2013 PLP 1035 (YLR)

AMIN-UD-DIN KHAN, J.

Through this civil revision the plaintiff/petitioner has challenged the judgment and decree dated 17-5-2002 passed by the Additional District Judge, Bahawalpur whereby appeal filed by the defendants/respondents was accepted and judgment and decree dated 30-10-1999 passed by the Civil Judge, Bahawalpur decreeing the suit of the plaintiff/petitioner was set aside. Consequently the suit of the plaintiff/petitioner was dismissed.

2. Brief facts of the case are that the petitioner filed a suit to pre-empt the sale of land mentioned in the head-note of the plaint, which was transferred vide Mutation No.65 dated 5-3-1994. The defendants filed written statement and contested the suit. Out of the divergent pleadings of the parties, the learned trial Court framed various issues and invited the parties to produce their respective evidence. Both the parties produced their respective evidence and the learned trial Court vide judgment and decree dated 30-10-1999 decreed the suit in favour of the plaintiff/petitioner. An appeal was filed by the defendants/ respondents and the same was allowed by the learned Additional District Judge vide judgment and decree dated 17-5-2002 and set aside the judgment and decree of the learned trial Court, hence this civil revision.

3. Learned counsel for the petitioner contends that the plaintiff/petitioner fully proved the Talbs in accordance with law and further that when trial Court has accepted the performance of Talbs in accordance with law, then first appellate court has wrongly disagreed with the findings of fact recorded by the trial Court.

4. On the other hand, learned counsel for the respondents/defendants has fully supported the judgment and decree passed by the first appellate court and he stated that the findings recorded by the first appellate court are absolutely in accordance with law on the point of Talbs enunciated by, the Apex Court of the country.

5. I have heard the arguments advanced by the learned counsel for the parties and have examined the material available on record.

6. I have noticed that there is no mention of place of knowledge of impugned sale in the plaint and further specific time has also not been mentioned in the plaint. Further when plaintiff appeared as his own witness as P.W.1 on 11-2-1999, he has stated that he came to know about the impugned sale about four years ago. He has not mentioned the exact date of knowledge, time of knowledge and place of knowledge. Further as the first appellate court has observed that in the cross-examination he has admitted that he went to Patwari 15/20 days before sending of notice and after getting copies he handed over the same to his lawyer. Further P.W.2 Rahim Bux who is also an informer, his statement was recorded on 21-4-1999. He stated that he informed the plaintiff about five years ago with regard to the impugned sale. In his statement also date, place and time of making of Talb-e-Muwathibat are missing. Statement of Allah Bachaya P.W.3 was recorded on 9-6-1999. He also stated that 5 years and two months ago in his presence Rahim Bux informed the plaintiff about the impugned sale. Even in his statement time, date and place of knowledge as well as Talb-e-Muwathibat are missing. Further learned first appellate court has observed that the plaintiff has not produced any witness from the post office to prove the sending of notice to vendees/defendants. I have further noticed that notice Exh.P-1 and the receipts of post office have been produced as Exh. P-2, Exh. P-3 and Exh.P-4. The vendees are three in number. By perusal of this notice, it is not proved that this notice has been sent to which of the vendees and the learned appellate court has observed that on the file there are two acknowledge cards. The address of sender on these cards is written as Ch. Muhammad Siddique, Advocate, whereas alleged notice Exh.P-1 was sent by Muhammad Ramzan directly. I have noticed that in notice Exh.P-1 even time, date and place of knowledge of making Talb-e-Muwathibat are missing.

7. For filing a suit for pre-emption under the law, there are certain conditions which are to be fulfilled before filing of the suit. The first is Talb-e-Muwathibat, that has been described as jumping demand under section 13 of the Punjab Pre-emption Act, 1991. For jumping demand it is the primary duty of the plaintiff to prove the place of sitting, where he came to know about the sale. The specific time of gaining knowledge, the date and the participants of that Majlis must have been mentioned. In case in hand as I have observed, the specific time and place of knowledge have not been mentioned in the plaint as well as in the alleged notice of Talb-e-Ishhad. Further plaintiff when appeared as his own witness, he has not stated in his statement the specific date of knowledge, time and place of knowledge and when all these pre-requisites for proving the jumping demand are missing, the jumping demand cannot be proved. The plaintiff and witnesses when have not stated the specific date in the statements for gaining the knowledge of the impugned sale and further the delivery of notice with acknowledgement due to each of the vendees has not been proved and further the acknowledgement was not produced in the evidence. In this view of the matter, learned counsel for the petitioner/plaintiff has failed to show any defect in the judgment recorded by the learned first appellate court and also failed to make out a case for interference by this court while exercising jurisdiction under section 115, C.P.C. In the light of what has been discussed above, this civil revision having no merit is dismissed with costs throughout. KMZ/M-161/L Petition dismissed.