2006 PLP 1541 (YLR)

SYED ZAHID HUSSAIN, J.

Judgment of the appellate Court, dated 21-12-1998 whereby the appeal filed by the respondents (vendees) was accepted and the suit for pre-emption instituted by the appellant/pre-emptor was dismissed, has been assailed through this second appeal.

2. The suit was instituted by the appellant on 20-7-1989 to exercise his right of pre-emption qua the suit-land which was purchased by the respondents vide sale deed, dated 26-4-1989. It was contested by filing written statement, pleading inter alia the non-performance of Talbs. Several issues were framed by the trial Court. Issue No.7 pertained to Talbs, which was as follows: "Whether the plaintiff has fulfilled the requirements of Talbs as provided under the Pre-emption Act, 1991? OPP" It is this issue, decision whereof is determinative of this appeal. The appellant/plaintiff had appeared as P.W.3 and produced Mushtaq Ahmed P.W.1 and Muhammad Siddique P.W.2 in support of the assertion as to performance of Talbs. The learned trial Court found the issue in favour of the appellant/plaintiff and decreed the suit whereas in appeal the appellate Court has reversed the finding of the trial Court on this issue and ordered the dismissal of the suit.

3. The learned counsel for the appellant contends that the appellant had fulfilled the requirements of Talbs by producing Mushtaq Ahmed P.W. and Muhammad Siddique P.W.2 and by appearing himself and that even if no particulars were mentioned in the plaint, the appellant could not be non-suited for that reason. Relies upon Altaf Hussain v. Abdul Hameed alias Abdul Majeed through legal heirs and another 2000 SCMR 314 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 to support his contention. He, thus, seeks reversal of findings recorded by the appellate Court. The learned counsel for the respondents/vendees, on the other hand, have drawn my attention to the contents of the plaint to contend that no basic particulars as to performance of Talbs had been mentioned in the plaint and that even Riasat Ali who is said to have informed the plaintiff about the factum of sale was not produced. It is, thus, contended that the view taken by the appellate Court in regard to Issue No.7 is fully justified and legal Reliance is placed by them upon Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977, Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Haji Lal Shah and another v. Abdul Khaliq and another 2004 SCMR 409; Basit Sibtain through legal heirs v. Muhammad Sharif through legal heirs 2004 SCMR 578 and Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 to support the above contentions.

4. The respective contentions have been considered in the light of the pleadings of the parties and the evidence led by them.

5. The perusal of the plaint shows that it lacked essential facts and particulars as to performance of Talbs i.e. the name of informer, the place, Majlis, timing and the persons present. Even the depositions of the witnesses produced by the appellant/ plaintiff were not consistent with each other, rather were contradictory. The learned appellate Court has taken note of the material contradictions. So much so that Muhammad Siddique, one of the witnesses (P.W.2) stated that the appellant/plaintiff had acquired knowledge about the sale of the land from the vendees/defendants. One thing, which stands out conspicuously and cannot be ignored in this context, apart from other fatal aspects of the matter, is the non-production of Riasat who is said to have informed the appellant/plaintiff about the sale in favour of the respondents/vendees. As to why he was not produced as witness, has not been explained and remained a mystery. Non-production of Riasat gave rise to a very serious inference against the appellant/plaintiff. It all shows the hollowness of the plea of the plaintiff about the performance of Talbs. The appellant, thus, failed to perform Talbs in accordance with law and his right of pre-emption stood extinguished. As a result, the appeal is without merit, which is dismissed accordingly with no order as to costs. F.B./K-12/L Appeal dismissed.