' The brief facts out of which present revision arises are that Bahawal Bakhsh original owner sold land in question measuring 28-Kanals, 7 Marlas to Ghulam Haider and another vide registered sale-deed dated 8-9-1991 for a consideration of Rs.36,000, which is situated within the revenue estate of Chak Khanan Tehsil and District Sialkot. The predecessor in interest of the petitioners filed a suit for preemption against the respondents in the Court of Civil Judge 2nd Class, Siallcot, on 28- 11-1991, on the ground of Shafi Shank. Respondent No.3 also filed a suit for preemption against the remaining respondents on 7-1-1992 on the same ground in the said Court. The trial Court consolidated both the suits. The respondents filed written statement controverted the allegations levelled in the plaint. Out of pleadings of the parties, the learned trial Court framed the following issues:-- ' Issues
(1) Whether the suit is time-barred? OPD
(2) Whether the plaintiff is estopped to file the suit? OPD
(3) Whether the suit is not properly valued for the purposes of court fee and if so its effect? OPD
(4) Whether the plaintiff has superior right of pre-emption? OPP
(5) Whether the plaintiff has fulfilled the requirements of Talbs?
(5-A) Whether Muhammad Shafi plaintiff of Suit No.2 is entitled to decree as claimed for? OPD-3.
(5-B) Whether the suit is filed with collusion of the respondents No.1 and 2? OPD-3.
(6) Relief.
2. The learned trial Court dismissed the suit vide judgment and decree dated 18-3-1993. The petitioners being aggrieved filed an appeal before the learned Additional District Judge, Sialkot, who dismissed the same vide impugned judgment and decree dated 28-4-1998. The petitioner being aggrieved filed this revision petition.
3. The learned counsel of the petitioner submits that the trial Court erred in law to consolidate the suits by virtue of which the petitioners are denied justice and evidence of the parties was recorded in one suit, which tantamount to read the evidence of one case in another case, which is not permissible under the law. He further submits that respondent No.3 did not challenge Talb-e- Mawathibat in written statement as is evident from para.3 of written statement, which is at page 14 of this file, therefore, plea which was not raised by the respondents, petitioners are not bound to prove the same on the well-known principle that the fact which was not denied by the opposite party cannot be proved by the party. In support of his contention, he relied upon the following judg-thenta: "Mst. Kharo v. Sher Afzal alias Sheray" PLD SCMR 1844.
' Abdul Hamid v. Haji Shabbir Khan and another" PLD 1995 SC 649.
' He further submits that the petitioners have placed on record following, documentary evidence.
Exh.P.1 Power of Attorney executed by Ghulam Haider plaintiff predecessor in interest of the petitioners in favour of Amjad Ali, Exh.P.2, Register Haqdaran Zameen, Exh.P.3 Khasra Girdawri. -The- petitioners also placed on record notice and receipt, therefore, both the Courts below erred in law not - to consider the aforesaid documents, which is not in consonance with the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- ' Hakim Khan v. Aurangzeb and another PLD 1975 Lah.
1170.
' Muhammad Siddique v. Faqir Muhammad 1993 CLC 1158.
' Abdul Malik v. Muhammad Latif 1999 SCMR 717.
' Nathe Khan v. Mst. Rahmat Bibi and others PLD 1961 Baghdad-ulJadid 96.
' He further submits that respondents have not taken a specific plea qua the Talbs in the written statement as is evident from para.3 and preliminary objection No.1, therefore, both the Courts below erred in law to decide the case against the petitioners in violation of the mandatory provisions of Order 8, rule 3, C.P.C. And the law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:-- ' Govindram Jaisiram and another v. Gulab Rao Mandeo Rao (AIR 1949 Nagpur 394).
' Ganga Prasad v. Prem Kumar Kohli (AIR 1949 Allahabad 173).
