' This revision petition under section 115, C.P.C., instituted by Fateh Muhammad and others petitioners/defendants seeks to call in question the judgment and decree, dated 5-12-1993 passed by the Appellate Court, Bhakkar, whereby, the judgment and decree, dated 5-10-1992 passed by the Civil Judge, Bhakkar was reversed, and the suit of the plaintiff/respondent was decreed.
2. The facts giving rise to the present revision petition are that Gulsher son of Mira plaintiff/respondent instituted a suit for possession through preemption on sale of land by Muhammad Amin etc., vendors through mutation No,2019, dated 27-9-1990 for a consideration of Rs,25,000 in favour of Fateh Muhammad and others petitioners (herein) on the basis of superior right of pre-' emption claiming to be owner of the property in the estate and contiguous to the property in dispute. He declared his intention to pre-empt the property as soon as he got the knowledge of the said sale and also sent a notice to the petitioners/defendants, and he performed Talb-e-Muwathibat and Talb-e-Ishhad. The petitioners/defendants contested the suit, filed their written statements denying the superior right of pre-emption of the plaintiff, asserting that the plaintiff did not perform all the requirement of Talib. On the pleadings of the parties the Trial Court framed the following issues:---
(1) Whether plaintiff has superior right of pre-emption qua the defendants? OPP.
(2) Whether plaintiff has Zaroorat of the suit land? OPP.
(3) Whether the plaintiff has fulfilled the requirement of Talabs before the institution of suit? OPP.
(4) Whether sale price Rs,1,50,000 as entered in mutation was fixed and paid in good faith? OPDs.
(5) If not what is market value of the suit land OP/Party.
(6) Whether plaintiff is estopped by his words and conduct to file the present suit OPDs.
(7) Whether suit is not maintainable in view of preliminary objection No,B of the written statement?
OPDs.
(8) Whether defendants are entitled to any amount over and above the sale price as cost of completion of sale? OPDs.
(9) Whether defendants have improved the suit land? If so, to what extent and with what effect?
OPDs.
(10) Whether suit is time-barred? OPDs.
(11) Relief.
' After recording and considering the evidence the Trial Court vide judgment and decree, dated 5- 10-1992 dismissed the suit.
3. Feeling aggrieved the plaintiff preferred appeal which came up for hearing before Additional District Judge, Bhakkar, who, vide judgment and decree, dated 5-12-1993 accepted the appeal and set aside the judgment and decree of the Trial Court and decreed the suit with the reasons that the respondents had established the completion of Talb-e-Muwathibat and Talbe-Ishhad. Hence this revision petition.
4. Learned counsel for the petitioners argued that Talb-e-Muwathibat had not been proved on record by the plaintiff, as none of the witnesses of the respondent/plaintiff and the respondent himself stated specific date on which he came to know of the sale, and that certified copy of the mutation in dispute contradicts the plea of the respondent/plaintiff, and the finding of the Appellate Court that requirements of Talab were complied with, was not correct.
5. On the other hand, learned counsel for the plaintiff/respondent controverted the arguments of the learned counsel for the petitioners and argued that the requirements of 1st Talab was made by the plaintiff/respondent and the respondent established on record by cogent evidence that when the respondent/plaintiff came to know of the transaction, he declared his intention to pre-empt the sale in question.
6. I have considered the arguments of the learned counsel for the parties and studied the record. In para.4 of the plaint, the plaintiff stated that he got knowledge of sale/transaction on 9-1-1991 and there he declared his intention to pre-empt the sale. On 12-1-1991 he sent a registered A.D. Notice attested by two witnesses to the defendants. To prove his case, the plaintiff/respondent produced P.W.1 Muhammad Nawaz and P.W.2 Ashiq Hussain. The plaintiff himself appeared as P.W.3, and Allah Ditta P.W.4 and Ghulam Muhammad P.W.5, and also produced documents Exh.P.1 to Exh.P.3, copies of notice, P.4 to P.6; postal receipts and Exh.P.7 copy of the disputed mutation No,2019. In the plaint the plaintiff stated that he was informed on 9-1-1991 when he declared his intention to pre- empt the sale. P.W.1 Muhammad Nawaz stated that he gave information of the sale in dispute to the plaintiff, and in cross-examination he admitted that it was 8/9 p.m. The plaintiff as P.W.3 deposed that P.W.1 Muhammad Nawaz when informed him in the night he was present in his 'Dera' which means that he received the information of the sale on the night of 9-1-1991. The copy of the mutation Exh.P.7 was received by the plaintiff on 9-1-1991. Certainly the copy of mutation was received by the plaintiff in the day of 9-1-1991. It reveals that in the day on 9-1-1991 the sale in question was in his knowledge, Talb-e-Muwathibat being jumping Talab at that moment when the plaintiff had come to know of the transaction, which he intended to pre-empt, and if the plaintiff/respondent was in the knowledge of the sale on 9-1-1991 in the day, when, he received a copy of the mutation as, is evident from the entries on the copy supplied by the Copying Agency, the plaintiff made no declaration in the presence of the witnesses to pre-empt the sale. It was established that the requirement of Talab-e-Muwathibat was not complied with by the plaintiff.
