' Respondents lost through the suit for pre-emption against the appellants at the trial stage on the issue of Talbs, but on appeal, they succeeded and the suit has been decreed.
2. Briefly stated the facts of the case are that the land in dispute measuring 48 Kanals (described in Paragraph No,1 of the plaint), was purchased by the appellants through Mutation No,335, dated 26- 6-1991; the sale was pre-empted by the respondents through a suit filed on 30-9-1991 and in the plaint, it is stated that the respondents learned about the sale on 16-9-1991 from Muhammad Aslam, Allah Ditta and Ahmed Din and made Talb-e-Muwathibat; thereafter, they also got issued the notice of Talb-e-Ishhad on 23-9-1991. The appellants contested the matter and have disputed primarily the making of Talb-,eMuwathibat, but impliedly the notice of Talb-e-Ishhad has been admitted in the written statement. Anyhow, issues were framed; parties were put to trial; the respondents examined the informer Muhammad Aslam (P.W.2) and Allah Ditta (P.W.3) and one of the plaintiffs appeared as P.W.1. The learned Civil Judge, on the conclusion of the trial, has come to the conclusion that as per admission made by P.W.3, the respondents' own witness, the appellants as - the owners had cultivated the paddy crop on two acres of suit-land and had also taken share of four acres of sugarcane crops, which means that right from the beginning, the respondents had the knowledge of the sale but have failed to establish the Talb-e-Muwathibat, if made at the relevant time. The learned Court of appeal has reversed the finding on the issue of Talbs and by relying upon the same statement of P.W. 3, it has been held that the said witness has not conceded that the appellants took over the possession immediately on the attestation of the mutation, rather in the cross-examination, he has stated thai it was about three months after the mutation, which means that it is around the same time, when respondents are stated to have attained the knowledge of the sale i.e, on 16-9-1991 and made Talb-eMuwathibat.
3. I have heard learned counsel for the parties. As the conclusion of the two Courts below are divergent on the basis of the same evidence, therefore, in order to examine as to who out of the two forums below, has properly read the evidence, I have undertaken the task of considering the evidence myself. P.W.1 Ghulam Rasool one of the plaintiffs, has given no specific date in his statement, about learning the sale and making of Talb-e-Muwathibat, whereas in the plaint, it is mentioned as 16-9:1991. In his statement, which was recorded on 19-10-1993, it is stated that the sale took place about two years and four months, from the date thereof and the plaintiffs came to know of the sale, after two years and three months. If this statement is taken to be true, it does not correspond to the date i.e, 16-9-1991. It is also not stated, if on learning the sale, the other pre- emptor also made the Talbs, who even otherwise, has not been examined and plaintiff No,1 is not holding any authority on his behalf to make the statement. Likewise, P.W.2, Muhammad Aslam, has also not given any date and has vaguely stated that the sale was disclosed to the respondents about three months after the date of mutation. The statement of P.W.3, however, is quite important and this contradicts the statement of the other two witnesses; when he has deposed in examination-in-chief that the sale was disclosed to the respondents on 2-1/2/3 months. Now from the collecting reading of the statement of these witnesses, it is not established on the record, if the respondents learnt about the sale on 16-9-1991 and on that date made any Talb-e-Muwathibat.
Moreover, it is their case that Ahmed Din was also present, at the, relevant time, but Ahmed Din for no good reason, has been not examined.
4. On the basis of the aforesaid, I find that the learned Court of appeal has omitted to properly read the evidence, as regard to the exact date of learning of the sale and the making of the Talb- eMuwa.Thibat, because this is sine qua non for maintaining a right of pre-emption and also is relevant for the purpose of calculating the date for issuance of Talb-eIshhad. The argument of the learned counsel for the respondents, by relying upon 2003 CLC 263, 2003 M LD 14, 1999 SCM R 2338, 1999 SCM R 717, 2002 SCM R 219, 2003 CLC 379 and PLD 2001 SC 499, that the minor discrepancies and misstatement of the witnesses should not be taken into seriously to non-suit the preemptor on the issue of Talbs, suffice it to say that the aforementioned are not minor discrepancies, rather none of the witnesses has been able to give the exact date, time, day, and the month, which facts were the basis for the purpose of the proof of the first Talb, resultantly, I find that respondents have failed to prove the Talb-eMuwathibat, therefore, they were not entitled to the decree, which has been erroneously granted to them by the Court of appeal, without properly reading the evidence therefore, the impugned judgment and decree is set aside and by upholding that of the learned trial Court, the suit of the respondents stands dismissed.