' Through Mutation No, 661 attested on 22-8-1989 Shah Hussain son of Farman Shah purchased 212/448 share in Khasra No, 106 measuring 9 Kanals, 6 Marlas in Village Kotha, Tehsil and District Haripur. Through yet another Mutation No,664 attested on 21-9-1989 the same vendee Shah Hussain purchased 57/448 share from Bedar Hussain Shah etc. In the same Khasra.
2. Both the transactions were jointly pre-empted by Khani Zaman sio Gulla of village Kotha. After the institution of suit, the sales were reverted to the original owner through registered deed 19-10- 1989 (Exh.DW I/PI) but, as the reversion was not mentioned in the original transaction, therefore, it was not considered legal and thus the two Courts below allowed the original transaction to prevail and the suit of pre-emption to proceed.
3. After a contest by the vendee etc. The pre-emption suit was decreed in favour of the pre-emptor by learned Civil Judge, Ist Class, Haripur through his judgment dated 5-7-1994. In the revision petition it is mistakenly stated to have been dismissed. The appeal of the vendee before the learned District Judge, Haripur also failed on 17-9-1995 and hence this revision by the vendee.
4. All the remaining aspects of the case being admitted, the only question argued before me on either side was that of Talb-i-Muwathibat. In para. No,2 of both the plaints (original as well as amended) it is categorically alleged by the pre-emptor that the Talb-e-Muwathibat and Talb-i- Ishhad both were done on the same date i,e, 15-10-1989 which is the date of Talb-i-Ishhad in accordance with the notice (Exh.PW.3/1). From the notice aforesaid it appears that Talb- iMuwathibat was done two days prior to the date of Talb-i-Ishhad. This factum is never mentioned in the pleadings and Talb-i-Muwathibat of 13-10-1989 is never proved.
5. No date of Talb-i-Muwathibat is mentioned in the plaint. No place of acquiring knowledge of transaction is given in the pleadings nor the names of any of the witnesses. Each transaction pre- empted by the pre-emptor is an independent and separate transaction but Talb-i-Muwathibat with specific reference to each transaction is nowhere disclosed in the pleadings. The factum of Talb-i-Musathibat is not alleged with required details in the pleadings and hence is not proved. The only witness to such 'Talb-i-Muwathibat' is Mahmood Hussain Shah but he seems to be stock witness because in another suit of preemption brought by the same pre-emptor against another person, the same Mahmood Hussain Shah is a witness of 'Talb-i-Muwathibat' despite the fact that he comes from another village.
6. The question of Talb-i-Muwathibat is a pure question of fact and thus is bound to be mentioned in the pleadings. So far as the pleadings are concerned, the plaint shows that 'Talb-i-Musathibat' and 'Talb-i-Ishhad' were done on one and the same day whereas in the evidence the pre-emptor has set up a different case to the effect that 'Talb-i-Muwathibat' was done two days prior to 'Talb- iIslihad'. It is a settled principle of law that no evidence can be led on a question of fact which is contrary to that alleged in the plaint.
7. Learned counsel for the respondent-pre-emptor has argued that the question of 'Talb-i- Muwathibat' never strictly required to be alleged in the plaint with specific reference to the time and place of such 'Talb'. This, if believed, would go counter to the provisions of Order 6 of the C.P.C.
That specifically requires all questions of facts to be mentioned in the pleading, leaving aside the evidence. The same order of the C.P.C. Requires that although the details of facts are not necessary yet in some cases the details attain such importance and proportion that the mentioning thereof becomes necessary. Under this principle one comprehends the question of fraud, the details of which become necessary to be mentioned. Similar, in the circumstances, is the question of 'Talb-i- Muwathibat', the details whereof become most important to be mentioned. It is important because it is only the factum of 'Talb-i-Muwathibat' that activates the right of pre-emption and without such ' Talb' even the right of pre-emption does not come into existence. The details are important because in the light of such details regarding the time and place of 'Talb-i-Muwathibat' one happens to calculate the period of limitation for 'Talb-i-Ishhad'. It is therefore, held that in the peculiar nature of the factor concerned, the details of 'Talb-iMuwathibat' are bound to be given in the pleadings.
8. Further objection of the learned counsel for the respondents was that the allegation qua 'Talb-i- Muwathibat' in the plaint are not properly denied by the vendee in his written statement given on two occasions. This objection is factually incorrect because in both the written statements the vendee has denied the contents of the corresponding paragraph of the plaint in all details.
9. In the circumstances of the present case, I hold that the Talb-iMuwathibat' is neither distinctly alleged being independent of Talb-i-Ishhad' nor it is proved in the light of the pleadings. Unless 'Talb-i-Muwathibat' is proved in a pre-emption case, no right of pre-emption comes into activation. Both the Courts below have wrongly appreciated the evidence and have fallen into material irregularity.
10. The revision petition is accepted, both the findings of the two Courts below are set aside and the pre-emption suit of Khani Zaman in hereby dismissed.