Suit for pre-emption, filed by respondent No,1 against the petitioner and respondents Nos,2 to 6, was dismissed by the learned trial Court vide judgment and decree dated 22-1-1992. Appeal filed by respondent No,1, was accepted and the cross-objections of the petitioner, were dismissed by the learned Additional District Judge, through judgment and decree, dated 1-2-2000.
2. Briefly stated the facts of the case are that the land in dispute, was mutated in favour of the petitioner and respondents Nos,2 to 6 through an exchanged Mutation No,253, dated 31-7-1990.
Respondent No,1 brought a. suit for pre-emption 'on 14-11-1990, claiming that infect the above transaction is not an exchange but a sale; he had learnt about the sale three weeks prior to the institution of the suit, made ' Talb-i-Muwathibat. thereafter, he approached the vendees for the transfer of the land in his favour, as having superior right of pre-emption, being co-sharer in the suit land, but this was declined; notice of Talb-i-Ishhad was sent to the vendees; resultantly suit was instituted. Vendees contested the matter, learned Civil Judge, after framing of issues and holding of the trial vide judgment a.ith decree dated 22-1-1992, though found that the respondent No,1 has a superior right of pre-emption and that the transaction is a sale but dismissed the suitthat respndent/plaintiff has not been able to prove the Talbs. Respondent No,l. preferred an appeal, which has been accepted vide judgment and decree dated 1-2-2000, the findings of the trial Court on the issue of Talbs has beer. reversed and by affirming the finding on others given by the trial Court and dismissing the cross-objection of the petitioner, the suit was allowed.
3. Learned counsel for the petitioners, though has criticized the findings of the Courts below on the issue of superiors right and nature of transaction, but has not been able to show that such concurrent finding, is erroneous on account of misreading and non-reading of the evidence on the record. Therefore the findings are upheld.
4. The main criticism of the petitioners' counsel is that the learned Court in appeal has erroneously reversed the finding of the trial Court on the issue of Talbs. It is stated that in paragraph No,6 of the plaint plaintiff/preemptor, has categorically stated that he .learnt about the sale three weeks before the institution of the suit, which was filed on 14-i 1-1990 thus calculating three weeks from the above -date, would mean that he attained, the knowledge on 31-10-1990, but while appearing as P.W.3, plaintiff in his examination-in-chief, has stated that he learnt about the sale two and half month prior to the institution of the suit, whereas in his cross examination, he deposed that it was one and halt month. it is also argued that in the plaint, it is stated that the plaintiff pre-emptor attaired the knowledge through Muhammad Ali; defendant No,2, one of the vendees, however, in his statement as P.W.3, he mentioned that information was given by Niaz P.W.4 and Atta Muhammad. Both these witnesses, while appearing as P.W.4 and P.W.5, stated in line with the above It is also stated that notice of Talb-i-Ishhad had not been issued by the plaintiff-pre- emptor. There is no date given in the plaint, about the issuance of notice: moreover it is proved. through evidence, if such notice was issued, which was attested by two truthful witnesses. It is also submitted that P.W.6, who is a school teacher, but was acting as an incharge of the post office has stated that he received three postal envelops, from plaintiff but has not proved the receipt allegedly pertaining to the nonce of Talb-i-Ishhad, rather he in his examination-in-chief has categorically, denied the issuance of receipts Nos,148, 149 and 142. Thus taking the entire evidence into consideration, it is not proved. it' the plaintiff pre-emptor had made 1-albs or even issued notice of Talb-i-Ishhad.
5. Learned counsel for the respondent has supported the judgment of the Court of appeal and stated that in the earlier round of litigation, between the parties, this Court, in C.R. No,1053 of 1993 has held that there was no requirement of issuance of notice of Talb-i-Ishhad in writing and this decision remains conclusive. It is also submitted that as per judgment reported as PLD 1994 SC 1 at 15, the Shariat Appellate Bench of the Honourable Supreme Court, has held that non-sending of written notice of Talb-iIshhad would not effect the righi of the pre-emptor.
