1. As a sequel to a decree for specific performance granted in favour of the petitioner, sale-deed dated 25-7-1993, was executed for the suit-land (39 Kanals, 4 Marlas description whereof mentioned in the plaint). A suit to pre-empt the said sale was instituted by the respondent brother of Noor Muhammad vendor, that he had superior right being a co-sharer, which suit was contested by the petitioner and was after due trial dismissed by the trial Court vide judgment and decree dated 10-9-1997. The respondent/ plaintiff, however, preferred an appeal, which was accepted by the learned Additional District Judge, Kharian on 26-2-1998 and his suit was decreed. This is revision petition there against by the vendee.
2. It was Issue No.2, as to whether the plaintiff had made legal Talbs upon which the finding recorded by the learned trial Judge, has been reversed by the Appellate Court. The learned counsel for the petitioner assailing the view taken by the learned Appellate Court contends that the respondent plaintiff had failed to produce any convincing evidence as to making of Talbs and was rightly non-suited by the learned trial Court. With reference to the depositions of the plaintiff- respondent and two witnesses produced by him in regard to Talbs namely Iftikhar Nazir P.W.4 and Muhammad Ijaz P.W.5, it is pointed out that in view of material contradictions inter se, their testimony was not creditworthy. It is contended that the essential particulars as to Talb-e- Muwathibat and of Talb-e-Ishhad as envisaged by section 13 of the Act were neither mentioned in the notice nor pleaded in the plaint. By making reference to Muhammad Ramzan v. Lal Khan 1995 SCMR 1510, Ikram-ud-Din and others v. Ghulam Ahmad Khan and others 1995 MLD 1689, Mumtaz Hussain and another v. Muhammad Achar and 2 others 1991 CLC 209, Ghulam Jilani and 3 others v.
2. Ghulam Muhammad and 7 others 1991 SCMR 2001, Mst. Sooban Bibi and 3 others v: Mst. Khatoon and 3 others PLD 2001 Lah. 245, it is contended that the learned Appellate Court acted illegally in reversing the finding recorded by the learned trial Court. On the other hand, the learned counsel for the respondent supports the judgment of the learned Appellate Court and contends that there were only minor discrepancies in the statements of the witnesses which could be ignored by the Court and non-mention of date, place and time of Talb-e-Muwathibat in the notice or the plaint, would be immaterial. According to him, the pleadings and the evidence that was produced before the Court is to be read as a whole and the better statement made by the respondent on 13-6-1994, would be of no relevance in view of his statement as P.W.3, recorded later on 3-5-1997. He has made reference to Muhammad Gul v. Muhammad Afzal 1999 SCMR 724, Haji Noor Muhammad v.
3. Abdul Ghani and 2 others 2000 SCMR 329, Nadir Khan v. Itebar Khan 2001 SCMR 539, Khalid Hussain through Aftab Hussain v. Muhammad Baqir and 2 others PLD 2002 Lah. 280 and Dr. Muhammad Ayub Khan v. Haji Noor Muhammad 2002 SCMR 219.
3. In view of the variant approach of the two Courts below, the record of the case has been gone through and examined with the assistance of the learned counsel for the parties. As mentioned above, the sale took place on 25-7-1993. It was sale by Noor Muhammad, the brother of respondent-- plaintiff in favour of the petitioner. On 25-8-1993 (Exh.P.3) notice of Talb-e-Ishhad was issued. It was signed by Iftikhar Nazir, P.W.4 and Muhammad Ijaz P.W.5, thumb --marked the same. It does not state the date on which the respondent-plaintiff came to know of the sale, loose and vague phraseology has been used therein:-- and that.
4. It is silent as to where the respondent-plaintiff acquired knowledge of the sale in whose presence and when. The suit was thereafter instituted on 16-10-1993, paragraph 4 of the plaint again does not disclose the date, place, time and persons in whose presence he acquired knowledge or made Talb-e--Muathibat. Even it was not mentioned that such a demand was made from the vendee.
