The suit for possession through pre--emption, instituted by the petitioner qua the sale of suit land measuring 8 Kanals, 1 Maria, was decreed by the trial Court on 14-11-1995, where against the appeal tiled by the respondent-vendee was accepted by the learned Additional District Judge, Bhalwal, on 24-11-1997, the same has been assailed through this revision petition by the plaintiff-pre-emptor.
2. Since the appellate Court has reversed the findings of the trial Court on Issues No.(i) and (vi) i.e. Requirement of Talabs and cause of action, the same have become subject of challenge and criticism by the petitioner-plaintiff. It is contended by the learned counsel that Talabs had been performed by the petitioner in accordance with law and was found so by the trial Court which finding has illegally and erroneously been upset by the appellate Court. It is contended that deposition of the petitioner and his witnesses, who were laymen of ordinary prudence could not be interpreted in the manner, it has been done by the learned Additional District Judge. Reference in this context has been made by him to Muhammad Ayub Khan v. Muhammad Zaman and another PLD 1990 Pesh. 181; Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883 and Muhammad Ajiab and another v. Muhammad Afzal and 2 others 1998 SCM R 2396, to contend that the findings and judgment rendered by the First Appellate Court need to be reversed by this Court.
3. The learned counsel for the respondent on the other hand supports the judgment of the First Appellate Court and contends that the petitioner failed to comply with and fulfil the requirements of section 13 of Punjab Pre-emption Act, 1991, in accordance therewith. It is contended that the petitioner failed to prove that a jumping demand had been made by him on coming to know of transaction of the sale and that even giving of notice of Talb-e-Ishhad, had not been proved in accordance with law. He has placed reliance upon Mst. Amir v. Soini 1997 M LD 2376 and Abdul Qayyum v. Muhammad Rafique 2001 SCM R 1651 in support of his contentions.
4. In view of the judgments of the two Courts below being at variance, the record of the original Court was sent for which has been gone through with the assistance of the learned counsel for the parties. It may be mentioned that the sale took place on 12-1-1993 of which the petitioner-plaintiff as per contents of the plaint came to know on 18-2-1993 through Lai Khan P.W.2. Notice of Talb-e- Ishhad is said to have been issued on 25-2-1993. In paragraph 3 of the plaint, it was so stated and also averred that the petitioner-plaintiff asserted his right there and then and thereafter had issued notice of Talb--e-Ishhad. In view of such assertion having been denied by the respondent in his written statement, Issues Nos.(i) and (vi) assumed importance. The evidence produced by the petitioner-plaintiff was his own statement as P. W .1, wherein he stated that he came to know of the sale though Lal Khan a year and 9 months before from today. Similar were the statements made by Lal Khan P.W.2, Muhammad Akbar P.W.3, and Nawaz P.W.4, which were recorded by the Trial Court on 14-11-1994. Manzoor Elahi vendee---respondent appeared as D.W.1, to support his assertion and plea. The learned trial Judge on his view of the matter came to the conclusion that as per depositions of the petitioner and Lal Khan. Talb-e-Muwathibat was made on 18-2-1993. He also came to the conclusion that requirement of Talb-e-Ishhad had also been fulfilled in accordance with law. In disagreeing with the findings of the trial Court, the learned First Appellate Court, has considered the evidence threadbare with quite care in depth. As mentioned above, though in the plaint the assertion was that the petitioner came to know of the sale on 18-2-1993, yet while appearing as P.W.1, the petitioner and P.W.2, Lal Khan, did not state like that and instead a loose deposition was made that it was a year and 9 months from today, when the petitioner got knowledge about the sale. Such a statement did not coincide with the assertion made and the date pleaded in the plaint. Since the statements of the witnesses were recorded on 14-11-1994, the learned Appellate Court rightly calculated the period and came to the conclusion that the date of knowledge thus would have been 14-2-1993 and not 18-2-1993 (as was asserted in the plaint) and thus it was not a case of making jumping demand as was envisaged by section 13 of the Act. The perusal of statements of the petitioner and his witnesses does not show that the Appellate Court misread or non-read their depositions. A mere possibility of another view of the depositions made by the witnesses would not render the finding given by the Court as illegal. It may be observed that the petitioner or his witnesses could quite easily state the date of knowledge as had been mentioned in the plaint, but they failed to adhere to the same and made the statement Such statements had thus necessarily to be interpreted by the Court which the learned Appellate Court was obliged to do. Insofar as the view taken by the Appellate Court about Talb-e-Ishhad is concerned, the same also find support from the evidence on the record and the law applicable.
Reference in this context may be made to Mst. Amir (supra) 1997 M LD 2376. Reliance of the learned counsel for the respondent upon Abdul Qayyum (supra) is also not inapt, inasmuch as it was laid down by their lordships that Talb--e-Muwathibat had to be made immediately without wasting time. It was also held that performance of Talb-e-Ishhad has been "considered to be one of the most important conditions for enforcing right of pre-emption and if a notice has not been sent as per the requirement of law no other conclusion can be drawn except that Talb-i-Ishhad has not been made, as a result whereof right of appellant shall be deemed to have been extinguished". In view of the pleadings of the parties and the evidence that has come on the record in this case, reliance upon Muhammad Ayub Khan's case (supra) and Muhammad Ajaib case (supra) by the learned counsel for the petitioner is not well founded. -The appreciation of the evidence made and the view taken by the learned Appellate Court in the present case is consistent with the law on the subject, which need no interference by this Court in revisional jurisdiction.
As a result of the above, the petition is dismissed with no order as to costs.