2006 PLP 1981 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed the judgments/orders dated 21-6-2003 and 24-4-2004 passed by the learned Civil Judge and the learned Additional District Judge, Hafizabad, whereby suit of the petitioners for possession through pre-emption and their appeal were dismissed, respectively.

2. Succinctly, relevant facts are that the petitioners filed a suit for possession through pre-emption against the sale of suit-land in favour of the respondent, effected through registered Sale-deed No.607 dated 18-11-1998, claiming their superior pre-emptive right being "Shafi Sharik", "Shafi Khalit" and" "Shafi Jar" qua the respondent who was pleaded to have kept the sale in graded secret. Petitioners further averred that they gained knowledge of sale in question on 3-3-1999 at about 12-00 noon through Muhammad Akhtar Javed in presence of Allah Ditta son of Muhammad Ameer and they instantly performed "Talb?i-Muwathibat" in the same Majlis and thereafter on 4-3-1999 performed "Talb-i-Ishhad" through notice remitted under registered cover and then by filing the suit, fulfilled the requirement of "Talb-i-Khashumat".

3. Respondent being defendant in the suit contested the same by filing his written statement wherein he raised certain preliminary objections regarding estoppel, locus standi, improvement of suit property and maintainability of suit etc. 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 and decree dated 21-6-2003.

4. Petitioners aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful, as the same also failed on 24-4-2004. Petitioners, thereafter, filed instant revision petition and the respondent in response to notice by this Court, has appeared and was represented through his counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners had pleaded in their plaint that they gained knowledge of the sale on 3-3-1999 at 12-00 noon through Muhammad Akhtar Javed when they while sitting in the same "Majlis" expressed their intention of pre-empting the suit-land and thus, claimed to have performed "Talb-i-Muwathibat", with all promptitude. The petitioners in order to prove their case, produced seven witnesses besides documentary evidence. Muhammad Ghafar (P.W. 1) Postman/Record-keeper was produced to prove postal receipt Exh.P.1, showing dispatch of registered envelope but he was not the maker of the receipt and in absence of original record of the Post Office concerned, his deposition was of no help to the case of the petitioners especially when he admitted that the relevant record has already been destroyed. Nazar Abbas Sargana, Advocate, P.W.2 was produced to prove notice of "Talb-i-Ishhad". According to this witness, he dictated notice of "Talb-i-Ishhad", which was singed by the petitioners and the witnesses. This witness further deposed that he got the notice dispatched through his Clerk who was not examined.

6. The original notice of "Talb-i-Ishhad" alleged to have been served on the respondent was neither required to be produced through process of the Court nor the same was available for its confrontation to the scribe (P.W.2) or its witnesses. In absence of original notice of "Talb-i-Ishhad", the same could not be said to have B been proved by producing copy thereof and that too; without seeking permission of the trial Court to lead secondary evidence.

7. P.W.3, Akhtar Javed is the informer who allegedly conveyed the information of sale to the petitioners whose statement regarding time, date and place of performance of "Talb-i-Muwathibat" by the petitioners on 3-3-1999 coincided with the deposition of P.W.4 and P.W.6 but the entire case built by the petitioners was pulled to the ground, even by ignoring the material contradiction/discrepancy in the statements of P.Ws. Nos.4 and 6 already pointed out in the impugned judgment when the Jamabandi produced by the petitioners as Exh.P.7 was looked at Exh.P.7 was undeniably issued by the Revenue patwari on 23-2-1999 i.e. after the sale dated 18-11-1998, which was subjected to the suit. This copy of the Jamabandi was issued in the name of Allah Ditta son of Muhammad Ameer who is real paternal uncle of the petitioners and was one of the pre-emptors in the other suit and was allegedly present on 3-3-1999 at the time of performance "Talb-i-Muwathibat". This jamabandy was produced in both the suits, one by the petitioners and the other by Allah Ditta and the others and left no room to conclude that the petitioners were not aware of sale in question, at least on 23-2-1999 when this copy of the Revenue Record was got issued. Respondent while cross-examining the one of the petitioners Sana Ullah who had appeared as P.W.7, specifically enquired about issuance of copies of the Revenue Record but he did not explain as to why the same was got issued through Allah Ditta on 23-2-1999. Similarly, it could not be denied that one Nusrat Ijaz, a co-sharer/relation of the petitioners filed a suit for permanent injunction on 4-7-1999 specifically detailing the sale-deed dated 18-11-1998 in para.No.2 of his plaint whereto the petitioners were arrayed as parties as defendants Nos.8 and

9. P.W.3 admitted in his cross-examination that Nusrat Ijaz who had filed a suit for permanent injunction, is his real brother which means that statement of P.W.3 regarding gaining of knowledge of sale on 3-3-1999 was not correct. Both the documents Exhs.P.7 and D.3 proved beyond any shadow of doubt that the petitioners had gained knowledge of sale at least on 23-2-1999 but they did not perform "Talb-i-Muwathibat" at that time. Performance of the alleged "Talb-i-Ishhad" if calculated from the date of issuance of Exh.P.7, the same is also beyond the time prescribed by section 13 of the Punjab Pre-emption Act, 1913. Scan of evidence and judgments of the two Courts below revealed that lis was correctly concluded by them, as the petitioners could not prove performance of Talbs according to Law and their pre-emptive right, if any, stood extinguished by operation of law.

8. For the reasons noted above, none of the Courts below committed any illegality/irregularity in absence of which no interference in revisional jurisdiction is permissible under law and instant revision being merit less is dismissed with no order as to costs. S.A.K./M-264/L????????????????????????????????????????????????????????????????????????????????? Revision dismissed.