4. The learned counsel of respondents submits that the petitioners have read contents of written statement of co-preemptor whereas the respondents have controverted the allegations by raising all legal and factual objections qua Talbs as is evident from preliminary objection No.1 and reply of para.3 on merits, which is at page 16 of this file. He further submits that -petitioners 'have not produced any notice and receipt on the record qua issuance of notice to the respondents whereas respondents have denied specifically that respondents did not receive any notice. He further submits that both the Courts below have given concurrent findings of facts against the petitioners and the petitioners failed to point out any infirmity or illegality committed by both the Courts below, therefore, revision petition has no merit. The learned counsel of the petitioner in rebuttal submits that both the Courts below have decided the case without application of mind and without proper appreciation of evidence on record as is evident from the contents of the impugned judgment.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6-A. The first objection of the petitioners qua consolidation of the suits is not against the principle of justice and it is in accordance with section 99 of C.P.C. Therefore, judgments of both the Courts below cannot be set aside on this objection. It is pertinent to mention here that the petitioners have not raised objection before the trial Court qua consolidation of both the suits i.e. The petitioner's suit as well as the suit of respondent No.3. It is clear that the petitioners/plaintiffs did not raise the consolidation of the two suits at a proper time before the trial Court and allowed the trial Court to proceed in the matter and after the decision of the trial Court, the petitioners have raised objection with regard to the consolidation of two suits, which was rightly rejected by the First Appellate Court.
The objection is of procedural nature. It is settled principle of laW that the procedural defect should cure by provisions of section 99 of C.P.C. In arriving to this conclusion, I am fortified the law laid down by the Honourable Supreme Court in Alam Khan v. Ghulam Nabi Shah and Company 1992 SCMR 2375. I am also fortified the law laid down by this Court in Muhammad Rafique's case 1994 CLC 1683. It is also settled principle of law that if a decision is within the jurisdiction it should not be upset merely for technical and immaterial defects as the1800. The Legislature in its wisdom provided section 99 in C.P.C. 1908 under the heading no decree to be reversed or modified for error or irregularity not affecting the merits or jurisdiction. Meaning thereby the provisions of section 99, C.P.C. Forbid the decree from being reversed or cases being remanded in appeal on account of some error, defect or irregularity in the proceedings of the suit without their affecting the merits of the case or the jurisdiction of the Court. It is settled principle of law that where the supposed defect in the disposal of the suit by the trial Court could not have the consequence of affecting the merits of the case, the First Appellate Court had rightly not set aside the trial Court's decree on the basis of such irregularity in the disposal of the suit, which is in consonance the law laid down by this Court in Haji Ghulam Qasim v. WAPDA and 2 others PLD 1989 Lahore 476. The First Appellate Court after proper appreciation of evidence on record has approved the findings of the trial Court that both the sets of pre-emptors/appellants had failed to prove the requisite Talbs in accordance with law, which is condition precedent by virtue of section 13 of the Punjab Pre-Emption Act. The First Appellate Court has given findings that the first set of appellants before the trial Court had not even brought on the record any notice to make Talb-i-Ishhad and the second set of the appellants had sent the notice after more than one month of their knowledge, as they received the copy of the sale-deed (Exh.D.2) on 13-11-1991. The petitioners failed to prove Talb-i-Ishhad in accordance with law as is evident from the findings of the First Appellate Court in para.9. It is settled principle of law that this arrived at by both the Courts below while exercising powers under section 115 of C.P.C. The parameters has been prescribed by the Privy Council since 1949, in N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madrass PLD 1949 PC 26. The relevant observations as follows:-- "This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
7. The judgment of the Privy Council was considered and followed by this Court in "Board of Intermediate and Secondary Education, Lahore. v. Syed Khalid Mehmood" 1985 CLC 657. It is pertinent to mention here that judgment of this Court was upheld by the Honourable Supreme Court vide judgment dated 31-3-1985 passed in C.P. No.1146 of 1984, which was again reaffirmed and approved by the Honourable Supreme Court in the reported judgment Ghulam Qadir's case PLD 1988 SC 625. The learned counsel of the petitioners failed to bring the case within the parameters prescribed by the Privy Council in the aforesaid judgment. The learned counsel of the petitioner also failed to point out any infirmity and illegality in the impugned judgments of both the Courts below, therefore, I am not ' inclined to interfere in the concurrent findings of the facts of the Courts below, which have been given after proper appreciation of evidence on record. The judgments cited by the learned counsel of the petitioners are distinguished on facts and law as the respondents have specifically taken a stand qua the Talbs in preliminary objection No.1 and in reply of para.3 on merits. Even otherwise it is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts as the law laid down by the Honourable Supreme Court in Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213, therefore, judgments cited by the learned counsel of the petitioners are distinguished on facts and law.
' In view of what has been discussed above, this revision petition has no merit and the same is dismissed.