2006 PLP 1632 (YLR)

JAWWAD S. KHAWAJA, J.

Taj Muhammad (petitioner/defendant) impugns the appellate judgment and decree dated 18-10-2000 whereby the decree of the learned trial Court dated 10-7-1995 was set aside and a suit filed by Shukar Din (respondent/plaintiff) seeking possession of the suit land through pre-emption, was decreed.

2. The facts of this case are simple. The land in dispute measures 9 Kanals 4 Marlas and is situated in Chak Gillan, Tehsil Daska. It was sold by the vendor to the petitioner/defendant on 28-12-1993. The respondent filed his suit on 25-4-1994. He asserted a superior right of pre-emption and also contended that the requirements of Talbs set out in section 13 of the Punjab Pre-emption Act, had been duly complied with. The suit was resisted by the petitioner who averred in his written statement that requirements of Talbs had not been fulfilled and also that the respondent/plaintiff did not have a superior right of pre-emption.

3. Based on the pleadings, as many as 8 issues were framed. However, before me both sides have confined their arguments to Issues Nos.1 and 2 relating superior right of pre-emption and Talbs. These issues were framed in the following terms :

(i) Whether the plaintiff has superior' right of pre-emption? OPP (ii) Whether the plaintiff performed all the formalities of Talbs? OPP

4. Both Courts below have concurrently held that the respondent/ plaintiff had a superior right of pre-emption because he was owner of contiguous land and his land shared common passage and watercourse with the land in dispute. Learned counsel for the petitioner/ defendant has adverted to the testimony of Allah Ditta (P.W.2) to show that the petitioner was irrigating his land through the same tube-well and watercourse from which the suit land was being irrigated. B This circumstance alone, however, does not rebut the evidence produced by the respondent/plaintiff who was able to show from the Revenue Record and ask exhibited on record that he was owner of land which was contiguous to the suit land. The petitioner was unable to establish contiguity. In the circumstances the concurrent findings of the Courts below holding that the respondent had a superior right of pre-emption, are not open to exception.

5. As to Talbs the two judgments of the Courts below are at variance. I have gone through the impugned appellate judgment wherein the learned Court has itself held that all the requirements relating to Talbs had not been fulfilled. However, it proceeded to hold that substantial compliance of section 13 of the Pre-emption Act had been made by the respondent/ plaintiff and, therefore, Issue No.2 in respect of Talbs was decided in favour of the respondent. I, however, note that one Akbar, who allegedly was a witness of the Talb-e-Ishhad and of Talb-e-Muwathibat was not examined by the respondent/ plaintiff. This is a material omission, particularly, in view of the fact that no explanation is forthcoming from the record c as to why Akbar was not produced. In view of the unjustified absence of Akbar, it is not possible to hold that he was a witness of the Talb-e-Isshad or, indeed, that he was a truthful witness as required by section 13 of the Pre-emption Act. Furthermore, Allah Ditta, who appeared as P.W.2, deposed that on the day immediately following the date on which he informed the respondent of the sale, they had gone to the lawyer for giving notice of Talb-e-Ishhad. This is contrary to the averments in the plaint read with notice of Talb-e-Ishhad itself. In the plaint and the oral evidence, 21-4-1993 has been given as the date on which information of the sale was allegedly given by P.W. to the respondent. The notice of Talb-e-Ishhad is dated 24-4-1993. These facts belie the testimony of P.W.1.

6. For the above reasons, I find that the learned Appellate Court has acted illegally and with material irregularity in the exercise of its jurisdiction. The appellate judgment dated 18-10-2000, as such, is not legally sustainable. It is set aside. As a result, the decree of the learned trial Court dated 10-7-1995 stands restored. H.B.T./T-6/L??????????????????????????????????????????????????????????????????????????????????????? Revision accepted.