2006 PLP 2685 (YLR)

JAWWAD S. KHAWAJA, J.

The petitioner-defendant impugns the appellate judgment and decree, dated 17-1-2006 whereby the decree of the learned Trial Court, dated 12-2-2002 was reversed and, as a consequence, a suit filed by the respondents-plaintiffs seeking possession of the suit property through pre-emption, was decreed.

2. Issue No.3 relating to Talbs is dispositive of this petition. It was framed in the following terms:-- "Whether the plaintiffs have fulfilled the requisite Talbs according to the law of pre-emption? OPP"

3. The respondent-plaintiffs are two brothers, namely, Muhammad Tufail and Muhammad Igbal who jointly filed a suit to pre-empt the sale in question. Only one of them, namely, Muhammad Tufail appeared in the witness box to testify on oath and to face cross-examination. It is true that he testified that both brothers were present in the assembly where they received information of the sale and both of them made Talb-e-Muwathibat there and then. However, this alone does not absolve Muhammad Iqbal from appearing in Court to state facts for the purpose of proving that he made Talb-e-Muwathibat in the same assembly. Here I may add that the petitioner-defendant was entitled to cross-examine Muhammad Igbal under oath and to elicit facts including possible admissions or contradictions between the testimonies of the two brothers in order to impeach their veracity had they both appeared.

4. Learned counsel for the respondents argued that there was no legal requirement that all pre-emptors must appear to prove Talb-e-Muwathibat. I can accept that if there are valid reasons to explain why a pre-emptor has not appeared as a witness, the testimony of the other pre-emptor read with witnesses of the Talb-e-Muwathibat, may be sufficient for proving that the said Talb was properly made. However, in the present case, there is no explanation on the record as to why Muhammad Iqbal did not take the witness stand. In these circumstances and for reasons discussed above, I find that the testimony of Muhammad Tufail was not sufficient and did not absolve the other brother Muhammad Iqbal from appearing in Court and deposing that he had made Talb- e-Muwathibat.

5. Learned counsel for the petitioner also placed a great deal of stress on the fact that the respondents had got knowledge of the impugned sale on 12-6-1999 when they obtained a copy of the Ford from the Halqa Patwari, and not on 1-7-1999 as alleged in the plaint. The learned appellate Court, however, has dealt with this question and has come to the conclusion that the respondents-plaintiffs received knowledge of the sale on 1-7-1999. The reasons given by the learned appellate. Court for this conclusion cannot be interfered with in the exercise of revisional jurisdiction simply because a different conclusion, based on the available evidence, was possible. The outcome of the foregoing discussion, however, is that the impugned B appellate decree is not maintainable. It is, therefore, set aside and, as a result, the decree of the learned trial Court, dated 12-2-2002 stands restored. F.B./N-60/L Petition allowed.