P L D 2008 Lahore 7 (PLP)

SYED ZAHID HUSSAIN, J.

Muhammad Azam respondent had instituted suit to pre-empt the suit land 23-Kanals 5 Marlas purchased by Faiz Muhammad petitioner/defendant vide Mutation No.876 dated 28-5-1997. The suit was contested and was eventually dismissed by the trial Court vide judgment dated 8-3-2000. On appeal the learned Additional District Judge, Mianwali modified the judgment of the trial court accepting the appeal and decreeing his suit to the extent of half share of the disputed land. This judgment of the appellate court dated 12-9-2001 has been assailed through this petition by Faiz Muhammad vendee and by Muhammad Azam pre-emptor through Civil Revision No.2205 of 2001. Since both the petitions arise out of the same judgment of the appellate Court, these have been heard together due to the commonality of the controversy involved.

2. The learned counsel for the parties have been heard and record perused.

3. There is a common ground that crucial issue between the parties is about performance of Talbs by the plaintiff/pre-emptor in accordance with law and that the fate of these petitions is dependent upon the findings on that issue i.e. Issue No.6. The trial court had dealt with Issue No.6 (Talbs) and 7 (superior right) together and decided the same against the plaintiff/pre-emptor. On appeal, kowever, the learned appellate court held that the plaintiff/pre-emptor had proved the performance of Talbs. It needs no emphasis that for succeeding and grant of decree in a pre-emption suit the performance of Talbs as prescribed by S.13 of the Punjab Pre-emption Act, 1991 is a mandatory requirement and if the same are not performed in accordance with law, even the superior right claimed by the plaintiff/pre-emptor stand extinguished. That is why the Superior Court have insisted for strict compliance of these requirements. For this purpose the averments made in the plaint are of primary significance. In the instant suit paragraph 3 of the plaint reads as under:

It is evident from the perusal of the above that it is silent about the timing and the place (Majlis) where the plaintiff/pre-emptor acquired knowledge of the sale and his immediately declaration of intention. There has been some obscurity in the past about the legal position as to the extent of the duty of pre-emptor qua performance of Talbs. However, the same stand cleared and settled by a larger bench of the Hon'ble Supreme Court of Pakistan in Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC

302. By reiterating the view taken in Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977, it was held that "a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit." Similar view is found in 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. Clearly, therefore, the plaintiff/pre-emptor in this case had failed to fulfil the requisite conditionalities of making Talb-i-Muwathibat whose mere assertion as to performance of Talbs and making of some improvements in evidence was not enough. Due to non-performance of Talbs, the superior right to preempt the suit land, if any, stood extinguished in terms of S.13 of the Punjab Pre-emption Act, 1991. As noted above, in the instant case the plaintiff/pre-emptor had failed to lay proper foundation in the pleadings about the performance of Talbs. His alleged superior right of pre-emption stood extinguished due to non-performance of Talbs in accordance with law. The judgment of the appellate court thus, is not consistent with law. It is unsustainable and is set aside. As a result. Civil Revision No.2272 of 2001 is accepted whereas Civil Revision No.2205 of 2001 is dismissed. No order as to costs. M.H.F-33/L Revision allowed