2003 PLP 870 (MLD)

(3) Muhammad Shabir Ahmad Khan v. Government of Punjab (PLD 1994 SC 1).

5. In rebuttal, the learned counsel for vendee-respondent referred to section 13 of the N.-W.F.P. Pre-emption Act, 1987 and maintained that non-compliance of Talbs in the same order and form as provided under section 13 ibid, the right of pre-emption shall be extinguished. He further submitted that the case-law cited by counsel for petitioners has got no bearing on the facts of the instant litigation.

6. The petitioners in para. 2 of their plaint have stated as follows:--

7. The aforesaid assertion is evident to show that the plaintiffs were conscious of the procedure for making Talb-e-Muwathibat and also Talb-e-Ishhad. They have not mentioned the name of informer from whom they came to know of the sale transaction. The names in whose presence or the persons who were present in the Majlis where Talb-e- Muwathibat Was made were also not mentioned. The date, time and place were also not mentioned. As regards Talb-e-Ishhad, though it is stated that a notice to express their intention to file a suit for pre-emption was allegedly sent to the vendee, but is not stated that Talb-e-Ishhad was made in presence of two truthful witnesses which is a legal requirement. The notice appended with the plaint is dated 20-3-1988 and is sent by counsel for one of the petitioners, namely, Nasir Khan. The notice i nowhere discloses that Nasir Khan has already made Talb-e -Muwathibat. Neither the name of informer nor the date, time and place of the Majlis where information was, received by Nasir Khan and he made Talb-e-Muwathibat is also not mentioned. There is no mention of petitioners Nos.2 to 4 as pre-emptors of the said notice.

8. The case-law cited at the bar as 1991 SCMR 717, the names of witnesses were mentioned in the notice and it was observed that Talb-e -Ishhad being procedural in no way could be considered as mandatory for non-suiting the pre-emptor and that the fact showing substantial compliance of section 13 of the Punjab Pre-emption Act, 1991 would be enough to sustain a suit for pre-emption. The facts of the cited judgment are materially different than the facts of the instant litigation. Suffice it to say that in the cited judgment, there were mentioned the names of witnesses in whose presence the required Talbs were made, but in the present case it is lacking.

9. In the judgment reported as 2002 SCMR 219, the facts of the case were that the pre-emptor personally approached the vendee which was followed by a Jirga expressing the intention of pre-emption as notice of Talb-e-Ishhad. In the given facts and circumstances of the case, the Supreme Court refused to interfere in the concurrent judgments of the Courts below whereby pre-emption suit was decreed. In the present case, the petitioners have nowhere alleged in the averments of plaint that either the petitioners themselves approached the vendee to express their intention to pre-empt the suit-land as Talb-e-Ishhad or have sent the notice of Talb-e-Ishhad through post in terms of section 13(3) of the N.-W.F.P. Pre-emption Act, 1987. Pertinent to mention here that the proviso to subsection (3) aforesaid is not attracted in the present case. Thus the cited case-law is also distinguishable on facts. PLD 1994 SC 1 is also distinguishable, as in the cited judgment, it was the vires of certain provisions of .the Punjab Pre-emption Act, 1991 were challenged.

10. After making the law of pre-emption in accordance with the Injunctions of Islam, the Provincial Assembly enacted N.-W.F.P. Pre emption Act, 1987 notified through Gazette dated 28-4-1987, section 13 whereof reads as follows:-- "

13. Demand of pre-emption: (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely: (a) Talb-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-i-Khusumuat. (2) When the fact of sale comes within the knowledge of a pre emptor through any source, he shall make Talb-e-Muwathibat. (3) (subject to his ability to do so) where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon as thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge whichever may be earlier, make Talb-e-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee confirming his intention to exercise the right of pre-emption: Provided that in areas where due 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."

11. The procedure provided for Talb-e-Muwathibat and Talb-e -Ishhad were not complied in terms of the aforesaid quoted provisions of law and the case-law cited by the counsel for petitioners at the bar is distinguishable as noted above.

12. In view of the foregoing discussion, I found this revision petition against the concurrent findings of two Courts below without any substance which is hereby dismissed with no order as to costs. H.B.T./743/P Revision petition dismissed.