2008 PLP 1 (MLD)

SYED ZAHID HUSSAIN, J.

Suit for possession through pre-emption qua the suit-land instituted by the petitioners was decreed by the trial Court on 17-3-1990. However, the said judgment was reversed by the appellate Court by means of its judgment, dated 5-7-2005. This is revision petition by the pre-emptor qua the same.

2. In order to consider as to how for the variant findings of the Courts below were consistent with the material on the record and law, the record of the trial Court had been sent for which has been received.

3. The case was listed for hearing yesterday. A request for adjournment was made on behalf of the learned counsel for the petitioners. The same was acceded to and it was adjourned for today. Adjournment is again, however, sought due to non-availability of the learned counsel. Since there is no cogent basis for adjournment, I have, therefore, perused the record of the trial Court with the assistance of the learned counsel for the respondent.

4. Issue No.1 as to performance of Talbs by the petitioners/pre emptors was decided by the trial Court against the petitioners/pre emptors whose finding was that "The plaintiffs have failed to adduce their solid and cogent evidence to substantiate the alleged Talbs, therefore, I have to hold that the plaintiffs have failed to prove the alleged Talbs, the integral part to claim the right of pre-emption according to, the essence of Islamic Law of pre-emption. Nevertheless, the requisite Talbs cannot-be pressed into service in refusing the grant of right of pre-emption to plaintiffs in respect of the suit-land on the basis of alleged superior qualifications of pre-emption vide the verdict of the august Supreme Court of Pakistan delivered in Civil Review No.80-R/1988 titled Ahmed v. Abdul Aziz." Thus, recording findings on issue No.2 that the petitioners/plaintiffs were co-sharers and had superior right of pre-emption, the suit was decreed. Such finding was, however, reversed by the learned District Judge, Faisalabad in appeal of the vendee/defendant who found that "The respondent/plaintiffs in para.2 of their plaint have alleged that as soon as they came to know about the sale, they raised first demand. The plaintiffs did not mention in plaint as to when they came to know about the sale." The learned counsel for the respondent relies upon Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) and Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1) to support the view taken by the appellate. Court. It is also pointed out that qua the findings of the trial Court on issue No.1 since no cross objections were filed by the petitioners, the finding on issue No.1 (non-performance of Talbs) being concurrent in the case which required no interference by this Court. Reference is made to Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53) and Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others (1996 SCMR 1862). It is evident from the perusal of plaint in particular paragraph 2 thereof that the same is silent about the date, time and place where they acquired knowledge of the sale transaction. The legal position is now clearly settled that performance of Talbs is sine qua non for a suit for pre-emption and grant of decree therein. Reference in this context may be made to Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302), Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315), Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977), Fazal Din through L.Rs. v. Muhammad Anayat through L.Rs. (2007 SCMR 1), Nawab Din through L.Rs. v. Faqir Sain (2007 SCMR 401), Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others (2007 SCMR 515), Mst. Lalan Bibi and others v. Muhammad Khan and others (2007 SCMR 1193) and Abdul Rehman v. Haji Ghazan Khan (2007 SCMR 1491). Since the petitioners/pre-emptors had failed to fulfil the preconditions for maintaining the suit for pre-emption, their suit was rightly dismissed by the appellate Court. I, therefore, find no justification to interfere in the matter. The petition is dismissed accordingly. S.A.K./A-207/L Revision dismisse