' Through 'the filing of the present Revision Petition, the petitioners/defendants have called in question judgment and decree dated 28-2-1995, whereby the learned Additional District Judge accepted the appeal and decreed the suit, filed by the respondents/plaintiffs, by way of setting aside the judgment and decree dated 30-3-1992 passed by the learned Civil Judge, through which he dismissed the suit for possession through pre-emption, filed by the respondents/plaintiffs.
2. Facts, giving rise to the filing of the present Revision Petition are that the respondent filed a suit for possession through pre-emption, in respect of land measuring 4 Kanals, 17 Marlas (elaborately described in the plaint), sold by one Barkat Ali, favoring the petitioners vide sale-deed, registered on 19-6-1990,for a total consideration of Rs,60,000. It was stated in the plaint that the respondent had got two joint ways and means of irrigation; his land is contiguous to the disputed land; on attaining notice about the alleged sale he immediately announced Talb-eMuwathibat and thereafter dispatched a notice dated 29-9-1990 through registered A.D. Thus fulfilling the requirement of Talb-e-Ishhad but the petitioners refused to receive the same. It was further alleged in the plaint that consideration price of land was in fact Rs,45,370, but in order to defeat the right of pre-emption, the ostensible sale price was fixed at Rs,60,000. The petitioners, being the defendants in the suit, contested the same by way of filing the written statement, thereby raising preliminary objections and controverting the allegations made in the plaint, which gave rise to framing of certain issues. The learned trial Court after recording the evidence of the parties, decided all the issues in favor of the respondent, yet he was non-suited on Issue No,2, regarding requirements of Talb-e-Ishhad, and thus the suit, filed by the respondent' was dismissed by the learned trial Court vide judgment and decree dated 30-3-1992. The respondent felt aggrieved, thus assailed the aforesaid decision before the appellate forum, and the learned Additional District Judge accepted the appeal and ordered for decreeing the suit after the setting aside the judgment and decree passed by learned trial Court vide its judgment and decree dated 28-2-1995, hence the present revision petition.
3. Learned counsel for the petitioner has contended that the respondents failed to produce sufficient evidence, either oral or documentary, in order to prove that he has fulfilled the requirements of Talb-i-Ishhad within the parameters of law. He has further contended that the well reasoned findings given by the learned trial Court, on Issue No,2, has illegally been reversed by the learned Additional District Judge, who failed to appreciate the evidence on record, inasmuch as the learned Appellate Court misread the evidence on record and thus fell into legal error.
Conversely learned counsel for the respondent, while supporting the impugned judgment, has contended that issue regarding the fulfilment of the requirements of Talb-e-lshhad has properly been decided by the learned Additional District Judge, thus findings arrived at by the said Court are not liable to be interfered by this Court, in exercise of its revisional jurisdiction.
4. The only pivotal issue, now involved in this case is, as to whether the respondent fulfilled the requirements of Talb-e-Ishhad as required under the law. The respondent, in order to prove Issue No,2, produced eight documents, which also include a Registered Envelope containing the notice of Talb-e-Ishhad, which was allegedly not received by the petitioners. So far as the oral evidence is concerned, the plaintiff/respondent himself appeared as P.W.1, while one Muhammad Siddique appeared as P.W.2. Conversely, the petitioners produced two documents, including the registered sale-deed dated 19-6-1990, which were exhibited as Exh.D.l and Exh.D.2. So far as the oral evidence of the petitioner is concerned, he only appeared himself as D.W.1.
5. Admittedly, the onus of proving this issue was rightly placed upon the respondent/plaintiff to prove that he made the requirements of Talb-e-Muwathibat in accordance with the requirements of law. Admittedly the sale-deed was executed and registered on 19-6-1990, a notice of Talb-e- Ishhad was sent to the petitioner on 29-9-1990 and the suit, out of the present revision peiition has arisen, was filed on 17-10-1990. Upon the examination of para. 3 of the plaint, I find that although, it has been mentioned that the respondent made Talb-eMuwathibat in a Majlis, but he failed to give any date of making Talb-eMuwathibat. It has been asserted therein that as there was no response of Talb-e-Muwathibat, therefore, the respondent has sent a notice dated 29-9-1990, thereby making, Talb-e-Ishhad, but the petitioners refused to receive the said notice. It is evident from the perusal of para. 3 of the plaint, which is very crucial in determining the fulfilment of Talb-e-Ishhad, that neither any specific date for making the alleged Talb-e-Muwathibat has been given by the respondent, nor the persons before whom the said Talb was made have been named. I am of the view that it was necessary for the respondent to have specifically stated by giving the date of making Talb-e-Muwathibat in the plaint and giving the names of the persons before whom the said Talb was made. Obviously, when the respondent has not pleaded any such case in his plaint, he would be precluded from leading the evidence on said assertion.
