2007 PLP 2586 (YLR)

MUHAMMAD SAIR ALI, J.

Raja Shakeel Mehdi i.e. the predecessor-in- interest of the present appellants filed a suit against the respondent for possession through pre-emption seeking to pre-empt the sale of the suit-land by Raja Khushhal Mehdi to the respondent as per Mutation No.181, dated 8-1-1991. Superior right was claimed by the predecessor-in-interest of the appellants/plaintiff as the co-sharer in the same Khewat and so was due performance of Talbs. On contesting written statement, seven issues were framed by the learned trial Judge. Evidence was recorded. The learned trial Judge through judgment and decree dated 11-7-1996 dismissed the suit mainly on the ground that the performance of Talbs was not proved. Appeal of the appellants thereagainst was also dismissed by the learned Additional District Judge; Sargodha, through judgment and decree dated 12-7-2004. Hence the present second appeal.

2. The learned counsel for the parties stated that the only issue remained relevant at the stage of the present second appeal was as to "whether the plaintiff made Talbs in accordance with the law" or not. They also stated that the learned subordinate Courts non-suited the appellants on the basis of their failure to plead the date, the time, and the place of the knowledge of the sale-transaction and the corresponding exercise of Talb-e-Muwathibat. And that as such the litigated question before this Court was that on the admitted failure of the appellants to specifically plead and state in para.3 of their plaint, the date, the time and the place of acquisition of knowledge of the sale transaction and performance of Talb-e-Muwathibat, could they be allowed to prove the same in evidence in order to maintain their suit.

3. The learned counsel for the appellants admitted that the plaintiff pre-emptor (the predecessor-in-interest of the appellants) had neither pleaded nor specified the date, the time and the place of meeting in which the plaintiff acquired the knowledge of the sale transaction and purportedly exercised .right of Talb-e-Muwathibat. But contended that in the evidence the said essential ingredient of exercise of Talb-e-Muwathibat was proved by the plaintiff pre-emptor and the learned subordinate Courts therefore, legally erred in pronouncing the impugned .judgments and decrees. The learned counsel for the respondent contrarily supported the impugned judgments and decrees of the learned subordinate Courts.

4. Heard. Record examined.

5. In para. 3 of the plaint, the plaintiff pre-emptor only pleaded that the moment he came to know of the sale transaction, he promptly stated in the same meeting that he had a superior right and would therefore, .exercise the superior right of pre-emption to pre-empt the sale transaction. He admittedly did not plead the date, the time or the place of purported meeting in which he acquired the knowledge of the sale transaction and purportedly declared his intention to pre-empt the same examination of para 3 of the plaint also shows that the plaintiff pre-emptor also failed to specify the names of the informers) of or the witnesses to the information of the sale transaction and performance of Talb-e-Muwathibat by him. -The claim and the pleadings of the plaintiff pre-emptor are blank, vague and unsubstantiated. They lack in setting up the basic and fundamental facts to establish and prove the timely performance of Talbs as required under section 13 of the Punjab Pre-emption Act, 1991. It is well settled that the facts which a plaintiff fails to plead in the plaint cannot be allowed to be proved in evidence. The un-pleaded facts cannot become the basis of the judgments even if the evidence has been led-upon them by a plaintiff. Such evidence has to be excluded from consideration.

6. The controversy, if any, on the above referred litigated question and the issue has been finally settled by the Hon'ble Supreme Court of Pakistan in the case of "Fazal Din through L.Rs. v. Muhammad Anayat through L.Rs. (2007 SCMR 1) wherein on the basis of "Haji Muhammad Saleem v. Khuda Bukhsh" (PLD 2003 SC 315) and "Fazal Subhan v. Sahib Jamala" (PLD 2005 SC 977) and "Akber Ali Khan v. Mukamil Shah and others" (2005 SCMR 431) and in distinction to the cases of "Haji Noor Muhammad v. Abdul Ghani and 2 others" (2000 SCMR 329) and "Hayat Muhammad and others v. Mazhar Hussain" (2006 SCMR 1410) it was held that the date or the place of making Talb-e-Muwathibat was to be specifically mentioned in the plaint and thus proved through evidence.

7. In view of the above position of the law, it is held that the learned subordinate Courts validly dismissed the suit of the appellants for possession through pre-emption. The impugned judgments and decrees are therefore, upheld. This appeal is dismissed with no order as to the costs. S.A.K./5-66/L Appeal dismissed.