2015 PLP 1040 (YLR)

LAL JAN KHATTAK, J.

This civil revision is directed against the judgment and decree dated 17-1-2011 of the learned Additional District Judge-V, D.1.Khan whereby appeal of the petitioner against the judgment and decree dated 19-4-2010 of the learned Civil Judge-V, D.I.Khan was dismissed.

2. Brief facts of the case giving rise to the instant revision petition are that the petitioner filed a pre-emption suit against the predecessor of the present respondents, namely, Behram Khan and another Naimatullah Khan regarding the suit land embodied in the sale Mutation No. 424 attested on 9-2-2000. It is worth mentioning that Naimatullah-vendee after institution of the suit surrendered his purchased share of 13 kanals and 7 marlas to the petitioner vide order sheet No. 48 dated 26-4-2006 of the learned trial court while predecessor of the present respondents namely Behram Khan contested the suit. The learned trial court after recording pro and contra evidence vide its judgment an decree dated 19-4-2010 dismissed the suit. Thy dismissal of suit was confirmed by the appellate court vide its judgment and decree dated 17-1-2011, hence this revision petition.

3. Learned counsel for the petitioner in support of the petition contended that due to his age factor the petitioner did not give the exact date of his Talb-e-Muwathibat but in a very natural way he has performed his Talb-e-Muwathibat by giving the correct time when he received information about the sale transaction. He submitted that the period given by petitioner in his examination-in-chief very much tallies with the date given by him in his plaint. The learned counsel further submitted that as the statement of the petitioner was recorded after considerable delay of about nine years, therefore, minor contradictions immaterial in nature regarding the facts of the case are ignorable but both the courts below have failed to look into this aspect of the case. He lastly submitted that the over all aspect of the case shows that the petitioner has proved his case for the enforcement of his right of pre-emption but the two courts below have illegally non-suited him for no convincing and appealable reasons.

4. I have heard learned counsel for the petitioner and perused the record of the case.

5. Perusal of the case record shows that the petitioner has not given exact date and place as to when and where he performed his Talb-e-Muwathibat. It is the requirement of law that in order to succeed in a suit of pre-emption the pre-emptor must state in his plaint and depose in court statement about the date and place where he performed his Talb-e-Muwathibat. In case of failure of the Talb-e-Muwathibat in the above manner right of pre-emption of a pre-emptor will be extinguished. Since the petitioner has failed to give date and place of his Talb-e-Muwathibat, therefore, he was rightly held not entitled to the pre-emption decree as prayed for by him. Though the petitioner has mentioned in his court statement when he appeared as P.W.4 that about 9 years, 2 months and 28 days ago, Ahmad Nawaz informed him about the sale but this utterance of period cannot be taken and considered as an exact date of his knowledge about the sale transaction. Moreover, no place has been given by the pre-emptor where he received the information and then performed his Talb-e-Muwathibat.

6. Apart from the above the petitioner has also not given the date of issuing notice of Talb-e-Ishhad to the respondents in his plaint which disclosure of date in the plaint is necessary. Reliance is placed on the case-law reported in 2009 SCMR 673 which is as under:-- "It is now by now the settled law that it would be mandatory for a plaintiff in a suit for pre-emption to incorporate in the plaint the date, time and place of performance of Talb-e-Muwathibat and date of issuance of notice of Talb-e-Ishhad in terms of section 13 of the Act, otherwise plaintiff's suit deserved to be dismissed".

7. For the above discussion and reasons I do not see any illegality in the impugned judgments and decrees of the two courts below which are based on correct appreciation of the case evidence. Therefore, the instant civil revision petition being bereft of any merit is hereby dismissed with no order as to cost. AG/606/P Petition dismissed.