2013 PLP 2702 (YLR)

AMIN-UD-DIN KHAN, J.

Through this civil revision, petitioners-defendants have impugned the judgment and decree dated 26-4-2006 passed by learned Addl: District Judge, Sialkot, whereby the appeal filed by them was dismissed, and the judgment and decree dated 7-10-2005 passed by learned Civil Judge, Sialkot, whereby the suit of respondent-plaintiff was decreed.

2. The facts, in brief, of this case are that the petitioners purchased suit-land through Mutation No.254 attested on 15-12-1999. The respondent-plaintiff pre-empted the sale through the, suit for pre-emption filed on 24-3-2000. The written statement was filed by the defendants and suit was contested. Learned trial Court on 6-6-2001 framed issues and additional issues Nos.6-A and 6-B were also framed on 28-9-2005. The parties were invited to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the close of trial, vide judgment and decree dated 7-10-2005 suit was decreed by learned trial Court. The defendants filed an appeal before learned first appellate court. The plaintiff also filed cross-objections. Vide judgment and decree dated 26-4-2006 the appeal was dismissed and cross objections were partially accepted. Hence, this civil revision by the petitioners-defendants.

3. Learned counsel for the petitioners argues that the respondent-plaintiff failed to plead and prove the performance of Talbs in accordance with law; that the plaintiff failed to plead the `Majlis' in which he has announced his intention to pre-empt the sale; that there are five vendees, whereas P.W.1 (Postman) has referred four registered letters; that when there is report upon Exh.P-2 that the addressee has gone abroad and lives in Saudi Arabia, therefore no notice has been proved to have been sent to Saudi Arabia, though the plaintiff has stated in his statement that he sent notice to the said defendant in Saudi Arabia. Learned counsel further states that time, date and place of knowledge of sale were not proved by the plaintiff-respondent with regard to Talb-e-Muwathibat; that the scribe of notice has also not been produced to prove the sending of notices in the envelope sent through registered A.D in the name of vendees.

4. On the other hand, learned counsel for the respondent-plaintiff argues that there are receipts of five notices sent to the vendees i.e. Exh.P-16 to Exh.P-20, which are sufficient to prove that notices were sent to each of the vendees and that the intention of legislature is just to send a notice and not to prove the receipt thereof. While relying upon "2009 SCMR 642 (Muhammad Yousaf Baig v. Rehmat Ali)" learned counsel states that the minor discrepancies can be ignored. Further while relying upon "2009 SCMR 240 (Muhammad Tariq and 4 others v. Asif Javed and another)" argues that the minor clerical omissions in the statements of witnesses are ignorable.

5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

6. The findings on issue No.3 recorded by both the courts below have only been agitated before this court at the time of advancing arguments by learned counsel for the parties. So far as the concurrent findings recorded by two courts below are concerned. In the light of celebrated judgment of august Supreme Court reported as "2010 SCMR 1630 (Sultan Muhammad and another v. Muhammad Qasim and others)" this Court can see that how the concurrent findings have been recorded by the courts below. I am clear in my mind with regard to Talb-e-Muwathibat as declared by the Apex Court of the country in "PLD 2007 Supreme Court 302 (Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others)" that for proving a jumping demand the plaintiff is required under the law to prove the exact date, time and place of gaining the knowledge of impugned sale. For proving this fact not only he is required to plead the same specifically in his pleadings but also to prove the same through confidence inspiring evidence. I have scanned the evidence of plaintiff. The statements of plaintiff as P.W.2 and the alleged informer P.W.3 are on the file with regard to the knowledge of impugned sale as well as making the jumping demand. The time and place of knowledge of impugned sale is missing in the statement of plaintiff as well as his witness. No other witness has been produced with regard to jumping demand. It will not be out of place to mention here that the pleadings are never part of evidence. Though the time, date and place of knowledge have been pleaded in the plaint but the time and place have not been proved through the evidence, therefore by no stretch of imagination it can be presumed that the case pleaded by the plaintiff with regard to Talb-e-Muwathibat has been proved. In the light of pronouncement of august Supreme Court "PLD 2007 Supreme Court 302" I am clear in my mind that both the courts below travelled beyond their jurisdiction, finding that the plaintiff has successfully proved Talb-e-Muwathibat in accordance with law. Furthermore, with regard to the 'Majlis' where Talb-e-Muwathibat allegedly was made, is contradictory one between the statement of plaintiff and his witness P.W.3 (Muhammad Tariq Lumberdar). According to the plaintiff he gained the knowledge in presence of his wife and children, whereas according to P.W.3, the plaintiff was sitting alone when he was informed about the impugned sale.

7. So far as, Talb-e-Ishhad is concerned. Not only sending of notice is the requirement of law but also the plaintiff is required under the law to prove the service of notice. In this context, light can be taken from the judgment reported as "2005 SCMR 1228 (Abdul Hakeem v. Mst. Jannat Bibi)". The evidence of plaintiff with regard to sending of notice is concerned. No doubt, plaintiff has produced five receipts for sending registered A.D. but the statement of P.W.1 (Postman) is relevant, who deposed that four registered letters were received by him for distribution. The plaintiff has also not produced the alleged scribe of notices in order to prove the sending of notices in the envelopes, as the plaintiff and his witness stated that the Clerk of counsel scribed the notices, sent the same to the defendants. The plaintiff in his statement stated that the defendants were out of country and after the report of Postman the notices were sent to the said defendants at their residence of Saudi Arabia but there is no record except this oral statement of plaintiff, which has been denied by the petitioners-defendants. In this view of the matter, the performance of Talb-e-Ishhad has not been proved through the standard evidence required under the law to be produced by the plaintiff in a pre-emption suit. The findings recorded by both the courts below on issue No.3 are not only contrary to law but also against the settled principles of law annunciated by the august Supreme Court, therefore the same are not sustainable and as such reversed.

8. In the light of what has been discussed above, this civil revision is accepted and the impugned judgments and decrees dated 26-4-2006 and 7-10-2005 passed by two courts below are set aside. The result would be the suit filed by the respondent-plaintiff shall stand dismissed with no order as to costs. JJK/M-62/L Revision accepted.