Notice of demand Exh.P.1 to Exh.P.3 were sent by one Sh. Abdul Aziz, Advocate who was not produced in evidence. It appeared from the record that notice was written by Clerk of the said Advocate who was also not produced in evidence; and the notices sent by the Advocate (Sh. Abdul Aziz) were not signed by the plaintiff/respondent, so it could be inferred that these notices were not sent by the plaintiff, without the evidence that notices were sent under the instruction of the plaintiff. The Postman had also not been produced to establish that these notices reached to the destination. Mere notice is nothing enough in the matter; its receipt by the defendant had to be established as laid down in case of Muhammad Rafiq v. Ghulam Murtaza 1998 M LD 292.
7. The plaintiff was bound to allege in the plaint that he had made Talb-e-Muwathibat specifically referring to the date, time and place on making declaration regarding his superior right of pre- emption. The plaintiff did not mention the date, time and place in the plaint, and it was essential to mention time and place, for making declaration of Talab-e-Muwathibat, because the plaintiff subsequently had to prove it and in failure to mention in the plaint he could not be allowed to lead evidence to this aspect, and reference can be made of the case of Abdul Qayyum Khan v. Musa Khan and 5 others 1995 CLC 729, Abdul Hameed alias Abdul Majeed v. Altaf Hussain NLR 1998 Civil
182. In Abdul Qayyum Khan's case (supra) the Division Bench of Peshawar High Court was pleased to hold that plaintiff was bound to allege in the plaint, that he had made Talb-i-Muwathibat with specific reference to the day, time and place making the declaration of his superior pre-emptive right, the view of the Peshawar High Court was followed by the Lahore High Court in case of Abdul Hameed alias Abdul Majeed v. Altaf Hussain (supra).
8. From scanning of the record it is reflected that Talab-e-Muwathibat was not proved by the plaintiff and Talab-Ishhad always followed the 1st Talab, if first Talab had not been completed in accordance with law second Talab would not follow; and in case of missing any one of the three Talabs the right of pre-emption is extinguished. To assert the right of pre-emption it was the obligation of the plaintiff to make three Talabs in the manner prescribed by law and non-fulfillment of requirements of Talabs in prescribed order would not entitle the plaintiff to decree of pre- emption. This principle was enunciated by the apex Court of the country in case of (1) Muhammad Ramzan v. Lal Khan 1995 SCM R 1510, (2) Mir Sahib and others v. Muhammad Rauf Khan 1992 SCM R 1780, (3) Muzaffar Ali v. Zain-ul-Abidin 1992 SCM R 1886 wherein it was held that non-fulfillment of requirement of Talab, would not entitle the plaintiff to decree for preemption.
9. The Appellate Court failed to take into consideration that the plaintiff/respondent had knowledge of the sale in question in the day time on 9-1-1991, when he applied for the copy of the mutation of sale, which he received on the same day. It was a sufficient proof of the fact that he had knowledge of the sale prior to the night of that day i,e,, 9-1-1991 when according to the statement of P.W.1 Muhammad Nawaz, he gave information to the plaintiff. As soon as the plaintiff received the knowledge of sale in dispute there and then he was bound to declare his intention to institute a suit for pre-emption. It is a case of misreading/non-reading of evidence by the Appellate Court and in such circumstances High Court in revisional jurisdiction can interfere in the impugned judgment and decree passed by the Court below on question of facts.
10. For what has been stated above, I accept this revision petition and set aside the judgment and decree, dated 5-12-1993 passed by the Appellate Court Additional District Judge, Bhakkar and maintain the judgment and decree, dated 5-10-1992 passed by the Civil Judge, Bhakkar dismissing the suit of the respondent/plaintiff. There shall be no order as to costs.