhammad Hasan who is son of defendant Muhammad Sharif and defendant No. 1 Kauro were jointly the Haris of the suit land at the time of this transaction whereas in their written statement they have stated that defendant Kauro alone was Hari of the disputed land. It is evident from the perusal of the record that the new plea which was introduced for the first time after the statement of D.W. Shah Nawaz Tapedar was taken by defendants only to support the statement of Tapedar and the entries in "Khasra Girdawari" register. This clearly shows that defendant No. 1 Kauro has never remained Hari of the suit land but his name has been entered in "Khasra Girdawari" register later on with the object to defeat pre-emption right of the plain tiff . "
' On account of these discrepancies and contradictions the story of Kauro Khan being Hari, was disbelieved by the learned Judge. The version of the applicant/plaintiff inspired confidence. The learned Judge, in Para. 15 of his judgment concluded:-- "No independent witness has been examined by defendants in support of this issue. On the contrary plaintiff Muhammad Din has specifically deposed that defendant Kauro is a shopkeeper and he never cultivated the suit land or any other land. The version of plaintiff is further supported by his two independent witnesses Gul Khan and Noor Muhammad. Plaintiff and his witnesses were subjected to cross-examination but their evidence could not be shattered in any manner and I see no reason to disbelieve or even to discredit their version. P.Ws. Gul Khan and Noor Muhammad are independent witnesses and they bore no enmity or against the defendants."
' On this assessm ent of evidence in the case on issue No. 3 the learned Judge overruled the plea that defendant Kauro Khan could claim benefit of M.L.R.
115. Reliance for this finding was placed on the statements of Gul Khan and Noor Muhammad who were held to be independent witnesses bearing no enmity or illwill against the defendants. After Kauro Khan was held to be disentitled to the benefit of M.L.R. 115 there was no difficulty in coming to the conclusion that the applicant/plaintiff who admittedly owned the adjacent survey numbers was entitled to assert his right of pre-emption in respect of the disputed survey numbers. These findings of the learned Judge have been upset in the appellate judgment of the learned First Additional Sessions Judge, Khairpur. The learned Additional Sessions Judge while holding "undoubtedly the burden to prove that the appellant was Hari lies squarely on him" proceeded to reverse the findings of the learned. Civil Judge. According to the learned Additional District Judge the original Khasra Girdawari was not retained on the file by the learned Civil Judge and the finding that the same was manipulated, fabricated and overwritten could be on basis of memory of the document. In my opinion this is not a good ground to reject the findings of the trial Court particularly because at the time when this document was being produced by the Patwari a specific request was made by the plaintiff/ applicant to preserve and retain it in the case but unfortunately this request was rejected. There is a detailed cross-examination of the Patwari on the question of the record having been fabricated and the findings of the learned Judge should be read in the light of this elaborate cross-examination which indicates that in the earliest opportunity the authenticity of this document was challenged. The overwritings and use of different inks were also specifically pointed out by the cross-examiner. As such I see no reason to discredit the findings merely because the document was not retained by the learned trial Judge. In addition to this there is a very strong piece of evidence which settles the matter in favour of the applicant/plaintiff. To the sale-deed, dated 10-4-1979, Exh.16 is appended a certificate from the Patwari which unambiguously says that the land was under self-cultivation of the vendor. In view of this certificate which may be treated to be a part of the sale-deed it is difficult for the respondents to take up a plea inconsistent with this admission after the suit has been filed. I would, therefore, disagree with the views of the learned Additional District Judge and affirm the findings of the learned Civil Judge. It may also be noticed that the entries in the Khasra Girdawari were produced by Shahbazali but this Patwari was not the Patwari at the relevant time and the Patwari who had made these entries has not been summoned to prove these entries and to face cross- examination of the applicant.
' The other issue on which the learned Additional District Judge has reversed the decree of the trial Court is Issue No. 5 and relates to "Talabs." The treatment of this issue and reasons for disbelieving the Talabs made by the applicant are rather amusing. I agree with the learned Additional District Judge that the statements relating to these Talabs, by the applicant and the witnesses suffers from excess of elaboration But they cannot be rejected for that. The plaintiff/applicant and his two witnesses have tried to prove the Talabs by using the words and phraseology which seem to be rather unreal and stereotyped. For instance the plaintiff while making the Talabs on the land addressed the land itself. I quote from his statement:-- "I had also informed P.W. Noor Muhammad when he disclosed me about the sale of suit land that I am pre-emptor of the suit land and ready to purchase it and I also tell you (the land) that I am pre-emptor. I am willing to purchase you (land in suit) and that I had brought such money. I also declared to both the witnesses that I am pre-emptor and I will claim my right of pre-emption and I will purchase the suit land and they shall be witness to it. At the time of my such declaration over suit land the witness Noor Muhammad and Gul Khan were standing just near me."
' But it should be kept in mind that this is a case of pre-emption. The Talabs and the language and form suggested by authors of Texts of Muhammadan Law impart an impression that the Talabs are more a ritual than a reality. Whenever a ritual is performed the expression used and words uttered by the maker are to conform strictly to the form of ritual. Merely because the applicant has closely adopted some of the forms given in the textbooks on the subject and repeated those versions in his testimony in Court, he cannot be disbelieved. Precision and brevity have proved to be fatal in place of lucidity and elaboration adopted by the present applicant in making these Talabs. I cannot subscribe to the view that merely because the applicant has not remained content with compliance of the basic requirements of the Talabs and D has additionally used expressions which have given a colour of unreality the substance should also be discarded. Some of the forms given for such Talabs in different textbooks of Muhammadan law have adopted quite amusing forms and prescribed quite unreal test for validity of these Talabs. A pre-emptor has got to be doubly cautious in making these Talabs and also at the time of asserting his rights of pre- emption in a Court of law at the time of making the third Talab i.e. Talab-e Tamlook for enforcement of his right. The comments of the learned first appellate Court on the statements of witnesses are also based on surmises and probabilties. No cogent reasons for disbelieving these witnesses have been given. The learned trial Judge has repeatedly appreciated in his judgment the evidence of these witnesses and it should not be overlooked that it was he before whom the witnesses appeared and he could alone determine their demeanour and conduct. One passage from the judgment of the trial Court may be quoted to give an idea what impression these witnesses have cast on the mind of the learned trial Court. In para. 15 of the judgment the learned Judge observed as follows:-- "The version of the plaintiff is further supported by his two independent witnesses Gul Khan and Noor Muhammad. Plaintiff and his witnesses were subjected to cross-examination but their evidence could not be shattered in any manner and I see no reason to disbelieve or even to discredit their version. P.Ws. Gul Khan and Noor Muhammad are independent witnesses and they bore no enmity or ill-will against the defendants."
' On quite a few other places similar view have been expressed by the learned trial Court on the statements of these witnesses. The appellate Court cannot simply brush aside the findings of the trial Court and substitute them for its own unless good reasons are advanced for doing so.
Examined carefully the judgment of the learned first appellate Court lacks in that test.
' Only these two points were argued before, no other point was argued. On both these points I agree with the findings and conclusions of the trial Court and have to differ with the findings of the learned first appellate Court. This revision is, therefore, allowed. Judgment and decree of the learned Additional District Judge are set aside and the judgment and decree of the trial Court restored. In the circumstances of the case there would be no order as to costs. The applicant would be entitled to the relief of pre-emption in terms of the prayer contained in the plaint. It may be added that if in the meantime, the respondent No. 1 has made any improvements, he would be entitled to compensation to that extent in addition to the price of the land mentioned in the sale- deed. .