2013 PLP 866 (SCMR)

MIAN SAQIB NISAR, J.

Respondent preferred a suit for pre-emption against the petitioner pre-empting the sale of the suit land, measuring 5 marlas, and in the plaint specifically mentioned the time, date and venue where Talb-i-Muwathibat was made and also the issuance of the sending of notice of Talb-i -Ishhad. Petitioner-defendant denied both the Talbs in the written statement and accordingly an issue was framed; parties were put to trial and the learned Civil Judge seized of the matter while giving finding on issue of Talbs against the respondent and in favour of the petitioner was pleased to dismiss the suit, holding that there are certain discrepancies in the statements of the witnesses produced by the respondent and that the notice of Talb-i-Ishhad had not been established. Aggrieved of the above, respondent preferred an appeal and succeeded and the learned Appellate Court while reversing the findings of the trial court on the said issue decreed the suit. This judgment and decree of the Appellate Court has been affirmed by the Revisional Court.

2. We have heard learned counsel for the parties and find vital discrepancy in the statements of P.W.1, P.W.2 and P.W.3 particularly, P.W.1 and P.W.2. P.W.2 stated that the disclosure of the sale of suit land was made to them while the plaintiff was sitting inside the shop of Aziz, whereas the informer who is the son of the pre-emptor, P.W.3 Muhammad Rafique, has contradicted the above and in unequivocal, clear and unambiguous terms stated that they were sitting outside the shop. This was a material discrepancy but the learned Appellate Court had failed to notice the same and it has also been overlooked by the learned Revisional Court. As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two courts below.

3. In the light of the above, this petition is converted into an appeal and allowed, the judgments and decrees passed against the petitioner cannot sustain, which are hereby set aside and by upholding the judgment and decree of the trial Court, the suit of the respondent stands dismissed. No orders as to costs. MWA/A-11/SC Appeal allowed.