JUDGMENT MIAN MUHAMMAD JAHANGIR, J.- This revision petition is directed against the judgment passed by the learned Addl. District judge, Talagang, District Chakwal dated 5.6.1995 whereby the appeal filed by respondent/defendant against the judgment passed by the learned Civil judge, Talagang, dated 13.4.1994 was accepted and the suit for possession through pre-emption filed by the Petitioner/plaintiff was dismissed.
2. Some relevant facts for the disposal of this revision petition are that the suit land measuring 21 Kanals, 18 Marlas situated in the area of village Misrail Tehsil Talagang was sold by its owners Ali Khan and Akbar Khan sons of Feroze Khan, residents of village Misrial vide mutation No. 271, dated 31.12.1992 in consideration of Rs. 1,04,000)/- but in order to deprive from superior right of pre- emption to Abdul Rehman's pre-emptor the sale price of Rs 1,30,000/- was mentioned. Abdul Rehman's pre-emptor/plaintiff was having the qualification of being Sharik-i-Khata. When he came to know about sale of suit land he announced to have exercised his superior right of pre- emption and on the same day he repeated his declaration in the presence of Feroze Khan son of Allah Dad and Muhammad Hassan son of Sher Zaman residents of Misrial. Thereafter he alongwith these witnesses went to the vendees and asked him to handover the suit land To him after receipt of the actual sale price but the vendee had refused in this connection. Thereafter on 9.1. 1993 he sent notice of Talb-e-Ishhad with registered A/D cover after having it signed by him and the witnesses, he expressed his Zaroorat and apprehension of ' Zarar' as weii, so while stating all these facts he filed the suit for possession through pre-emption before the learned Trial Court. This suit was resisted by Haji Ghazan Khan defendant by filing the written statement wherein some preliminary objections were raised including non-fulfilment of the talabs as required under the law and on merits it was contended that the suit land was sold in consideration of Rs.1,30,000.
3. In view of the pleadings of the parties, the following issues were framed:-
(1) Whether the plaintiff has got no cause of action to file this suit? OPD.
(2) Whether the plaintiff is estopped by his words and conduct from filing this suit? OPD.
(3) Whether the defendant has improvement over the property in dispute, if so, to what extent and its effects? OPD.
(4) Whether the defendant has incurred incidental charges on the mutation/sale, if so to what extent its effects? OPD.
(5) Whether the plaintiff has got superior right of preemption qua the defendant/vendee? OPD.
(6) Whether the plaintiff has fulfilled the requirements of talabs? OPP.
(7) Whether the plaintiff has Zaroorat of the property in dispute or he has filed this suit to avoid any Zarar? OPP.
(8) Whether the consideration/sale price Rs. 1,30,000/- was fixed in good faith and the same has actually been paid by the defendant/vendee? OPD .
(9) If issue No. 8 is not proved what was the market value of the suit property at the time of its sale?
OPPs.
(10) Relief.
4. Evidence of the parties was recorded. Issue No. 4 was decided in favour of the defendant, Issues Nos. 5, 6 and 7 were decided in favour of the Petitioner/plaintiff. On issues Nos. 8 and 9 the price of Rs. 1,30,000/- was found to be correct, while issues Nos. 1, 2 and 3 were decided against the defendant. Anyhow, the suit was decreed vide judgment dated 14.4.1994.
5. Being aggrieved from the judgment dated 14.4.1994 the defendant came in appeal before the learned first Appellate Court which, after re-appraisal of the evidence found that the Petitioner/plaintiff failed to fulfil the Talb-e- Muwathibat and Talb-e-Ishhad as required under the law, as a consequence of it the appeal was accepted, the judgment passed by the learned Trial Court was set aside and that the suit for possession through pre-emption was dismissed.
6. Being dis-satisfied with the judgment passed by the learned Addl. District Judge, Talagang dated 5.6.1995 the Petitioner/plaintiff has come-up in revision before this Court.
