2017 PLP 143 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this single judgment I intend to decide the above captioned Civil Revision as well as Civil Revision No.114-D of 2002, as both the civil revisions have been filed against the judgment and decree dated 02.11.2001 passed by the learned Additional District Judge, Jampur, whereby the appeal filed by vendee has been accepted and of rival pre-emptor Muhammad Iqbal (petitioner of Civil Revision No.114-D of 2002) has been dismissed. Whereas through Civil Revision No.114-D of 2002 the judgment and decree dated 01.02.2001 passed by the learned Civil Judge, Jampur have also been challenged, whereby the suit for pre-emption filed by the petitioner through consolidated judgment was dismissed.

2. The brief facts of the case are that the plaintiff-petitioner on 28.03.1990 filed a suit to pre-empt the sale of land through mutation No.71 attested on 25.01.1990 in favour of Muhammad Hussain vendee-defendant. Whereas the rival plaintiff i.e. Malik Muhammad Iqbal, the petitioner in Civil Revision No.114-D of 2002 filed the suit for pre-emption on 24.05.1990. Vide consolidated judgment and decrees dated 01.02.2001 the suit titled "Malik Muhaminad Riaz v. Muhammad Hussain and others" was decreed, whereas the suit titled "Malik Muhammad Iqbal v. Muhammad Hussain etc." was dismissed. The vendee-defendant as well as Malik Muhammad Iqbal filed their separate appeals. Vide consolidated judgment and decrees dated 02.11.2001 the appeal filed by the vendee-defendant was accepted, whereas the appeal filed by Malik Muhammad Iqbal, rival pre-emptor, was dismissed. Hence, these two civil revisions.

3. The suit of petitioner of Civil Revision No.68-D of 2002 is governed by section 35 of the Punjab Pre-emption Act, 1991, which is reproduced for ready reference as under:-- "

35. Saving.

(1) Notwithstand-ing anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive), in which the right of pre-emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act, shall subject to subsection (2), be decided afresh according to the provisions thereof. (2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in sub-section (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor established that he had made 'Talb-i-Ishhad' in the presence of two truthful witnesses." The petitioner was required to establish that he had made Talb-i-Ishhad in presence of two truthful witnesses. In this context reliance can be placed upon the judgment reported as "2007 MLD 820 (Mst. Tasneem Bibi and another v. Muhammad Ali and 8 others)". Needles to state that the case pleaded by a party can be proved and if pleadings are missing about the oral event, the party cannot be permitted to produce the evidence when specifically the said event has not been pleaded. I have gone through the judgment passed by the learned first appellate court. The present petitioner has been non-suited on the ground that he failed to plead and prove Talb-i-Ishhad as required by law. This suit relates to interregnum period. Therefore, no case for interference on behalf of the petitioner has been made out.

4. So far as Civil Revision No.114-D of 2002 is concerned, as the instant suit was filed after 28.03.1990, therefore, the plaintiff/pre-emptor of this suit. was required to plead and prove the Talbs in accordance with law i.e. the Punjab Pre-emption Ordinance, 1990 applicable on that date. Neither the date, time and place of knowledge of impugned sale have been mentioned in the pleadings nor the Talbs have been proved in accordance with law. There are concurrent findings of fact recorded by two courts below against the petitioner/plaintiff.

5. For what has been discussed above, both the civil revisions having no merits stand dismissed. ZC/M-50/L Revision dismissed.