2007 PLP 1704 (YLR)

SAYED ZAHID HUSSAIN, J.-On 29-7-1993 Dost Muhammad, predecessor-in-interest of the petitioners, purchased the suit-land qua which the suit to pre-empt the said transaction was filed by the respondent on 17-10-1993. The same was contested. The respective pleadings of the parties gave rise to number of issues. One of the issues i.e. Issue No.7 was "Whether plaintiff complied with requirements of Talb-i-Muwathibat and Talb-i-Ishhad? OPP". Since the plaintiff failed to prove the performance of Talbs, his suit was dismissed on 29-11-2000. On appeal by the respondent, the said judgment was reversed by the learned Additional District Judge, Sheikhupura on 25-10-2001 by accepting the appeal. This is revision petition by the vendees/defendants.

2. The learned counsel for petitioners contends that the finding recorded by the trial Court on Issue No.7 has illegally been reversed by the appellate Court inasmuch as that the respondent had failed to prove performance of Talbs in accordance with law and that even the contents of the plaint did not disclose the necessary particulars about Talbs. Reference has been made by him to Muhammad Siddique v. Muhammad Sharif and others (2005 SCMR 1231), Attiq-ur-Rehman through (Real Father) and another v. Muhammad Amin (PLD 2006 SC 309) and Muhammad Yousuf v. Muhammad Rafique and others (PLD 2006 Lahore 39). The respondent is not represented. The petition, thus, has been heard ex parte.

3. Section 13 of the Punjab Pre-emption Act 1991 which makes it incumbent upon the pre-emptor to make Talb-i-Muwathibat and Talb-i-Ishhad before institution of the suit (Talb-i-Khusumat), lays lot of emphasis that the moment, the pre-emptor acquires knowledge about the transaction of sale, he should immediately come forward and assert his right by making Talb-i-Muwathibat which is then followed by a notice of Talb-i-Ishhad. The said notice is required to be attested by two truthful witnesses. The witnesses are then supposed to appear before the Court in support of the assertions of the pre-emptor. For this purpose, necessary particulars as to where and from whom the pre-emptor acquired knowledge of the transaction, the date and timing thereof and the particulars about the persons present there are required to be stated in the notice of Talb-i-Ishhad, the plaint and then to be proved before the Court by producing positive and convincing evidence. In the instant case, however, the plaint was silent about all such particulars. Paragraph 3 of the plaint is short of the essential details. The evidence led by the respondent was even fraught with contradictions and inconsistencies which was not reliable to return finding in favour of the respondent/plaintiff. The learned trial Court on consideration of the evidence had rightly recorded findings against the respondent/plaintiff. To the contrary, the learned appellate Court reversed the said finding without perhaps realizing the importance of pre-conditions of such a suit i.e. the performance of Talbs. The contents of the plaint and the evidence on the record appear to have escaped the notice of the learned appellate Court. The appellate Court indeed misconstrued Issue No.7 by observing that "In my view Issue No.7 can not be answered in favour of the defendant." Suffice it to observe that the said issue had either to be decided in favour of the plaintiff or against him. In such view of the matter, the view taken by the appellate Court qua the primary and essential issue (Issue No.7 performance of Talbs) is not sustainable and the finding on that issue was wrongly interfered by it. The suit filed by the respondent is liable to be dismissed. Thus, by setting aside the judgment of the appellate Court, the judgment of the trial Court is restored. The revision petition is accepted accordingly, with no order as to costs. F.B./M-64/L Petition accepted.