' Vide a registered sale-deed dated 7-3-1994 the respondent purchased the suit-land mentioned in the plaint, for a consideration of Rs,60,000. On 7-4-1994 the petitioner filed a suit for possession by pre-emption. According to him the land had in fact been sold for Rs,50,000. He claimed to be a co-sharer. Performance of Talb was pleaded. The respondent in his written statement while asserting that he had paid Rs,60,000 for land, had spent Rs,12,000 as registration charges and further Rs,15,000 on the improvement of the land, denied the said allegations in the plaint. Inter alia, the following Issue No,1 was framed:-
(1) Whether plaintiff fulfilled requirement of Talbs? OPP ' Evidence of the parties was recorded. Learned trial Court found that the petitioner being a co- sharer has a superior right of pre-emption; that a sum of Rs,60,000 was actually paid as price of the land and that the Talbs had not been performed. The other issues were not pressed by the respondent. The suit was accordingly dismissed vide judgment and decree dated 17-2-1997. A first appeal filed by the petitioner wherein only the said finding on Issue No, 1 was questioned was dismissed by the learned District Judge, on 28-7-1997.
2. Mr. S.M. Ayub Bokhari, learned counsel for the petitioner contends that the evidence on record has been misread, rather learned Courts below failed to read the evidence while recording their findings on said Issue No, I . Learned counsel for respondent, on the other hand, supports the impugned judgment and decrees.
3. I have gone through the copies of the records with the assistance of the learned counsel for the parties. It will be noted that before me as well it is said finding above that has been agitated. Now in para.2 of the plaint the petitioner stated that he came to know about the sale on 26-3-1994 through his brother Ibrar Ahmad in presence of Ahmad Afzal and Sh. Aziz-ur-Rehman and the petitioner made Talb. Thereafter he issued a notice of Talb-i-Ishhad. Now both the learned Courts below have stated that since Ibrar has not been produced, Talb-i-Muwathibat does not stand proved. The reason for disbelieving making of Talb-i-Ishhad is that name of Ahmad Afzal witness is not present in notice Exh.D. I.
4. To my mind, learned Courts below have completely failed to read pleadings as well as the evidence. Now as stated by me above, it was pleaded that Ibrar informed the petitioner in presence of Ahmad Afzal and Aziz-ur-Rehman when he made Talb-i-Muwathibat. Now Aziz-ur- Rehman appeared as P.W.1 and Ahmad Afzal appeared as P.W.2. Both of them stated that in their presence Ibrar informed the petitioner and he made Talb-i-Muwathibat. This is also the statement of the petitioner as P.W.3. To my mind, the said evidence fully corroborates the said contents of the plaint. In the circumstances when it was pleaded and proved that information was received in 'presence of the said P.Ws.1 and 2 and in whose presence the Talb-i-Muwathibat was made, non- production of Ibrar informer would not at all be fatal. As to the said reasoning in the matter of Talb- i-Ishhad. The learned Courts below opted to remain in oblivion of the fact that the notice Exh.D.1 was not only received by the respondent but was also replied to by him. Now there is no allegation in the said reply that notice is not attested by Aziz-ur-Rehman or Ahmad Afzal whose names are mentioned in the body of notice itself. Now Aziz-ur-Rehman appeared as P.W.1 and stated that notice which was at the relevant time mark "A" bears his signatures as mark A/1. It was not suggested to him that he had not signed the notice. Similarly Ahmad Afzal appeared as P.W.2 and had stated that he had signed the notice as mark A/2. He was confronted and he admitted that although his name was not there under his signatures but signatures are very much there. The statement was not challenged further. Assuming the said witness had not signed the notice at all, rule laid down by the Honourable Supreme Court of Pakistan in the case of Abdul Malik v.
Muhammad Latif 1999 SCM R 717 shall apply as the name of the witnesses stands mentioned in the body of the notice itself.
5. Having read the said evidence, I do find that the learned Courts below have failed to read the same and have Consequently acted with material irregularity in exercise of their respective jurisdiction while holding Issue No,1 against the petitioner. Consequently I reverse the said findings and hold the issue in favour of the petitioner.
6. Now it has been held and not questioned that Rs,60,000 was actually paid as price of the land. I further find that Issue No,9 was framed regarding incidental expenses but it has been noted by the learned Courts below that this issue was not pressed. However, upon examination of the copy of the registered sale-deed, I find that it bears the stamp duty of Rs,5,100. It is but evident that registration fee has also been paid. I, therefore, hold under Issue No,9 that the respondent is entitled to payment of Rs,6,000 as incidental expenses.
7. For all that has been discussed above, civil revision is allowed. The judgments and decrees of both the learned Courts below are set aside and suit of the plaintiff/petitioner is decreed in his favour and against defendant/respondent, for possession of the suit-land by pre-emption, subject to deposit of Rs,66,000 in the trial Court on or before 31-10-2003. In case the plaintiff/petitioner fails to make the said deposit on or before the said date, after adjustment of amount, if any, already deposited, his suit shall stand dismissed with costs throughout. At the moment the parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.