' This judgment proposes to decide two Civil Revisions Nos. 1864 and 1865 of 2002 arising out of the same judgments and decrees dated 19-12-2000 and 21-5-2002 passed by the learned Civil Judge and the learned Additional District Judge Chunian, District Kasur, between the same parties, raising similar questions of law and facts.
2. Precisely, relevant facts are that the petitioners filed a suit for possession through pre-emption against the sale of land in favour of Muhammad Yousaf, respondent through a registered sale- deed dated 23-4-1991 for an amount of Rs:20,000 claiming superior pre-emptive right as "Shafi Sharik" and "Shafi Jar" with the averments that they gained knowledge of the sale a few days earlier to the filing of the suit when they expressed Talb-e-Muwathibat, and thereafter by sending of notice of Talb-e-Ishhad attested by the two truthful witnesses, they performed Talb-e-Ishhad.
Manzoor Ahmad, respondent No.2 purchased the disputed land from Muhammad Yousaf respondent No.1 through an oral mutation dated 6-6-1991 and was subsequently impleaded to the suit as defendant No.2.
3. The respondents being defendants in the suit filed their separate written statements. Respondent No.1 pleaded that he and the petitioners purchased 2 plots from the one vendor on one and the same day and both of them were inducted into possession of their respective plots simultaneously, thus, the petitioners were aware of the sale subject of suit from the very first day, where they constructed their house by expanding an amount of Rs:1,00,000 which they claimed as improvements of the property, besides an amount of Rs:3,000 as incidental charges of the sale- deed. The respondent No.1 also pleaded that the petitioners did not perform "talbs" in accordance with law and thus they extinguished their pre-emptive right, if any. Respondent No.2 in his written statement pleaded that he also has a preemptive right quo the petitioners and as such urged that their suit could not be decreed. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful, partly decreed the preemption suit of the petitioners to the extent of 1/2 share of the land in dispute whereas with regard to the rest it was dismissed vide his judgment and decree dated 19-12-2000.
4. Both the parties were aggrieved of the decision of the trial Court dated 19-12-2000, consequently they filed two independent appeals before the learned Additional District Judge, who vide his judgment and decree dated 21-5-2002 dismissed the appeal of the petitioners and at the same time, accepted the appeal of the respondents, set-aside the decree to the extent of 1/2 share in favour of the petitioners and dismissed their suit in entirety. Thereafter the petitioners filed instant two separate revision petitions one against the judgment and decree whereby their suit was dismissed and the other whereby the decree in their favour to the extent of 1/2 share of the land was set-aside. Both these revision petitions were admitted to regular hearing and after notice to the respondents have now been placed for final hearing. Respondent No.2 is represented through his counsel whereas, respondent No.1 is ex parte vide order dated 19-11-2002.
5. The learned counsel for the petitioners submits that though evidence on the file regarding "talbs" is not perfect yet it covers the requirements of section 13 of the Punjab Pre-Emption Act 1991, as it is proved that the petitioners did perform the required "talbs" at proper time. It has also been contended that there is divergent view of the superior Courts regarding performance of "talbs" and benefit of it should be given to the petitioners. According to him submission, the Appellate Court has misread evidence on the file while returning findings on issue No.7. He further elaborated his arguments by saying that there were two appeals before the Appellate Court but he decided only one without touching the other and in this situation he prayed that the case may be remanded for fresh decision, to the Appellate Court.