7. I have heard the learned counsel for the parties and I have also gone through the record placed before me.
8. Learned counsel for the petitioner argued that the judgment and decree passed by the learned Addl. District judge is absolutely against law and facts on the record because basically findings of the learned first Appellate Court over issues Nos. 5 and 6 are incorrect, result of mis-reading and non-reading of evidence of the parties all issues were not disposed of, the Petitioner/plaintiff had the qualification of Sharik-i-Khata and being so his right was superior as compared to the defendant and that in fact the suit for possession through pre-emption was dismissed on technical ground. Therefore, the judgment and decree passed by the learned first Appellate Court is liable to be set aside. He added that the requirements of Talb-e-Muwathibat and Talb-e-Ishhad were fulfilled as required under the law. He referred to the cases reported in Nadir Khan v. Itebar Khan (2001 SCMR 539) = (2001 PSCC 846); Saheb Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 S.C. 162); Haji Din Muhammad through Legal Heirs v. Mst. Hajra Bibi and others (PLD 2002 Pesh.
21); and Khuda Bakhsh v. Muhammad Yaqoob, etc. (1981 SCMR 179) in support of his arguments.
Which have been opposed by the learned counsel for respondent who submitted that die Petitioner/plaintiff had failed to fulfil the talabs as required under the law, therefore, the suit for possession through preemption filed by him was rightly dismissed by the learned first Appellate Court. He referred to the cases reported in Abdul Qayyum v. Muhammad Rafique (2001 SCMR 1651) and Muhammad Mai Khan v. Allah Yar Khan {2002 SCMR 235) in support of his contentions.
9. It appears from the perusal of para No. 7 of the judgment passed by the learned first Appellate Court that the learned counsel for the parties confined their arguments to the extent of issues Nos; 5 and 6 with regard to superior right and talabs and when such situation arises then for the Appellate Court it is not necessary to discuss each and every issue. Even at this stage the basic point for discussion was as to whether the pre-emptor had made Talb-e-Muwathibat and Talb-e- Ishhad in accordance with law and it may be mentioned here that if the pre-emptor fails in this regard then his having superior right of pre-emption on basis of any qualification carries no importance because such right shall be extinguished if pre-emptor had failed to make the demands of pre-emption i.e. Talb-e-Muwathibat, Talb-e-Ishhad and Talb-i-Khusumat.
10. Now the point for examination is as to what are the essentials of Talb-e-Muwathibat, in other words Talb-e-Muwathibat means immediate and by the pre-emptor in a Majlis in which he has come to know of the sale and his declaration to exercise the right of pre-emption while Talb-e- Ishhad means the demand by establishing the evidence and in this regard the requirement of the law is that when the preemptor has made Talb-e-Muwathibat he shall as soon as thereafter possible, but not later than two weeks from the date of knowledge made Talb-e-Ishhad by sending a notice in writing attested by two truthful witnesses under registered acknowledgement due to the vendee in order to confirm his intention to exercise the right of pre-emption.
11. When Talb-e-Muwathibat is allege to have been made it means that the pre-emptor has to establish at the stage of evidence, the participates of the Majlis, the person who provided the knowledge for sale and that the place where the meeting was held. If these ingredients of Talb-e- Muwathibat are not fulfilled by the pre-emptor by appearing himself in the witness-box and by producing the relevant witnesses, it would mean that he had failed to fulfil the Talb-e- Muwathibat.
Under the latest law as it reflects from the judgment of the Superior Courts that these ingredients may not be mentioned in the pleadings but if these ingredients are mentioned generally in pleadings then the evidence of the preemptor should not be contradictory to the facts incorporated in the plaint reflecting on Talb-e-Muwathibat and if there are material contradictions and any material witness is withheld by the pre-emptor it shall be presumed that he had failed to make Talb-e-Muwathibat and that had he produced any witness connected with the Talb-e- Muwathibat, he might have deposed against the pre-emptor.
