This Civil Revision is directed against the judgment and decree dated 3-5-1994 passed by the learned Additional District Judge, Muzafargarh, whereby the appeal of the respondent was accepted and the judgment and decree dated 8-12-1991 passed by the learned Civil Judge, Alipur was set aside, resultantly, the suit for possession through pre-emption filed by the petitioner was dismissed.
2. The petitioner being plaintiff ~in a suit for possession through pre-- emption claimed that the mutation of gift bearing No.455 entered and attested in favour of respondent on 24-1-1990 is in fact a transaction of sale and that she being a co-sharer of the land in dispute has a superior right of pre-emption as against the respondent. It was asserted that the petitioner having come to know of the abovesaid transaction in favour of the respondent immediately went to respondent and asserted her right of pre-emption thus fulfilling the condition of ' Talb-i-Muwathibat' and thereafter, again went to the respondent in the company of 4 witnesses and asserted her superior right of pre-emption in their presence. The respondent, however, did not concede the demand of the petitioner with the result that she was constrained to file the suit.
3. The respondent remained ex parte with the result that ex part evidence was recorded in the case and the suit was decreed by the learned trial Court by treating the transaction as that of sale as also by holding that the petitioner has superior right of pre-emption as against the respondents and that the 'Talbs' were duly performed by the petitioner. The appeal filed by the respondent was, however, accepted by the learned Additional District Judge mainly on the ground that notice of 'Talb-i-Ishhad' was not produced in evidence and the mere production of postal receipts as also the acknowledgement due receipt does not mean that Talb-i-Ishhad was performed in accordance with the law. The learned appellate Court further observed that the petitioner having failed to mention the notice in the pleadings, the evidence led in that behalf could not be looked into. The abovesaid finding of the learned Appellate Court have been assailed in this revision petition. The learned counsel for the petitioner argued that the law as to pleadings required facts to be pleaded and not the evidence itself. It was submitted that the required facts were duly pleaded and the same were to be proved at the trial, therefore, the production of notice during the trial could not be treated to be against the pleadings itself. Reliance has been placed on Mst. Naseem Akhtar v. Khuda Bakhsh (1993 CLC 1057) and Ghulam Hamdani v. Muhammad Iqbal (1993 SCM R 1083). There cannot be any cavil with the proposition that requirement of law as to pleading is to the effect that necessary facts constituting the cause of action are to be pleaded and that no evidence need be pleaded but in the instant case it would be seen that the 'Talb-i-Muwathibat' as pleaded and sought to be proved is not made/performed in accordance with law.' Talb-i- Muwathibat' means jumping Talb and should be made right at the moment when a person comes to know of the transaction which he intends to pre-empt. In the instant case the 'Talb-i- Muwathibat' has been pleaded in the manner that the petitioner having come to know of the transaction went to the respondent to assert her superior right of pre-emption meaning thereby that the 'Talb-i-Muwathibat' was not made right at the time when the petitioner came to know of the transaction. That being so the subsequent Talbs even if made in accordance with law would not be of any consequence in law. As far the argument that the plaintiff /petitioner could not be non-suited for his omission to mention posting proceeding of the notices in the pleadings suffice it to say. That having referred it in the evidence the question posting and delivery thereof was not proved in accordance with law. The notice of 'Talb-i-Ishhad' has its own peculiar features. It is to be shown that the same is sent within two weeks of the making of 'Talb-i-Muwathibat' and that the same is attested by two truthful witnesses and unless the notice itself is proved the abovesaid two conditions cannot be shown to have been fulfilled. The argument that the witnesses, who attested the notice, appeared in the case to depose in regard thereto is also not well-based. It is now well- settled that when any transaction has been drawn and executed in the form of a document, no amount of oral evidence can be allowed to be produced to prove the same unless it is shown that original document has been lost or cannot be produced or procured and that too after obtaining permission from the Court for production of secondary evidence. No such permission appears to have been obtained and that being so mere production of two witnesses could not be paid to have proved the notice itself. No misreading or non-reading of the record has been pointed out. The petitioner/plaintiff having failed to establish that she performed 'Talbs' in accordance with law is not entitled to decree as prayed. The revision petition is devoid of any merit, therefore, the same is dismissed in limine.