2005 PLP 226 (MLD)

(4) Whether the plaintiff is estopped by his own words and conduct to file the present suit? OPD (5) Whether defendants are entitled to recover incidental charges in case of decree in favour of the plaintiff, if so, to what extent? OPD (6) Whether defendants are entitled to recover Rs.5,000 as improvements from the plaintiff in case of decree in his favour? OPD (7) Whether the suit of the plaintiff is Binamidar, If so, what is its effect? OP parties. (8) Whether the plaintiff fulfilled the requirements of Talbs, if so, its effect? OPD (9) Whether the sale price of the suit‑land was fixed as Rs.1,25,000 in good faith at the time of sale? OPD (10) If the above issue is not proved, then what was the market value of the suit‑land at the time of sale? OPD (11) Relief

2. After recording appreciating the evidence of the parties pro and contra, the learned trial Court vide judgment and decree dated 21‑6‑2000 dismissed the suit with the observations that the plaintiff has not proved the talbs in accordance with law of pre‑emption. Feeling aggrieved the petitioner preferred an appeal which came up for hearing before the learned Additional District Judge, Nankana Sahib who vide judgment and decree, dated 21‑7‑2003 dismissing the appeal upheld the judgment and decree passed by the trial Court.

3. Learned counsel for the petitioner has challenged the findings of both the Courts below on Issue No.8 which is a under:‑‑ "Whether the plaintiff fulfilled the requirements of Talbs, If so, its effect? OPD" To establish his case the plaintiff produced four P.Ws., namely, Muhammad Awais, Girdawar, P.W.1, Muhammad Ali Khan, P.W.2, Anwar Khan P: W .3 and Ismail son of Walay Khan P. W .4. In written statement plaintiff in his plaint in paragraph 3 of his plaint the plaintiff/petitioner has mentioned that the sale in dispute came into his knowledge on 5‑10‑1994 when he was sitting in his house and P.Ws. Muhammad Ismail and Anwar Khan informed him about the sale in dispute.

4. The plaintiff/petitioner did not appear in the Court to establish his case and instead his son, the attorney appeared as P.W.2. The plaintiff himself did not appear and has failed to prove the performance of requirements of three Talbs provided in Punjab Pre‑emption Act. Muhammad Ali P. W .2 stated in his statement in the Court that he was sitting with his father in the house when Anwar came there and told that the vendor Dilbar Khan has sold the land to the defendants/respondents and thereafter they went to the house of Dilbar Khan vendor and asked him to return the land to them and offered him to make payment of Rs.50,000, the real amount of the same.

5. It is settled proposition of law that the pre‑emptor, in order to succeed in a suit for pre‑emption must establish that he made the three demands, Talb‑e‑Muwathibat, Talb‑i‑Ishhad and Talb‑e‑Khusumat in accordance with law. The Talb‑e‑Muwathibat, the first demand is usually described as the jumping demand under section 13(1) of the Act which A applies to the present case defines Talb‑e‑Muwathibat as immediate demand by a pre‑emptor in the sitting or meeting (Majlis) in. which he has come to know of the sale, declaring his/her intention to exercise the right of pre‑emption. The first demand is followed by Talb‑e‑Ishhad, the second demand by the pre ‑ emptor which requires sending of a registered A.D. notice in writing attested by two truthful witnesses by the pre‑emptors to the vendee or vendees as soon as possible after his first demand but not later than two weeks form the date the pre‑emptor became aware of the sale confirming his/her intention to exercise the right of pre‑emption. The Hon'ble Supreme Court has discussed this principle in case of "Mst. Shamim Akhtar v. Kh. Maqsood Ahmed and 3 others" (1998 SCMR 2227) on the basis of Said Kamal's case (PLD 1986 SC 360), the Shariat Appellate Bench had laid down the manner of exercise of Talb‑e‑Muwathibat as follows:‑‑ It is also settled proposition of law that if any of the three demands is missing the plaintiff/pre‑emptor is, not entitled for the pre‑emption decree. There is no material on the record to establish that for the first meeting the pre‑emptor declared his intention to pre‑empt the suit land. The son of the plaintiff categorically stated that they went B to the house of the vendor Dilbar Khan but did not utter a single word that his father has immediately declared his intention to pre empt the suit‑land.

6. In a pre‑emption suit the plaintiff should himself appear to substantiate his case for performance of all the three requirements of pre emption and his non‑appearance would tantamount non‑proving of the requirements of Talbs. The contents of the plaint must be proved by his own statement in the Court. In this case the attorney of the plaintiff appeared while the plaintiff was alive neither there was any excuse or disability there is nothing on record to prove his disability for his appearance in the Court.

7. There is concurrent findings of' fact by Courts below against the petitioner and both are of the opinion that plaintiff has failed to establish the Talb‑e‑Muwathibat, the immediate demand in the first meeting when he received the information of sale in dispute.

8. Learned counsel for the petitioner has not been able to point out any gross illegality or jurisdictional defect in the impugned judgment and decree of the lower Courts calling for interference by the High Court.

9. For the foregoing reasons this revision petition being devoid of force is dismissed in limine. M.I./M‑770/L Petition dismissed.