' Upon sale of the suit property, petitioner/pre-emptor claiming superior right and performance of to, filed a suit for possession through pre-emption. He was, however, non-suited by the learned Civil Judge, Sargodha through judgment and decree, dated 4-11-1997 on the ground that petitioner failed to serve notice of Talb-iIshhad as was required under section 13(3) of the Punjab Pre- emption Act, 1991. On appeal, learned Additional District Judge, Sargodha by judgment and decree, dated 23-6-1999, concurred with the above referred findings, of the learned Civil Judge and dismissed-the appeal, hence the present civil revision.
2.. Learned counsel for the petitioner stated that learned Courts below erred at law and exceeded their jurisdiction by not considering the law laid down by the Honourable Supreme Court of Pakistan in the case of Abdul Malik 1999 SCM R 717 that upon substantial compliance of the requirements of Talbe-Ishhad/TalbweKhusumat, petitioner could not have been non-suited. It was further contended that petitioner, in para.3 of the plaint, pleaded that he, upon coming to know, went alongwith seven other persons to the vendees to receive the money and to accept petitioner's superior right of pre-emption and that delayed service of notice or non-service thereof is not an adequate ground to dismiss the suit as well as appeal.
3. I have considered the submissions of the learned ocunsel for the parties and have also examined the record as well as the judgment. There is no doubt that in para. 3 of the plaint, petitioner/pre-emptor pleaded that he had taken seven truthful witnesses with him to the vendees to press his superior right of pre-emption by making an offer of the sale price, but the vendees refused. However, in para.4 of the plaint, petitioner categorically, concisely and clearly set up a case that finally on 2-7-1991 he separately sent to each of the vendees written notices through registered post vide Registry Nos.3 and 4, but respondents/defendants refused to receive the same and both registered envelopes were returned to the petitioners as having been refused by the said respondents/vendees. In view of this assertion in the plaint, the entire case of the petitioner became evident. He specifically pleaded service of registered notices of Talb-i-Ishhad in terms of section 13(3) of the Punjab Pre-emption Act, yet failed to produce such notices on record to show timely performance of Talb-i-Ishhad, as per express provisions of subsection (3) of section 13 (ibid). Having set up a concise case and having specifically made pleadings in the plaint, it was the duty of the petitioner to prove the same in evidence which he admittedly failed to do. The case set up before this Court and also before the learned Courts below was that his visit along with other witnesses to the vendees, as stated above, should be taken to be substantial compliance of the provisions of law, as no Post Office existed in the village and the case fell within the proviso to the above said section.
4. I am afraid, this contention cannot be accepted. In the case of Abdul Maalik 1999 SCM R 717, the Honourable Supreme Cotwt of Pakistan accepted substantial compliance in the perspective that notice of Talb-i-Ishhad was admittedly sent by the pre-emptor but the same had not been signed by two truthful witnesses. It was in this circumstance that the Honourable Supreme Court of Pakistan proncounced such Talb-i-Ishhad as substantial compliance with the provisions of law. In the present case, petitioner failed to advance a case under proviso to subsection (3) of section 13 (ibid), in the plaint that no Post Office existed, therefore, he adopted other permitted modes to exercise his right of Talbs than to serve a registered notice as required by section 13(3) (ibid). In view thereof, petitioner cannot be allowed to raise a case different from one raised in the plaint.
5. Learned Courts below through proper and detailed analysis and appreciation of evidence held that petitioner failed to serve notice of Talb-i-Ishhad, as mandatorily required by section 13(3) of the Punjab Preemption Act, 1991. Findings of facts thereof are concurrent. I am afraid, the proposition of substantial compliance, as advanced by the learned counsel for the petitioner, is in fact an admission of non-compliance with the express provisions of law and does not provide any escape route to the petitioner.
6. In view thereof, this petition is dismissed.