6. The learned counsel appearing on behalf of respondent No.2 strenuously opposed the arguments of the petitioners, supported the appellate judgment and urged that the petitioner could not prove performance of "talbs" at proper time, according to law, as they were aware of the sale in favour of respondent No.1 from very day because they also purchased a plot along with respondent No.1 and both the parties were put to possession simultaneously where they raised their houses. It was also submitted that story with regard to performance of "talbs" is mere concoction and is falsified by their own evidence. He further elaborated his arguments by saying that self-contradictory and self-opposed statements of P.Ws. Are not enough to discharge the onus of issue No.7. According to him non-performance of "talb" is apparent from the fact that no date, lime and place of performance of Talb-e-Muwathibat was mentioned in the plaint which date__ for calculating the limitation for performance of Talb-eIshhad, had to be mentioned. He also argued that on account of non-performance of "talbs" pre-emptive right, if any, vesting in the petitioners stood extinguished. He further urged that respondent No.2 is also a co-sharer and petitioners have no superior pre-emptive right qua him.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Prayer of the learned counsel for the petitioner for remand of case can only be considered if performance of talbs by them is proved on the file. The petitioners have not detailed in 'their plaint time, date or place of gaining of knowledge of sale which was necessary for calculation of time of Talb-e-Ishhad though judgments on the point of mentioning of time, date and place of performance of Talb-e-Muwathibat, in the plaint, are divergent yet the latest view of the Honourable Supreme Court is that these details have to be mentioned in the plaint as mandated in the case of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315. The petitioners mentioned in the plaint that they came to know of the sale, few days earlier to the institution of the suit which was filed on 11-6-1991 when they instantly exclaimed their intention of filing the pre-emption suit. Let us assume that requirement of mentioning of time, date and place in the plaint is not necessary, even in this situation they were to prove these things by evidence. The petitioners produced 3 witnesses in support of "talbs" including statement of one of the plaintiffs as P.W.1, who stated that they came to know of the sale after one month and 4 days.
According to his statement they gained knowledge after one month and 4 days of sale, date of which by calculations comes as 27-5-1991. In cross-examination he stated that Ashiq and Bashir Muhammad informed them about the sale about 8/9 days earlier to the filing of the suit. According to this version they gained knowledge on 2/3-6-1991. Though statement of P. W.1 is self contradictory with regard to date of "Talb-e-Muwathibat" yet it is not determinable if this talb was really made on 27-5-1991 or on 2/3-6-1991. Another aspect of the matter is that the preemptors are 4 in number and only one out of them, appeared in the witness-box, the other 3 pre-emptors have not come forward to state that they also performed "Talb-eMuwathibat" along with P.W.1.
8. The other two witnesses produced in support of performance of "talbs" (P.Ws. 2 and 3) have made factually incorrect statements because they deposed that information regarding sale in favour of the vendees was conveyed to them when they were sitting at a Tea Shop. As a matter of fact, the original sale was in favour of one vendee Muhammad Yousaf and respondent No.2 is a subsequent purchaser who was not vendee at the time, referred by these witnesses. There are also material contradictions in the statement of P.Ws duly noted by the Appellate Court, which need not be reproduced again, which go to negate their stance.
9. As regards performance of "Talbe-Ishhad", petitioners have not produced the original notice in evidence which being in, possession of the respondent No.1 should have been required by them to be produced through a notice under Order, 11 rule 16, C.P.C. And had the respondent No.1 refused to produce the original notice they should have applied to the trial Court for permission to lead secondary evidence. Witnesses of the notice were not shown the original notice and instead a photocopy of the notice was produced on the file though from the pos'session of the vendee but it did not fulfil the requirement of law. Postal receipts have been produced on the file but without their formal proof, no postman or other witnesses were produced to show that notice dispatched by the petitioners were really distributed to the respondent. It is clear that service of notice of "Talb- eIshhad" was not proved according to the guidelines set down by this Court in the cases of Mst.
Amir v. Soini 1997 MLD 2376; Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292; Fateh Muhammad and 2 others v. Gulsher 2000 CLC 409 and Ghulam Abbas -v. Manzoor Ahmed and another PLD 2004 Lahore 125.
10. Muhammad. Hussain while appearing as P.W. I admitted that Muhammad Yousaf, respondent No.1 constructed his house immediately after purchase of the plot. The petitioners also purchased a plot in the same vicinity from the same vendor and were admittedly put in possession, thereof and thus were aware of the construction raised by the vendee immediately after 23-4-1991 the date of sale, subject of suit other P.Ws. Have also admitted raising of construction by. Respondent No.1 immediately after the purchase of the plot by him. The story that the petitioners came to know of the sale after one month and four days, is not true in view of their own evidence.
11. For what has-been discussed above, I have no hesitation to hold that the Appellate Court has taken a correct and lawful view of the- evidence on the file which has not been shown to have misread or non-read. The Appellate Court did not commit any illegality or irregularity as envisaged by section 115 C.P.C., in absence of which no interference is permissible in revisional jurisdiction, under law. Both these revision petitions have no merits in those and consequently are dismissed, leaving the parties to bear their own costs.