2004 PLP 591 (MLD)

Malik M. Jehanzeb Tamman for Petitioners Malik M. Kabir for Respondents. Date of hearing: 27th October, 2003. Malik Aujagar Khan, the deceased petitioner No.1 on the one hand, and respondents Nos.2 to 7 on the other filed rival suits for possession of land purchased by respondent No. 1, through pre-emption. After a triparte contest both the suits were decreed. It was further held that both the pre-emptors have an equal right. The learned trial Court passed decrees distributing the land equally amongst Aujagar Khan and the said six rival pre-emptors. This was done vide judgment and decree dated 7-5-1994. Feeling aggrieved the respondents Nos.2 to 7 filed a first appeal which was heard by a learned Additional District Judge at Talagang, who allowed the appeal inasmuch as he proceeded to distribute the land on per. capital basis. Thus the respondents Nos. 2 to 7 were given 6/7 shares and Aujagar Khan 1/7 shares on payment of proportionate price. This was done vide judgment and dated 10-3-1998.

2. Learned counsel for the petitioners when confronted with section 9 of the Punjab Pre-emption Act, 1991, which fully supports the impugned judgment of the learned Additional District Judge, the learned counsel for the petitioners does not question the finding. He, however, goes on to contend that since the said respondents failed to prove a Talb i-Muwatibat, they are not entitled to any decree at all as because of their failure to make Talb, the only successful pre-emptor in the field would be Auiagar Khan. The precise contention is that since all the respondents Nos.2 to 7 have not put in appearance in the witness-box, there is no proof that they made the Talb. He relies on the case of Mst. Salma Bibi v. Manzoor Hussain and others (1996 SCMR 1067). Learned counsel for the respondents Nos.2 to 7, on the other hand, contends that the Talbs have been properly proved.

3. Now according to para. 2 of the plaint, the respondents Nos.2 to 7 came to know about the sale on 8-7-1992 and made a Talb-i- Muwathibat and thereafter confirmed the Talb-i-Muwathibat by means of a notice attested by the persons mentioned in the plaint sent under registered cover on 18-7-1992. Azhar Abbas one of the respondents, Nos.2 to 7 appeared as D.W.I. He stated that the other co-pre-emptors are his brother and sister and that he is an attorney. He produced the power of attorney Exh.D.1. Then he stated that on 8-7-1992 they were having their dinner when they acquired knowledge of the sale and all of them stated that they will file a suit. Thereafter notice was issued to Hassan Akhtar vendee under registered cover A.D. which notice was signed by all the brothers and sisters and attested by the two witnesses. These were sent to Hassan Akhtar and his father.

4. Now to my mind the factum of Talbs stands duly proved in the said statement which is supported by the statements of the D.Ws.2 and 3.

5. Now in the said judgment, their Lordship took notice of the fact that the person who appeared in the witness-box was not an attorney of the other plaintiffs/pre-emptors and as such it was held that it cannot be said that he made the Talbs on behalf of his co-pre-emptors or that his statement can be read to the benefit of the other co-pre-emeptors. In the present case, all the pre-emptors have performed the two Talbs. and this fact has been confirmed by one of the respondents who is also attorney of the other pre-emptors and is further supported by the evidence on record. Now I may further state here that the first appeal was filed by the present respondents Nos.2 to

7. The petitioners never questioned the findings recorded by the learned trial Court in the matter of performance of Talbs. Be that as it may, having examined the records, no case of exercise of revisional jurisdiction stands made out. The civil revision is dismissed leaving the parties to bear their own costs. S.A.K./A-10/L Revision dismissed.