5. Since to the written statement filed by the petitioner, assertion as to making of Talbs had been controverted and denied, the better statement of the parties was recorded by the learned trial.
6. Judge on 13-6-1994. It was stated by the respondent that Ch. Muhammad Ijaz had told him about the sale on 24-8-1993, when he declared that he had superior right. Better statement of the petitioner was also recorded on the same day, when the making of Talbs by the respondent was denied by him. In the evidence led by him, the respondent-plaintiff himself appeared as P.W.3 and stated that he came to know of the sale on 24-8-1993 from Iftikhar Nazir. This was in contradiction to his better statement made on 13-6-1994, when he had stated that Ch. Muhammad Ijaz had told him. In the cross-examination it was stated by him that when he declared about his superior right, only Iftikhar was present and none else. It. Was also stated that he had not gone to the petitioner- vendee. Iftikhar Nazir was produced as P.W.4. It was stated by him that he had informed the respondent-plaintiff on 24-8-1993, about the sale. Statedly, notice (Exh.P.3) was signed by him but showed his lack of knowledge as to who had written the same and what were contents of the notice. Muhammad Ijaz, who was produced as P.W.5, stated that it was the respondent---plaintiff, who had informed him on 24-8-1993 about the sale of the land and that he had put his thumb- mark on the notice. He further stated that he had not visited the vendee-defendant. These are only few salient features of their statements, which go to show inconsistency and lack of coherence in their depositions. An important and essential aspect of the matter as to when and in whose presence and what time, Talb-e-Muwathibat was made by the respondent-plaintiff, is totally missing. There is rather a material contradiction in the statement of the respondent-plaintiff.
7. According to the better statement made by the respondent-plaintiff, it was Muhammad Ijaz, who had informed him about the sale, whereas in his statement as P.W.3, he attributes the acquisition of knowledge from Iftikhar Nazir. This is not a mere discrepancy of trivial nature, which could be ignored rather it was of material relevance and importance as prior to the making of his better statement dated 13-6-1994, it was neither disclosed anywhere about the essential ingredients of Talb-e---Muwathibat nor paragraph 4 of the plaint gave any essential particulars. It also reflected upon the credibility of the depositions made by the witnesses, who were supposed to be truthful in terms of section 13(3) of the Punjab Pre-emption Act, 1991. The reading of the better statement and later statements in Court as P.W.3, P.W.4 and P.W.5 respectively by the respondent-plaintiff and his two witnesses namely Iftikhar Nazir and Muhammad Ijaz leave no scope for doubt that they had not come out before the Court with truth. It was in such a state of the material on the record that the learned trial Court did not believe the version of the respondent-plaintiff and recorded the finding against him qua Issue No.2. The learned Additional District Judge, however, while reversing the finding though noted the contradictions in the statements of the respondent-plaintiff and his witnesses, yet the lapse of time was considered to be a justification for the same. It was observed by him that the plaintiff could be tutored on 3-5-1997, when he was appearing as P.W.3, that he should name out Muhammad Ijaz informer instead of Iftikhar Nazir, but this was not done. This also shows bona fides of the plaintiff. This was wholly a conjectural approach based on assumptions. A party who had taken a particular stand before the Court, any contradiction in his stance could only be explained by him during the course of examination, which was not done in the instant case. It was not for the Court to assume the possible reason for such a material contradiction. The reasoning and conclusions drawn by the learned Additional District Judge, is thus not consistent with the material on the record and law applicable. There is no cavil insofar as the proposition goes that pleading need not contain the evidence, but in a case of this nature, where the essential ingredients and particulars about the very basis of the right of pre-emption i.e. Making of Talbs are absent and lacking such omissions in the notice and pleadings do attain significance, as the failure of making of Talbs in accordance with law results in the extinguishment of the right of pre- I emption. In the facts and circumstances thus the judgment of the learned Additional District Judge is not sustainable in law, the same is set aside.
8. As a result of the above, this revision petition is accepted. The judgment of the learned Appellate Court dated 26-2-1998 is set aside and that of the learned trial Court dated 10-9-1997, is restored.
9. No order as to costs.