12. The date of knowledge is quite essential to be established if the pre-emptor has to successively show that he had fulfilled the Talb-e-Ishhad. If date of knowledge is not established then the sending of notice through registered A.D. Attested by two truthful witnesses would carry no importance .Ind in the same way if two truthful witnesses are withheld at the stage of evidence it would mean that had those witnesses been appeared, they would have deposed against the preemptor, even material contradictions in case of fulfilment of Talb-e-Ishhad would carry much importance if there appears that the claim of fulfilling the Talb-e-Ishhad was doubtful, therefore, the conclusion is that if the requirement of talabs ar mentioned in the plaint then the facts in this regard must be compared with the evidence and benefit of doubt should be given if it arises out of the material contradiction.
13. If in the instant case the Petitioner/plaintiff mentioned in para No. 3(b) of the plaint that as soon as he came to know about the sale he being Sharik-i-Khata announced to exercise his superior right and it is also mentioned in this para that he repeated his declaration in presence of Feroze Khan and Muhammad Hassan witnesses and later on went alongwith these witnesses to the vendee and on 9.1.1993 he sent the notice of Talb-e-Ishhad. It is obvious that he did not mention the name of informer about the sale but when he came in the witness-box he stated that Ahmad Khan had told about the sale of the suit land on which he had stated to exercise his superior right of pre-emption; During cross-examination he stated that he had not brought Ahmad Khan alongwith him and that he does not remember the date of sale which was told by Ahmad Khan, leaving aside the mentioning of time, date and place in the pleadings, the point for examination is as to what is the impact of not producing Ahmad Khan. Abdul Rehman's as PW-1 did not state that he had Talb-e-Muwathibat in presence of Muhammad Hassan and Feroze Khan his witnesses and simply stated that Muhammad Hassan and Feroze Khan had signed the notice sent to the vendee, It means that on the point of fulfilment of Talb-e-Muwathibat the statement of pre-emptor is solitary in nature and when the name of informer was not mentioned in the plaint when mentioning of his name in the evidence was an improvement in the claim of the pre-emptor and when Ahmad Khan was withheld it means that had he appeared as a witness he would have deposed against the pre-emptor, therefore, actually the petitioner had failed to fulfil the: requirement of Talb-e- Muwathibat. The discussion of evidence by the learned first Appellate Court on this point is quite elaborated.
14. Now as far as Talb-e-Ishhad is concerned Abdul Rehman's while appearing as his on witness did not state that he carried Muhammad Hassan and Feroze Khan to the vendee to establish the evidence on Talb-e-Ishhad. Feroze Khan (PW- 2) and Muhammad Hassan (PW-3) also stated about to come alongwith the pre-emptor to send the notice of Talb-e-Ishhad. Even in this notice Ex.P-1 the date of knowledge is not mentioned which is the necessary ingredient of the notice of Talb-e-Ishhad, if the findings of the learned first Appellate Court on the question of fulfilment of Talb-e-Ishhad is perused, it would look that the learned judge has thrashed out the entire evidence on this point strictly in accordance with law and particularly the comparison of the contents of the plaint and that the evidence on the record is worth mentioning, In the certified copy of the plaint, there is cutting on the name of Muhammad Aslam and it has been made as Muhammad Hassan but in the certified copy of the statement of Feroze Khan it remained as it is that Muhammad Aslam was the second attesting witness, In fact the material discrepancies pointed out by the learned first Appellate Court are such which force to believe that even Talb-e-Ishhad was not fulfilled in accordance with law. The mentioning of time, date, place and name of informer in the plaint are not essential to be mentioned but when facts in this regard are given in the pleadings, the same have to be compared with the contents of the evidence and after comparison of the defect is such that it forces to believe that Talb-e-Muwathibat and Talb-e-Ishhad were not fulfilled as required under the law then the preemptor certainly looses his superior right of pre-emption. The arguments advanced by the learned counsel for the Petitioner/plaintiff carry no force and the judgment passed by the learned first Appellate Court dated 5.6.1995 is upheld.
15. In view of the discussion above, this revision petition being without merits is hereby dismissed, however, with no order as to the costs.