2020 PLP 117 (YLRN)

ALI BAIG, J.

This civil 1st appeal is directed against the impugned judgment/decree dated 10-8-2018 passed by the learned Civil Judge 1st Class Shounter Astore in Civil Suit No. 03 of 2015, whereby the learned trial court has dismissed the suit of the plaintiff/ appellant.

2. Precisely facts leading to the filing of the instant civil 1st appeal are that the present appellant/plaintiff instituted a suit for possession of suit land measuring 12 maralas situated at Gorikote Astore fully described in the head note of plaint through pre-emption against the respondents/defendants in the trial court claiming that the appellant/plaintiff and respondent/defendant No. 3 are cousins inter se and respondents/defendants Nos. 1 to 2 are outsiders/strangers who have purchased the suit land from the respondent/defendant No.

3. The present appellant/plaintiff being co-sharer has preferential rights over the respondents/ defendants Nos.1 to 2 to purchase the suit land and the respondents/defendants Nos.1 and 2 being strangers have illegally purchased the suit land from the respondent No.3, hence the appellant/ plaintiff is entitled to purchase the aforesaid suit land, through pre-emption.

3. The present respondents being defendants in the suit contested the suit by way of filing their joint written statement in the learned trial Court wherein they have raised certain legal objections and have also repudiated the averments made in the plaint.

4. Out of divergent pleading of the parties the learned trial Court framed the following 10 issues:--

5. After framing of issues the parties led their evidence in support of their respective claims. On conclusion of trial the learned trial court vide the impugned judgment/decree dated 10.8.2018, has dismissed the suit of the plaintiff/appellant.

6. It is pertinent to mention here that prior to that the appellant had filed civil 1st appeal in the court of the learned District Judge Astore, which was returned to the appellant/plaintiff by the learned District Judge Astore due to want of pecuniary jurisdiction vide order dated 28-9-2018, hence this appeal.

7. The learned counsel appearing on behalf of the appellant/plaintiff contended that the impugned judgment/decree passed by the learned trial court is contrary to law and facts on the record of case as such the impugned judgment/decree passed by the learned trial court is not maintainable and liable to be set-aside. The learned counsel for the appellant/ plaintiff further argued that the learned trial court has failed to apply it's judicious mind while passing the impugned judgment and has arrived at wrong conclusion. The learned counsel for the appellant further argued that the impugned judgment/decree passed by the learned trial court is result of misreading and non reading of evidence adduced by the parties, hence the impugned judgment/decree passed by the learned trial court is not sustainable in the eye of law and liable to be set-aside.

8. Conversely, the learned counsel for the respondents / defendants controverted the arguments advanced by the learned counsel for the appellant and defended the impugned judgment/decree dated 10-08-2018 passed by the learned trial court by contending that the learned trial court has passed well reasoned judgment/decree by proper evaluating the evidence of the parties adduced in the learned trial court. The learned counsel for the respondents further argued that the present - appellant/plaintiff has failed to make demands of pre-emption i.e. Talb-e-muwathibat, and Talb-e-ishhad and Talb-e-Khusumat as required under Section 12 of the Gilgit Baltistan Pre-emption Act, 2010, in the plaint, thus the suit of the appellant was not maintainable and the learned trial court has rightly dismissed the suit of appellant/plaintiff.

9. We have heard and considered the arguments advanced by the learned counsel for the parties and have gone through the record with their able assistance.

10. It is admitted position that under the provisions of Gilgit-Baltistan pre-emption Act 2010, for exercise of the right of pre-emption, the performance of Talb-e-muwathibat and Talb-e-ishhad in terms of Section 12 of Gilgit Baltistan Pre-emption Act 2010 are mandatory. Talb-e-muwathibat is the first demand through which a pre-emption on coming to know about the sale immediately declare his intention to exercise right of pre-emption and Talb-e-ishhad is second demand which is made in the manner as provides in Section 12(3) of the aforesaid Act not later than two weeks from the date of knowledge and making of Talb-e-muwathibat. The requirement of Talb-e-lshad is made by sending the notice in writing attested by two truthful witnesses under registered cover to the vendee in compliance of this condition in accordance with the provisions of Section 12(3) of said Act.

11. For ease and convenience we would like to reproduce Section 12 of Gilgit-Baltistan Pre-emption Act 2010 as under:- Section

12. Demand of pre-emption:- (1) the right of pre-emptor of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:- (a) 'Talb-e-muwathibat'; (b) 'Talb-e-ishhad'; and (c) 'Talb-e-khusumat'. Explanation: 1. 'Talb-e-muwathibat' means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption.

2. Note: Any words indicative of intention to exercise, the right of pre-emption are sufficient. II. 'Talb-e-ishhad' means demand by establishing evidence. Talb-e-Khusumat, means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make talb-e-muwathibat. (3) Where a pre-emptor has made Talb-e-muwathibat under sub-section (2) he shall as soon thereafter as possible but not later than two weeks the date of knowledge make talb-e-ishhad by sending notice in writing attested by two truthful witness, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-e-ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of talb-e-muwathibat under subsection (2) and talb-e-ishhad under subsection (3), he shall make talb-e-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.

12. The plain reading of above reproduced provisions of Gilgit-Baltistan pre-emption Act 2010 performance of aforesaid two talbs/demands i.e. Talb-e-muwathibat and Talb-e-lshad before institution of pre-emption suit are essential and in case of non performance of aforesaid two demands/essential conditions, the right of pre-emption is extinguished. Date, time and place of information about to and performance of Talb-e-muwathibat is necessary to be mentioned in the plaint for possession of suit land through pre-emption. In the instant case the petitioner has failed to mention date, time and place of information about the sale in the plaint, hence the plaintiff/appellant has not properly perform Talb-e-muwathibat. The plaintiff/ appellant has also failed to send a notice in writing attested by two truthful witnesses under registered cover acknowledgment due to the respondents/ defendants as evident from the contents of plaint. Thus the mandatory demands/ Talb-e-muwathibat and Talb-ishhad were not properly mentioned in the plaint as have been declared by superior courts.

13. The learned counsel for the appellant not been able to satisfy this court regarding performance of above said two mandatory demands/Talbs. In this connection reference is made to the reported judgments of superior courts reported in 2007 SCMR 1105, 2010 CLC page 588, 2011 CLC 241, 2005 CLC 1133 and 2006 SCMR 4, Moreover, D.W. 2 namely Four Khan son of Delawar has deposed/stated in his statement recoded before trial court that no land of the plaintiff is situated adjacent to the suit land.

14. In view of above discussion we would hold that the plaintiff/pre-empter has failed to mention and prove Talb-e-muwathibat and Talb-e-lshhad. In these circumstances we have come to conclusion that the learned trial court has rightly dismissed the suit of the appellant/plaintiff. We found no merits in this appeal and the same is accordingly dismissed. Consequently the impugned judgment/decree passed by the learned trial court is upheld. Parties are left to bear their own costs. File. ZC/104/GB Appeal dismissed.