SARDAR MUHAMMAD RAZA KHAN, J.---Involving one and the same question of law and fact between the same parties, the two appeals shall be decided through this single judgment.
2. Abdullah Shah has challenged the judgments dated 5-10-1999 passed by a learned Single Judge of Lahore High Court, Multan Bench in Civil Revisions No,8 of 1999 and 9 of 1999 accepting the revisions of respondents/vendees and non-suiting the petitioner/pre-emptor.
3.. Abdullah Shah filed a suit for pre-emption qua land measuring 14 Kanals, 4 Marlas purchased by Sardar Ali etc. Through Mutation No,117 dated 31-12-1989. The learned trial Court non-suited the preemptor on 10-6-1991 but, on appeal, the pre-emptor was granted a decree by the learned Additional District Judge on 23-11-1994. The learned High Court through the impugned judgment and while accepting the revisions of the vendees, non-suited the pre-emptor restoring the judgment of the trial Court.
4. In the instant case the trial Court and the High Court concurred on the point that the pre-emptor had failed to perform Talb-i-Ishhad by sending registered notice under section 13 of the Punjab Pre-emption Act, 1991. The dismissal of suit occurred on two-fold grounds. Firstly, that there was material contradiction among the witnesses qua the performance of Talb-i-Ishhad and secondly that no registered notice was ever issued to the vendees.
5. So far as the contradiction in evidence is concerned, the trial Court as well as the High Court were perfectly correct in holding that the evidence was discrepant and that one Jagga, originally being mentioned in the plaint as witness to Talb-i-Ishhad and having been abandoned by the pre- emptor, was produced in defence by the vendee who totally disproved the incident of Talb-i- Ishhad having ever been made or having ever been witnessed by him. After having gone through the evidence on record we are of the view that the concurrent findings of the Courts aforesaid are correct and the learned Additional District Judge had fallen into error while appreciating this fact.
6. Referring to a proviso to subsection (3) of section 13 of the Punjab Pre-emption Act, it was contended on the behalf of the preemptor that in the given circumstances the pre-emptor was exempted from making Talb-1-Ishhad through a registered notice arid it was sufficient for him to have made such Talb in the presence of two truthful witnesses. .
7. The proviso aforesaid is to the effect that in areas where, due to lack of postal facility, it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses. After careful perusal of the proviso aforesaid, we are of the view that the above exemption relates more to a question of the fact than of law. It is because whosoever claims such exemption, it is his bounden duty to prove a material question of fact that no postal facilities were available in or around the village that he resided in.
8. The evidence would suggest that the pre-emptor has not only failed to prove this fact but it was rather not alleged in the plaint either. In the circumstances, the learned High Court was perfectly justified in arriving at the conclusion that it arrived at. The record rightly suggests that the pre- emptor was not only not entitled to the exemption allowed by proviso to section 13 (3) of Punjab Pre-emption Act, 1991 but he even failed to prove on factual side the making of Talb-i-Ishhad in the presence of two truthful witnesses, as facilitated by the proviso aforesaid. Consequently, both the appeals are hereby dismissed.