2006 PLP 136 (YLR)

MUHAMMAD MUJEEBULLAH SIDIDQUI, J.

This revision application is directed against the judgment dated 1-8-1989 and decree dated 5-8-1989 in Civil Appeal No.49 of 1989 passed by the learned District Judge, Nawabshah. The relevant facts are that the applicants filed suit for pre-emption against the respondent which was decreed by the learned trial Court. The respondents preferred appeal before the learned District Judge who set aside the judgment of the trial Court and allowed the appeal. In this revision application the sole objection is that the learned District Judge has not properly appreciated the rule relating to the Talb-i-Ishhad. A perusal of the impugned judgment shows that the learned District Judge after reproducing the deposition of P.W., Muhammad Ishaq Attorney of the applicants held that Talb-i-Ishhad was not made and in any case no reference was made to Talb-i-Mowasibat at the time of alleged Talb-i-Ishhad and consequently the mandatory requirements of making reference to Talb-i-Mowasibat at the time of Talb-i-Ishhad was not fulfilled and consequently the suit for pre-emption was liable to be dismissed. Mr. Hakim Ali Siddiqui, learned counsel for the applicants has submitted that both the demands can be made at the same time. However, he is not able to show any law that one demand only can be treated as Talb-i-Mowasibat as well as Talb-i-Ishhad. The reason is very simple that it is a condition precedent for a Talb-i-Mowasibat which is called jumping demand to be made immediately on receiving the information of transaction. It has been held in some cases that if a person receives a letter containing information about the sale and he does not make Talb-i-Mowasibat before reading the entire letter, the delay is fatal as he is required to make Talb-i-Mowasibat as soon as he reaches to the stage where information about sale transaction is contained. Thus if a person after receiving information tries to draw attention of the witnesses and ask them to be the witnesses of the demand and thereafter makes the demand it will not be Talb-i-Mowasibat as required under the law, because it would not be the jumping demand. No doubt the two demands can be made on the same occasion with a gap of few moments, but the two demands should be there and at the time of making Talb-i-Ishhad, even if it is after few moments of the first demand, the pre-emptor is required to make reference to the Talb-i-Mowasibat (first demand). In this case the deposition of the Attorney is very clear that no reference was made to the Talb-i-Mowasibat. The exact words of the attorney of the applicants are as follows; "On hearing this news from defendant I immediately asserted B my right of pre-emption being co-sharer and asked the defendant to take his money and convey the land to the plaintiffs. The defendant replied that he would think over the position and ultimately he refused to resell the land to the plaintiffs. I asked my witnesses that I will file suit for pre-emption if the defendant does not resell the land to the plaintiffs. I then went to the Advocate and filed the present suit." In view of the above testimony of the Attorney of the applicants the learned District Judge was justified in observing that either Talb-i-Ishhad was not made at all or if the subsequent assertion, that he will file the suit is treated as Talb-i-Ishhad, it is not in accordance with law as no reference was made to Talb-i-Mowasibat. In the above circumstances, I am of the considered opinion that the finding of the learned District Judge is in accordance with law and does not suffer from any infirmity or illegality. The revision application is without substance which stands dismissed accordingly. M.H./M-296/K??????????????????????????????????????????????????????????????????????????????????? Revision dismissed.