2007 PLP 2447 (YLR)

MUHAMMAD AKHTAR SHABBIR J.

Since the appellant has impugned the judgment passed by the learned Appellate Court in the instant appeal, therefore, for just decision of this Regular Second Appeal narration of facts need not be necessary. The learned trial Court after framing various issues, recording and appreciating the evidence of the parties, pro and contra, vide its judgment and decree dated 26-7-1994 decreed the suit for pre-emption in favour of the plaintiff. Feeling aggrieved the respondents-defendants preferred an appeal which came up for hearing before the learned Additional District Judge, Hafizabad, who vide judgment and. decree dated 1-9-1994 accepted the appeal dismissing the suit filed by the plaintiff-appellant, hence this R.S.A.

2. The learned counsel for the appellant-plaintiff has challenged the findings of lower Appellate Court on Issue No.8 which is as under:-- "Whether the requirements of Talbs have been fulfilled by the plaintiff under the law? OPP" contending that the appellant-plaintiff has performed all the three requirements of Talbs and specifically mentioned in the notice that he came to know about the sale of the property in dispute 7 days ago from today" i.e. the date when the notice of "Talb-i-Ishhad" was- issued; further contended that the oral and documentary evidence qua the performance of Talbs produced by the plaintiff/appellant has been illegally ignored and misinterpreted by the Appellate Court.

3. On the other hand, the learned .counsel for the respondents-defendants vehemently opposed the arguments advanced by the counsel for the appellant contending that the appellant has failed to perform three requirements of Talbs and supported the findings of learned lower Appellate Court on Issue No.8.

4. I have heard the learned counsel for the parties, perused the judgments of both the Courts below and particularly examined the notice sent by the plaintiff while he was performing "Talb-i-Ishhad" , wherein it has been mentioned as under:-- The requirement of making Talb-i-Ishhad has been provided under .section 13 subsection (3) of the Punjab Pre-emption Act, which is reproduced as under: "Where a pre-emptor has made Talb-i-Muwathibat under sub-section (2) of the said Act he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption."

5. To establish his case the plaintiff produced Shahnaz Ahmed, Patwari Halqa, who had produced Ask Shajra of the suit- A land as P. W.1, himself appeared ,in the witness box as P.W.2, Saleh son of Hayat as P.W.3, Allah Bakhsh as P.W.4 and Muhammad Hanif Alam appeared as P.W.S. On this subject Nazar Muhammad appellant-plaintiff has appeared as P.W.2 and deposed in his statement in the Court that he came to know about the sale in dispute after 20/22 days upon which he asked to the respondents to pre-empt the sale-deed Again said that he said to Muhammad Bashir and Kale Khan that he has to pre-empt the same. On the other hand, in cross-examination he has stated that it was the day of 15 "Sawan" that date becomes about 30-7-1990 approximately. Similarly P.W.3 Saleh has said that it was the 15th of "Harrh" when the date would be 9-7-1990. It is evident that the sale took place on 3-4-1990. Allah Bakhsh P.W.4 has stated that about 2 or 3 days after the sale Nazar Muhammad-plaintiff came into the knowledge of sale. The plaintiff has placed on record the notice as required under "Talb-i-Ishhad", which was reduced into writing on 3-5-1990 and in the said notice the plaintiff has stated that he came to know about the sale-deed about 7 days ago. This notice was sent to the respondents-defendants on 12-5-1990 which shows that, if at all, for the sake of arguments it is admitted that the plaintiff acquired to the knowledge of the impugned sale about 7 days ago from 3-5-1990, this date comes to 23-4-1990. Moreover as it is stated above the statements of the plaintiff and his witnesses namely Muhammad Saleh P.W.3 and Allah Bakhsh P.W.4 qua the date of knowledge of sale are contradictory in nature. So far as the second contention of the learned counsel for the appellant-plaintiff that the appellate Court has ignored and misinterpreted his evidence is concerned, I am of the opinion that the appellate Court took a count of every bit of evidence, produced by the plaintiff orally as well as in the shape of documents and rightly justified in holding that the notice had not been issued in accordance with law. 5-A. It is settled proposition of law that the pre-emptor, in order to succeed in a suit for pre-emption must establish that he made the three demands of Talbs in accordance with law. The Talb-e-Muwathibat, the first demand is usually described as the jumping demand under section 13(1) of the Act which applies to the present case defines "Talb-i-Muwathibat" as immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his/her intention to exercise the right of pre-emption. The first demand is followed by Talb-i-Ishhad, the E second demand by the pre-emptor which requires sending of the registered A.D. notice in writing attested by two truthful witnesses' by the pre-emptors to the vendee or vendees as soon as possible after his first demand but not later than two weeks from the date the pre-emptor became aware of the sale confirming his/her intention to exercise the right of pre-emption. The Honourable Supreme Court of Pakistan has discussed this principle in case of Mst. Shamim Akhtar v. Kh. Maqsood Ahmed and 3 others (1998 SCMR 2227) on the basis "Said Kamal's case" (PLD 1986 SC 360), the Shariat Appellate Bench had laid down the manner of exercise of Talb-i-Muwathibat as follows:--

6. It is also settled proposition of law that if any of the three demands is missing the plaintiff/pre-emptor is not entitled for the pre-emption decree. There is no material on the record to establish that in the first meeting the pre-emptor declared his intention to pre-empt the suit-land. In the case in hand, after examination of the record, I found that the evidence produced by the plaintiff himself on the very crucial point of "knowledge of sale" is contradictory in nature and the manner I in which the second "Talb-i-Ishhad" was made is also strengthened the fact that the pre-emptor had not made Talb-i-Muwathibat , which is the jumping demand well in time.

7. For the forgoing reasons, this Regular Second Appeal being devoid of force is dismissed. S.A.K./N-33/L Appeal dismissed.