MUHAMMAD SABA vs AKBAR ALI

' MUHAMMAD SAIR ALI, J.--- Thus judgment shall deal with and decide Civil Revision No,265/2000 and Civil Revision No,274/2000 involving the identical question of law and fact and for being between the same parties.

2. The short controversy involved herein is as to whether the petitioner plaintiff i.e, the pre-emptor exercised Talab-e-Muwathibat in accordance with section 13 of the Punjab Pre-emption Act, 1991 promptly on acquisition of knowledge of the sale transaction or not.

3. This litigated question arose in the perspective that the learned trial Judge decreed the suit for possession through preemption in favour of the petitioner through judgment and decree dated 4- 6-1998 while on the respondent's appeal, the learned first appellate Court reversed the trial Court's judgment and decree. It was held in the appellate Court's judgment and decree dated 29-11-1999 that the learned trial Judge erred at law by not deciding the controversy as to the exercise of Talab-eMuwathibat in accordance with pleadings and evidence of the petitioner pre-emptor and thus while setting aside the judgment and decree of the trial Court, the learned Additional District Judge Kharian proceeded to dismiss the suit of the petitioner through acceptance of appeal.

Hence the present civil revision.

4. The learned counsel for the parties stated that the only question requiring consideration by this Court is as to whether Talab-e-Muwathibat was duly exercised by the petitioner pre-emptor or not.

And that all other questions have been finally settled and decided and do not form subject matter of the controversy before this Court.

5. The learned counsel for the petitioner in his concise submissions admitted that the petitioner while deposing as P.W.3 admitted that he arrived in the village from Meerpur Azad Kashmir on 20- 4-1995 when he acquired knowledge of the sale transaction dated 20-4-1995. And that on acquisition of such knowledge he immediately exercised right of Talab-eMuhathibat by declaring his intention to pre-empt the sale transaction and on the same day i.e, 20-4-1995 notice of Talab- eIshhad was served. The learned counsel for the petitioner admitted that in his pleadings contained in Para 3 of the plaint, the petitioner pleaded to have acquired knowledge of the sale transaction on 19-4-1995 and exercise of Talab-eMuwathibat on the same day i.e,19-4-1995. When asked to explain the contradiction, only stated that he did not see any serious contradiction in one day's delay.

6. I am afraid the law does not reinforce and, support the case of the petitioner and his learned counsel. Talab-eMuhathibat has been defined to be a A declaration of intention to pre-empt a sale transaction, immediately in the `Majlis' and at the place where a pre-emptor petitioner acquires knowledge of the disputed sale. Further that it is also well settled that what is not pleaded cannot be proved. Also that a B plaintiff (pre-emptor) cannot be allowed to depart from his pleadings.

7. In the present case, the petitioner as pre-emptor specifically and concisely pleaded that he acquired knowledge of the sale transaction on 19-4-1995 and exercised his right of Talab-e- Muwathibat on the same day. In his deposition as P.W.3, the petitioner admitted to have arrived in the village on 20-4-1995. His learned counsel unreservedly stated that it was on arrival on 20-4- 1995 that the petitioner acquired knowledge of the sale transaction and exercised Talab-e- Muwathibat. The departure from the pleadings is glaring and does not admit of the dichotomy that the learned counsel for the petitioner seeks to defend before this Court. The petitioner plaintiff set- up a case in the plaint different from the case deposed in his deposition as P.W.3 and the facts admitted by his learned counsel.

8. In view thereof, this Court does not find any legal infirmity, excess of jurisdiction or departure from evidence by the learned first appellate Court. This civil revision is therefore dismissed.