2006 PLP 772 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed the judgments/decrees dated 22-7-2002 and 28-10-2004 passed by the learned Civil Judge and the learned Additional District Judge, Kharian District Gujrat, whereby petitioner's suit and his appeal were dismissed, respectively.

2. Succinctly, relevant facts are that the petitioner filed a suit for possession through pre-emption of land detailed in the plaint, sold vide Mutation No.6581, dated 5-3-1998. The petitioner pleaded that she had superior pre-emptive right qua the respondent, being co-sharer of the Khata in question "Shall Sharik" and on gaining knowledge of the sale had performed "Talb-i-Muwathibat" instantly. She further averred that she on 21-4-1998 sent a notice of "Talb-i-Ishhad" to the respondent and thus, fulfilled the requirement of "Talb-i-Ishhad" whereafter by filing suit she did "Talb-i-Khasmnat" as per section 13 of the Punjab Pre-emption Act, 1991.

3. Respondent being defendant in the suit contested the same by filing written statement, denying the averments in the plaint and refuting performance of Talbs by the petitioner. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, who was seized of the suit, after doing the needful dismissed the suit of the petitioner vide his judgment/decree, dated 22-7-2002.

4. The petitioner aggrieved of dismissal of her suit, filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed vide appellate judgment/decree, dated 28-10-2004. She, thereafter, filed instant revision petition and respondent in response to notice, by this Court, has appeared and was represented through her counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Submissions of the learned counsel for the petitioner that petitioner on gaining knowledge on 9-4-1996 instantly performed "Talb-i-Muwathibat" and then by sending notice of "Talb-i-Ishhad", attested by two truthful witnesses, discharged her obligations according to the law, have to impressed me to upset concurrent judgments of the Courts below, passed in the light of evidence on the file. Petitioner while appearing as P.W. herself contradicted her narrations in the plaint. She deposed that she came to know about the sale of suit-land at "Digar Waila", after one and half month of the sale but this time does not co-relate to the one mentioned in the plaint. Similarly, her mentioned date of notice of "Talb-i-Ishhad" in her cross-examination is different to the one mentioned in Exh.P.1. the petitioner in order to prove performance of Talb-e-Ishhad" produced two witnesses namely Muhammad Latif P.W.2 and Ahmad Khan P.W.3 but none of them was confronted with the original notice of "Talb-i-Ishhad" and instead photostat copy was tendered in evidence as Exh.P.1. Under law a private document had to be proved by producing its original and in view of provisions of Article 76 of Qanun-e-Shahadat Order, 1984 photostat copies were not admissible in evidence. According to the case of the petitioner herself the original notice was served on the respondent, thus, proper course for her was to require the respondent to produce the original notice by requiring him to produce the documents and had the respondent failed to do so, she should have moved to the trial Court for permission to lead secondary evidence in terms of Article 76 of the Order (ibid). This Court has consistently held that without bringing on record original documents and without seeking permission for secondary evidence, notice of "Talb-i-Ishhad", will not be considered to have been proved, in accordance with law. Reference in this behalf can be made to the judgments in cases of Mst. Amir v. Soini 1997 MLD 2376; Muhammad Rafique v. Ghulam Murtaza 1998 MLD 292; Fateh Muhammad and 2 others v. Gulsher 2000 CLC 409; Hadayat Ullah Jan and others v. Jan Alam and others 2003 MLD 625 and Ghulam Abbas v. Manzoor Ahmad and another PLD 2004 Lah.

125. Petitioner did not adopt a lawful method to prove the notice of "Talb-i-Ishhad" and felt satisfied by merely placing on record photostat copy from the pocket of P.W.2.

6. Stance of the petitioner that respondent did not object at the time of production of photostat copy of the notice as Exh.P.1, thus, it should be presumed that lawful notice was given to the respondent, has not impressed me for the reason that nobody knows that any notice was dispatched or received by the respondent or not, unless proved, as he had denied its receipt in the written statement as well as D.W.1. Under law, it was the duty of the petitioner/pre-emptor to prove performance of Talbs which in absence of proof, could not be presumed on account of non-raising of objection by the respondent to admissibility of Exh.P.1. It is amazing that D.W. 1 was not confronted even with the copy of the notice Exh.P.1 though he had denied that he received any notice through post. It also goes without saying that neither any postal receipt regarding dispatch of notice was tendered in evidence nor the postman who distributed the notice in question was examined, hence, in absence of any such evidence, it could hardly be held that the petitioner discharged her obligations according to the provisions of section 13 of the Punjab Pre-emption Act, 1991 and that she had not extinguished her pre-emptive right if any.

7. Besides the reasons noted above, scan of evidence on the file revealed that both the Courts below correctly concluded the lis in accordance with the record/law applicable and none of them committed any illegality/irregularity amenable to revisional jurisdiction of this Court, hence, this petition being devoid of any merit, is dismissed, with no order as to costs. F.M./R-5/L Petition dismissed.