' The petitioner through this revision petition has challenged the judgments and decrees dated 29- 2-1992 and 10-12-1995 passed by the learned Civil Judge, Sialkot and learned Additional District Judge, Sialkot respectively, by virtue of which the suit filed by the respondents was decreed and appeal against the said judgment was dismissed.
2. The facts which gave rise to the filing of present revision petition are that the respondents filed a suit for possession through preemption of the property detailed in Para. No,1 of the plaint belonging to Allah Ditta who sold it in favour of Abdul Latif, the present petitioner, for a consideration of Rs,65,000 but the price was got fictitiously recorded as Rs,1,75,000. The plaintiffs/respondents alleged that no notice was served upon them prior to the sale as required under the law. They in presence of Muhammad Shafi and Muhammad Ashraf made Talb-e-Muwathibat and similarly in presence of these witnesses Talb-i-Ishhad was made but of no avail, hence the suit. The defendant/petitioner contested the suit on various grounds including the ground that the price was Rs,1,75,000 and that the suit was barred by time. On the pleadings of the parties, the following issues were framed:--
(1) Whether the suit is barred by time? OPD.
(2) Whether the plaintiffs have no cause of action to bring this suit? OPD.
(3) Whether the suit is liable to be dismissed? OPD.
(4) Whether the suit is for partial pre-emption? OPD
(5) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD.
(6) Whether the suit is vexatious and against law and the defendant is entitled to recover special costs under section 35-A of C.P.C.? OPD.
(7) Whether the defendant is entitled to recover Rs,4,000 incurred as necessary expenditure of registration for.The suit land? OPD.
(8) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction? If so, what is the correct value of the suit land and its effect? OPD.
(9) Whether the plaintiffs have superior right of pre-emption qua the vendee/defendant? OPP.
(10) Whether the ostensible sale price of Rs,1,70,000 was fixed in good faith and actually paid? OPD.
(11) If Issue No,10 is not proved in affirmative then what was the market value of the suit land at the time of sale? OPP.
(12) Whether the plaintiffs have fulfilled the Talbs according to law? OPP.
(13) Whether the plaintiffs have 'Zaroorat' of the suit land to avoid 'Zarar'? OPP.
(14) Relief.
' The trial Court after recording the evidence of both the parties proceeded to decide Issues Nos.1 to 6, 8, 12 and 13 in favour of the plaintiff and ultimately decreed the suit of the present respondents.
The present petitioner feeling himself aggrieved filed an appeal, which was dismissed by the learned Additional District Judge, Sialkot vide judgment and decree dated 10-12-1995, hence this revision petition.
3. Notice of this petition was issued to the respondents who firstly entered appearance through Mr. M. Qamar Anjum, Advocate but today neither the respondents nor their learned counsel entered appearance, therefore, they are proceeded against ex parte.
4. During the course of hearing of this petition the arguments submitted by the learned counsel for the petitioner is that the question of 'Talbs' as provided under section 13 of the Punjab Pre-emption Act, 1991 is not proved on record, particularly with regard to Talb-i-Ishhad. The learned counsel has relied upon section 13(3) of the Act, which for convenience purposes is reproduced below:- "Section 13(3): ' Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later that two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of preemption: ' Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-lshhad in the presence of two truthful witnesses."
' Apart from section 13(3), reproduced above, the learned counsel has also placed reliance upon the case of Abdul Ghaffar and 2 others v. Malik Muhammad (1993 CLC 24-37) wherein it was held that Talb-i-Ishhad must be in writing attested by two truthful witnesses and it be forwarded through registered cover acknowledgement due to the vendee confirming intention to exercise right of pre-emption and this averment must be made in the plaint and in the absence of this situation the averments be also made of non-availability of a post office facility in the area and nothing in the present case appears to have been done by the respondents/plaintiffs.
5. In view of this submission of the learned counsel for the petitioner and having gone through the provisions of section 13 of the Punjab Pre-emption Act, 1991 and the citation relied upon, it is established on record that Talb-i-Ishhad as provided in the Act was neither made by the plaintiffs nor alleged in the plaint and it was also not A proved on the record, as such the Taibs were not proved and on this consideration the suit for possession through pre-emption filed by the respondents was liable to be dismissed.
6. In view of the above discussion, the revision petition is allowed and the judgments and decrees of both the Courts below are set aside resulting in the dismissal of the suit filed by Abdul Karim, plaintiff, before the trial Court.