6. Now coming to the evidence of the respondent with regard to Talb-e-Muwathibat, he has himself appeared as P.W.1 and stated that as soon as he came to know about the sale, he made a demand that he will file a suit for pre-emption, as he has got a superior right of pre-emption, and thereafter, the second notice was sent to the petitioner. P.W.2 has stated that as soon as the respondent came to know about the sale of the disputed land, he announced that he will claim pre-emption. P.W. I has stated in cross-examination that when he came to know about the sale of the land Muhammad Aziz and Muhammad Siddique were present there. Admittedly, Muhammad Aziz has not been produced as one of the witnesses. Even both the P. Ws. Have not given the date and time, when the plaintiff came to know about the sale of the land and he allegedly made an immediate demand regarding the purchase of the said land.
7. From the above narrative, it is established that the respondent failed to establish, either through the pleading or through the production of the evidence, which' mainly consists of the statement of the respondent/plaintiff himself, that he made a Talb-e-Muwathibat. Although the learned trial Court has held that the version of the plaintiff of Talb-e-Muwathibat stand proved, but while reversing the said findings of learned trial Court. I am constrained to hold, after the examination of the available record, especially the evidence produced by the respondent in this regard, that the respondent failed to make Talb-e- Muwathibat within the parameters of law.
8. Under section 13(3) of the Punjab Pre-emption Act, 1991, a preemptor after making "Talb-e- Muwathibat" shall have to make "Talb-eIshhad" as soon as thereafter but not later than two weeks from the date of knowledge. As noted above, in this case, the plaintiff has failed to establish that when did he make the "Talb-e-Muwathibat". When the date of Talb-e-Muwathibat is not determined, how could the respondent prove that he made Talb-e-Ishhad within a period of two weeks from the date of making Talb-e-Muwathibat. Even in the pleadings as well as through the production of the evidence, the respondent failed to give any date for issuing the registered notices to the petitioners. He has simply stated that thereafter, I sent a notice for second Talb but the notice was returned back to him undelivered P.W.2 has not said anything about the issuance of Talb-e-Ishhad. In this perspective, I am of the view that even if, the respondent is able to establish that in fact the registered notice acknowledgment due, allegedly making Talb-e-Ishhad, which was admittedly returned back to the respondent, is deemed to have been served on the petitioners, even then the respondent would not be able to prove that in fact Talb-e-Ishhad was made within the stipulated period, prescribed under the law.
9. Another aspect of the matter is that under the law, Talb-e-Ishhad is to be attested by two truthful witnesses. Perusal of Exh.P8., which is a notice of making Talb-e-Ishhad, found from the registered envelope, which was returned back to the respondent and opened by the learned trial Court, shows that two witnesses namely Amanat Ali and Muhammad Ali have been named, yet in order to prove Talb-e-Ishhad, the respondent did not produce any of the witnesses inasmuch as the learned Advocate, who issued the notice, was not produced in evidence. I am of the view, in these circumstances, that the respondent failed to prove that he has sent any notice in presence of the, witnesses, who have allegedly signed the notices. Even the statement of the plaintiff is silent about the material fact that who scribed the said notice and who were the witnesses who attested the said notice. Even the dispatch of notice has not been proved, as it was the duty of the respondent to have summoned the Record Keeper from the Postal Department in order to prove that envelope, containing the addressees of the petitioners, was sent to him and it was returned back to the respondent. The plaintiff failed to produce any evidence in this regard and it was necessary for him to prove the dispatch of notice and the return of notices to him. In this regard, the learned trial Court, after discussing the evidence on record; has came to the just and right conclusion.
10. Upon the examination of judgments passed by both the Courts below, I find that the learned trial Court has rightly appreciated the evidence on record and correctly recorded his findings, except the findings given on Talb-e-Muwathibat, whereas the findings rendered by the learned lower Appellant Court are contrary to the record of the case and said Court has not even appreciated the evidence on record in its true prospective. The learned Appellate Court has only relied upon the statement of the respondent itself and decreed the suit. By doing so, he has proceeded under erroneous assumption, thus I am not inclined to maintain the judgment passed by the learned Lower Appellate Court.
11. Upshot of the above discussion is that the revision petition stands accepted, judgment and decree dated 28-2-1995 passed by the learned Additional District Judge is hereby set aside, with the result that the judgment and decree dated 30-3-1992 passed by learned Civil Judge stands restored and the suit for possession through pre-emption, filed by the respondent, shall stand dismissed with no order as to costs.