' Vide Mutation No,1639 attested on 12-9-1995 the respondents purchased suit-land, mentioned in the plaint, for a consideration of Rs,50,000. On 18-12-1995 the petitioner filed a suit for possession of the suit-land by pre-emption. He claimed to be co-sharer and owner of adjacent land.
Performance of Talb was pleaded. The respondents filed a written statement contesting the said contents of the plaint. Following issues were framed:--
(1) Whether the suit being suit for partial pre-emption is liable to be dismissed?
(2) Whether the defendants are entitled to the incidental charges, if so, to what extent?
(3) Whether the defendants are entitled to special costs?
(4) Whether the suit property was purchased by the defendants for a sum of Rs,50,000 actually and bonafidely?
(5) Whether the plaintiff has got superior right of pre-emption qua the defendants?
(6) Whether the suit property was sold out for a sum of Rs,30,000 only?
(7) In case the above issue is not proved, what can be the market value?
(7-A) Whether the plaintiff asserted various 'Talbs' as per law?
(8) Relief.
' Evidence of the parties was recorded. Under Issue No,5 it was found that both the parties have an equal right of pre-emption being co-sharer in the suit-land. Issue No,4 was answered in favour of the respondents. Issues Nos.1 and 3 were decided against them. Issues Nos.2 and 7 were declared redundant. Issue No,7-A was found against the petitioner and his suit was dismissed vide judgment and decree dated 29-6-1998. A first /appeal was filed by the petitioner wherein only finding on said Issue No,7-A was contested by both the parties. Learned District Judge, Chakwal, confirmed the said finding of the learned trial Court and dismissed the appeal on 29-5-1999.
2. Learned counsel for the petitioner contends that the impugned judgment and decrees are violative of the law declared by the Honourable Supreme Court in the case of Jalal Din and another v. Hakeem Chiragh Din and others PLD 1982 Se 41. According to him notwithstanding the wrong date mentioned by PW.2, the entire statement had to be considered in all attending circumstances of the case before non-suiting the petitioner for what, according to the learned counsel, was natural variation. Learned Counsel for the respondent, on the other hand, contends that the mention of the said date by P.W.2 renders either of two witnesses to be untruthful and consequently it cannot be said that the learned Courts below have misread the evidence on record.
3. I have examined the copies of the records with the assistance of the learned counsel for the parties. It will be noted that before me as well parties have only contested the said matter regarding fulfillment of Talb. Now in para.2 of the plaint it was stated that the petitioner came to know about the sale on 11-12-1995 He made the Talb and then on 12-12-1995 issued a notice of Talb-i-Ishhad under registered cover A.D. Now Ghulam Haider appeared as P.W.1 and stated that Iqbal told him on 11-12-1995 about the sale and he made the Talb. In his cross-examination he reiterated that he came to know about the sale on 11th. He further discloses in the cross- examination that Iqbal told him in very early hours while he was taking tea. Now Muhammad Iqbal appeared as P.W.2 he was aged 70 years on 12-7-1996 when his statement was recorded. He proceeded to state that he came to know about the sale on 10-12-1995 and told the plaintiff.
Further state that on 10th he told the plaintiff early in the morning. Continuing with his examination he" stated that on 10th they came to office of a Lawyer and notice was got written. This is how he responded to a suggestion in the cross-examination.
4. I may further state here that notice referred to by both the witnesses is on record as Exh. P.1 and bears date 12-12:1995 and narrates that the petitioner came to know about the sale on 11-12-1995 when he made the first Talb. It is attested by Muhammad Iqbal P.W.2, and Fazal Hussain P.W.3.
Muhammad Khan one of the respondents appeared as D.W.1 and did not deny the receipt of the notice.
5. Now learned District. Judge has observed that the said date cannot be described as slip of tongue since the witness reiterated the same date in the cross-examination. However, at the same time it is but obvious on the face of record that both the learned Courts below have not taken into consideration the age of the said witness. Similarly general tenor of the statement of P.W.2 in juxtaposition to the statement of P.W.1, the contents of the plaint and notice Exh.P.l have not been considered. P.W.2 began by stating that he came to know about the sale on 10-12-1995. He told the plaintiff. He told him early in the morning on 10th and the plaintiff made the Talb. Then he proceeds further as follows:-- ' This statement was immediately followed by the following:- ' It will thus be seen that barring mentioning of word 10th on the said two occasions after describing full date of knowledge as 10-12-1995, there is nothing in the statement of this witness to make it discrepant with reference to the statement of the petitioner. The dictum in the said case being relied upon by the learned counsel has been reaffirmed by the Honourable Supreme Court with reference to a pre-eniption suit and particularly the matter of proof of Talb-i-Muwathibat in the Case of Abdul Qayum through Legal Heirs v. Mushke-e-Alam and another 2001 SCM R 798 it has been observed by their Lordships, after noting the apparent difference of some days in the matter of making of Talb-i-Ishhad, by various witnesses, as follows:-- "The question as to on which date the notice was got prepared was immaterial, as for the above mentioned reasons, witnesses were not expected to remember each and every date after such a long time and such variations are always held to be natural for they are not to give statement as tape-recorders. The memory of each and every human being is not the same, therefore, it has been proved on record substantially that requirements of performance of Talb-i-Muwathibat and Talb-iIshhad had been fulfilled and proved."
' The appeal of the pre-emptor was allowed.
6. I, therefore, do hold that making of Talb-i-Muwathibat have been substantially proved. In the matter of Talb-i-Ishhad learned District Judge has observed that the same P.W.2 Muhammad Iqbal stated that notice was attested by him and one Fazal Karim whereas the name of other witness is Fazal Hussain. To my mind this hardly constitutes a major discrepancy keeping in view the age of the P.W.2.
7. Now it has been found by the learned trial Court that both the parties are equipped with equal right of pre-emption as both of them are co-sharer in the suit-land. Now in terms of section 20 of the Punjab Pre-emption Act, 1991 all three parties will share the property equally.
8. This civil revision is partly allowed. The judgments and decrees passed by both the learned Courts below are set aside. A decree is passed in favour of the plaintiff/petitioner and against the defendants/respondents for possession by pre-emption of 1/3rd share in the suit-land mentioned in the plaint subject to deposit of Rs,16,667. This amount after adjusting any amount that might have been deposited by the petitioner in the trial Court towards 1/3rd of the sale price, shall be so deposited on or before 15-1-2004. In case the amount is not so deposited upon adjustment as stated above on or before 15-1-2004, the suit shall stand dismissed with costs throughout. At the moment the parties are left to bear their own costs.