' Through this R.S.A. Mst. Razia Bibi and two others want to get the judgment and decree dated 21-3- 1996, passed by learned Additional District Judge-II, Bahawalnagar, set aside, which had reversed the judgment and decree dated 28-5-1995 passed by learned Civil Judge 1st Class, Haroonabad. In short, the facts of the case are that Shah Din son of Ghulam Muhammad (not impleaded) sold out the lands measuring 41 Kanals situated in Chak No.437/6-R, Tehsil Haroonabad, District Bahawalnagar, for rupees two lacs to Mst. Razia Bibi, defendant No.1 through Mutation No.289 sanctioned on 28-3-1989. The vendee, Mst. Razia Bibi gifted out these lands to her sons namely, Mehmood Ahmed and Iftikhar Ahmed, defendants Nos.2 and 3 through a gift Mutation No.219 on 5- 6-1991. The sale transacted through Mutation No.289, dated 28-3-1989 was pre-empted by Iftikhar Ahmed and Liaqat Ali, plaintiffs Nos.1 and 2 respectively, in the Court of learned Civil Judge, Haroonabad, by filing a pre-emption suit on the basis of Shafi Shreek, Shafi Khaleet and Shafi Jar.
Written statement was filed by all the defendants jointly. As regards the superior right of pre- emptors, the defendants admitted them to co-sharers in the 'Khata' in para No.6 of their written statement. But asserted that the plaintiffs had got no Zarar and Zaroorat for the pre-empted lands.
It was alleged that this suit was filed only to enlarge their ownership of land. With regards to talbs, it was denied that these had been performed by the pre-emptors.
2. Learned trial Court framed issue on 6-1-1989, out of whichIssues Nos.2 and 5 have been challenged before this Court. The trial Court dismissed the suit on 28-5-1995 while deciding Issues Nos.2 and 5 against the plaintiffs. The appeal filed by the plaintiffs before the learned Additional District Judge, Bahawalnagar was accepted and the suit was decreed on 21-3-1996. Hence, this revision.
3. Learned counsel for the vendees/defendants/petitioners have argued that the plaintiffs had failed to adduce cogent evidence with regard to the performance of Talbs. According to the petitioners, the requirements of Talbs were not fulfilled by the plaintiffs in accordance with law of pre-emption. Per learned counsel for the petitioners, there was material discrepancies in the evidence produced by the plaintiffs with regards to Issue No.5 i.e. The superior rights of the plaintiffs. It was asserted that the documents produced by the plaintiffs had in fact disproved the alleged right of co-sharer in Khata No.9. With regards to the land included in Khata No.9 of Jamabandi for the year 1986-87 of Chak No.437/6R, Tehsil Haroonabad, Diastrict Bahawalnagar, the learned counsel also submitted with force that the doctrine of sinker was applicable to the facts of the case as all the plaintiffs had not appeared in the witness-box to support their case.
4. On the other hand, the learned counsel for the respondents/plaintiffs had argued that in Para No.6 of the written statement that defendants/vendees had admitted the superior rights of the plaintiffs. After admission, the vendee/defendant cannot resile from that admission. According to the learned counsel, this admission was sufficient to prove the superior right of pre-emption of the plaintiffs. So far the performance of Talbs, the learned counsel submitted that discrepancies in evidence were, not of such nature as to entail the dismissal of the pre-emption suit. It was further submitted that the High Court should not interfere into the findings of the facts recorded by the learned Appellate Court. So, he prayed for the upholding of the judgment of the learned Appellate Court.
5. I have considered the arguments of both the learned counsel appearing for the parties. Leaving aside all the points, urged by the learned counsel the material point which has compelled me to set aside the impugned judgment and decree of the learned Appellate Court is that both the plaintiffs/pre-emptors had failed to appear into the witness-box to protect their interests, which they had asserted in their plaint. No doubt Liaqat Ali; one of the plaintiffs had appeared in the suit as P.W.1, but nowhere he had stated that Iftikhar Ahmed, plaintiff No.1 had he superior right to get these lands in dispute, on the basis of his superior pre-emptive rights. He has not even deposed a single word with regard to the performance of Talbs by the aforesaid plaintiff. The statement, he gave in the Court, had watched his interest alone. So, there was not an iota of evidence from the other plaintiff, namely Iftikhar Ahmed with regard to his superior pre-emptive right or for the performance of Talbs, having been made by him as enjoined by law.
6. In these circumstances, when both the plaintiffs have prayed for the decree of possession on the basis of pre-emption jointly, the absence of evidence from one of the plaintiffs becomes fatal to the case of the plaintiffs. I have perused the plaint myself so as to find out as to whether there was any prayer from the plaintiff as regards to the decretal of the suit, in toto, in case of failure of one of the plaintiffs to prove his case. But having found nothing of this sort, the non-appearance of all the plaintiffs would be disastrous for the case, as the performance of Talbs from the other plaintiff would not be presumed to have been performed by that plaintiff, who had failed to appear into the witness-box. I would have given the concession if the plaintiff appearing into the witness-box had stated even a single word with regard to the superior right and performance of Talbs by the other plaintiff and to have such authority on his behalf to depose. In 1995 CLC page 1077 (Falak Sher Khan v. Mir Qalam Khan) the suit of the plaintiff was dismissed when one of the plaintiffs had not appeared into the witness-box to support his case. So fortified by this citation, I have no other alternative except to accept the R.S.A., which is accepted accordingly, and the impugned judgment and decree dated 21-3-1996 of the learned Appellate Court is set aside. The suit of the plaintiffs/pre-emptors/respondents is dismissed without any order as to costs.