6. I have heard learned counsel for the parties. According to law, plaintiff has to prove both the Talbs. In the plaint, plaintiff has. categorically mentioned that he learnt about the sale three weeks before the institution of the suit: suit was filed on 14-11-1990, which means that be attained the knowledge on 31-10-1990, whereas while appearing as a witness P.W.3, he as pointed out by learned counsel for the petitioner, stated in his statement-in-chief, to the contrary and deposed that the sale was learned by him about two and half month before institution of the suit, but in the cross-examination stated it to be one and half month. Moreover, in his statement plaintiff/pre- emptor has not uttered a single word, if on learning about the sale, he made Talb-i-Muwathibat in the same Majlis, rather it is stated that about ten days after learning about the sale, he went to the vendees and asked them to take the price and to give him the land. Above all, in the plaint, the plaintiff in very categorical and unequivocal terms has mentioned that he learnt about the sale through Muhammad Ali, defendant No,2, in the presence of the witnesses, but in his statement as P.W.3, he deposed that Niaz Muhammad, P.W.4 and Atta Muhammad, P.W.5. told him of the above fad. It is settled law that no one can be allowed to lead' evidence beyond the scope of his pleadings and if such evidence has been led, same should he ignored by the Court. Admittedly. comparing the averments of the plaint, with the evidence of the plaintiff/respondent No,1 in the shape of statement of P.W.3 to P. W.5, it is obvious that such evidence is beyond the case of the plaintiff set out in the pliant and therefore, evidence has to be excluded from consideration, thus by doing so, there remains no evidence on the record that the plaintiff learnt about the sale on which exact date and made Talb-i-Muwathibat. Moreover, there is serious contradiction of date of knowledge in the plaint and the evidence of the respondent No,1, Above all, while appearing as his witness, it is nowhere stated by P.W.3 that he made the first Taib. Even though no specific words are required to be uttered in this behalf. Yet it is not proved through his own statement that by conduct or necessary gesture he even asserted to preempt the sale in the same Majlis when he got the information. Therefore, I am constrained to hold that the pre-emptor failed to prove Talb-i- Muwathibat.
7. Now coming to the question of Talbi-Ishhad, petitioner in his examination-inchief, has not stated, if a notice was issued to the respondent, which was attested by two truthful witnesses. Niaz Muhammad P.W.4 and Atta Muhammad P.W.5 are also silent about this factum. According to section 13(3) of the Punjab Pre-emption Ordinance, 1990, which was in force at the relevant time, plaintiff-pre-emptor was required to send a notice in writing to the vendees, attested by two truthful witnesses; this aspect is conspicuously missing proof in the present case. The statement of P.W.6, who was acting as postman and has deposed that he received three envelops from plaintiff preemptor does not improve his case, because it has not been proved on the record, if in such envelops, there were valid notices of Talb-iIshhad or some other document/blank paper. The scribe of the notice has not been examined; P.W.4 and P.W.5 have not deposed if they attested any such notice; even a copy of the notice has not been proved in evidence; no notice of production was given to the vendees to produce the originals as allegedly sent to diem, enabling the respondent in case of the refusal or failure to lead secondary evidence. Therefore, I hold that the plaintiff/respondent No,1, did not prove the notice of second Talb in accordance with law.
8. I am not impressed with the argument of learned counsel for respondent that in the earlier decision, given by his Court, in Civil Revision No,1053-D of 1993, it was ever conclusively determined that the notice of Talb-i-Ishhad was validly issued by plaintiff/pre-emptor. Moreover, the judgment of the Shariat Appellate Bench of the Honourable Supreme Court', does not declare the provision of section 13 of the Punjab Pre-emption Ordinance, 1990, regarding Talb-i-Ishhad as repugnant to the Injunction of Islam. Even otherwise, this judgment takes effect from 31-12-1993, whereas the present suit was filed on 14-11-1990, where the Ordinance was fully applicable.
In the light of above, it is held that the Appellate Court has committed material irregularity and has passed the impugned judgment and decree in erroneous exercise of jurisdiction by misreading and non-reading of evidence on the record and by over looking the factual and legal aspects highlighted above. Such judgment, therefore, cannot be sustained in the eyes of law, resultantly, this revision petition is accepted; the impugned judgment of the Appellate Court, on issue of Talbs is reversed, and that of the trial Court, is upheld. However, no substance has been found in the submission of learned counsel for the petitioner, on other issue decided against them at both the forums below.