M1AN SAQIB NISAR, J.--- Suit for pre-emption, filed by respondent No. I 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 th learned Addl. 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 in fact 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-e-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-e-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 and decree dated 22.1.1992, though found that the respondent No. 1 has a superior right of preemption and that the transaction is a sale but dismissed the suit that respondent/plaintiff has not been able to prove the taibs. Respondent No. 1, preferred an appeal, which has been accepted vide judgment anu decree dated 1.2.2000, the findings of the Trial Court on the issue of talbs has been 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 superior right and nature of transaction, but' has,not been able to show that such concurrent finding, is erroneous on account of mis-reading 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/pre-emptor, has categorically stated that the learnt about the sale three weeks before the institution of the suit, which was filed on 14.11.1990 thus calculating three weeks from the above date, would mean that he attained the knowledge on 31.10.1990, but while appearing as. PW- 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 half month. It is also argued that in the plaint, it is stated that the plaintiff-pre-emptor attained the knowledge through Muhammad A.I, defendant No. 2, one of the vendees, however, in his statement as PW-3, he mentioned that information was, given by Naiz PW-4 and Atta Muhammad.
Both these witnesses, while appearing as PW-4 and PW-5, stated in line with the above. It is also stated that notice of Talb-e-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 PW- 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 notice of Talb-e-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, if the plaintiff/pre-emptor had made talabs or even issued notice of Talb-e-lshhad.
3. 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-D of 1993 has held that there was no requirement of issuance of notice of Talb-e-Ishhad in writing and this decision remains conclusive. It is also submitted that as per judgment reported as nD 1994 SC 1 at 15, the Shariat Appellate Bench of the Honourable Supreme Court, has held that non-sending of written notice of Talb-e-Ishhad would not effect the right of the pre-emptor.
4. 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 sate three weeks before the institution of the suit; suit was filed on 14.1.1990, which means that he attained the knowledge on 31.10.1990, whereas while appearing as a witness PW-3, lie as pointed out by teamed counsel for the petitioner, stated in his statement-in-chief, to the contrary and deposed that the sale was learnt by him about two and half months before institution of the , suit, but in the cross-, examination stated it to be one and half month. Moreover, in his plaintiff/pre-emptor has not uttered a single word, if on learning about the sale, he made Talb-e-Mivathibat 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 term has mentioned that he learnt about the sale through Muhammad All, defendant No 2, in the presence of the witnesses, but in his statement as PW-3, he deposed that Niaz Muhammad, PW-4 and Atta Muhammad, PW-5, told him of the above fact. 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 be 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 PW-3 to PW-5, it is obvious that such evidence is beyond the case of the plaintiff set out in the plaint 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-e- 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 PW-3, that he made the first talb. 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 pre-empt the sale in the same majlis when he got the information. Therefore, I am constrained to held that the pre-emptor failed to prove Talb-e-Muwathibat.
5.. Now coming to the question of Talb-e-Ishhad, petitioner in his examination-in-chief, has not stated, if a notice was issued to the respondent, which was attested by two truthful witnesses. Niaz Muhammad PW-4 and Atta Muhammad PW-5 are also silent about this factum. According to Section 13(3) of 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 PW-6, who was acting as postman and has deposed that he received three envelops from plaintiff-pre-emptor does not improve his case, because it has not been proved on the record, if in such envelops, there were valid notices of Talb-e-Ishhad or some other document/blank paper.
The scribe of the cotice has not been examined; PW-4 and PW-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 them 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.
6. I am not impressed with the argument of learned counsel for respondent that in the earlier decision, given by this Court, in C.R. No. 1053-D of 1993, it was ever conclusively determined that the notice of Talb-e-lshhad 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-e-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.
Re.