P L D 2004 Lahore 43 (PLP)

Ch. Mushtaq Ahmad and Ch. Muhammad Zafar Iqbal for Petitioner. Syed Muhammad Zain-ul-Abedin for Respondents. Date of hearing: 10th, October, 2003. Petitioners/plaintiffs who are four in numbers, filed a suit for pre emption against the respondents, which was dismissed by the learned trial Court on the issue of Talbs; appeal filed by the petitioners also failed.

2. Briefly stated the facts of the case are that the petitioners brought a suit for pre-emption on 14-5-1995, claiming that they have superior right of pre-emption being Shaf-i-Khalit and Shaf-i-Jar; the suit land in the case is measuring 151 Kanals and 4 Marlas, situated in Mauza Kalikey, Tehsil Pasroor, District Sialkot, the sale of which, was made in favour of the respondents/vendees on 21-3-1995 through Sale Mutation No.308 of the even date, for a consideration of Rs.30,00,000; the petitioners claimed that they learnt about sale on 26-3-1995 and made Talb-i-Muwathibat, the notice of Talb-i-Ishhad was issued to the respondent on 28-3-1995 and followed by the suit.

3. The matter was contested by the respondents, who inter alia took up the objection that the petitioners had not made valid Talbs; accordingly the learned Civil Judge, was pleased to frame the issues and after recording of evidence, came to the conclusion that the petitioners have superior right of pre-emption but they have failed to prove the Talbs, therefore, by giving findings on this issue (Issue No.2), against the petitioners, the suit was dismissed vide judgment and decree dated 31-7-1996. Against the above, the petitioners preferred an appeal, but without success. Hence this civil revision.

4. Before proceeding with the merits of the case, it may be pertinent to mention that an application Civil Miscellaneous No.1/C of 2002, has been moved by the petitioners Nos.2 and 3, who do not want to claim right of pre-emption and therefore, have sought the deletion of their names from the array of the parties and have asserted that they have no objection if the suit is decreed in favour of remaining two petitioners. Another application Civil Miscellaneous No.2/C of 2002, was also filed by the petitioner No.4, who wanted to withdraw from the contest and expressed his no objection, if the decree of the entire suit land is passed in favour of petitioner No. 1, but before any decision could be made on such applications, Ch. Musthaq Ahmed counsel for the said applicant on 12-12-2002, made a statement withdrawing the application on behalf of petitioner No.4, meaning thereby that he is also one of the contestants in the matter whereas for the other two petitioners, the request, for withdrawing from the contest has been repeated, which is allowed.

5. In the above circumstances, particularly, withdrawal of the petitioners Nos.2 and 3, from their claim, learned counsel for the respondents has .raised an objection that the present petition and the suit for the pre-emption, is liable to be dismissed on account of principle of sinker. He has argued that any pre-emptor, who joins with him a person having no right of pre-emption, would be non-suited on the aforementioned principle. However, meeting this objection, learned counsel for the petitioners has argued that because there is no specific provision about the sinker in the Pre-emption Act, 1991, therefore, in view of section 3 of the Act, guidance must be taken from the Qur'an and Sunnah. He has relied upon Explanation No.IV to section 236 of the Mohammedan Law, by Mulla to submit that where there are two or more persons claim right of pre-emption, each one of them is required to make the demands, unless one of them was authorized to do so. However, if the suit is brought by several persons for the pre-emption and only one of them has proved the Talb on his own behalf and not for the other, the suit shall proceed as: regards him, but it should be dismissed for the other. Therefore, if the petitioners Nos.2 and 3, have not been able to establish the Talbs Muwathibat, and wants to withdraw from the contest, the case of other petitioners cannot be prejudiced, who have proved Talb-I-Muwathibat on the record. learned counsel has also relied upon section 241 of Mohammedan Law by Mulla and argued that a co-plaintiff, who joins with him another plaintiff, who is a stranger having no right of pre-emption, would be disentitled to the grant of decree, and would lose his right as-well on the basis of sinker. But where the other co-plaintiff though has a right of pre-emption, however, has not been able to prove the making of necessary Talbs the first category of the plaintiff. would not be non-suited. In the instant case, according to the finding of the learned trial Court on the issue of superior right (Issue No. 1), all the petitioners were found having superior right of pre-emption and such finding has neither been challenged by the respondents in appeal by filing cross appeal, etc. even verbally, therefore, the learned Appellate Court has not reversed the finding, which remains intact, resultantly, petitioners Nos. 1 and 4, cannot be non-suited on the ground that petitioners Nos.2 and 3 had failed to establish the Talbs, though having superior right of pre-emption.

6. I have heard the learned counsel for the parties. For resolving the proposition, whether the doctrine of sinker is attracted to the present case, suffice it to say that the provisions of sections 236 and 241 of the Mohammedan Law, are very much clear, which should be resorted to in the light of section 3 of the Punjab Pre-emption Act, 1991. From the collective reading of these two provisions, it emerges beyond free of contradiction that if there are more than one pre-emptors and anyone or them had failed to prove the Talbs, but otherwise, has a right of pre emption, it is he who shall be non-suited and the case shall proceed for the remaining plaintiffs, as if the pre-emptor failing to establish the Talbs was not a party to the proceedings. However, if a co-plaintiff has no right of pre-emption, irrespective he has made and proved the Talbs, the principle of sinker shall apply and the other plaintiff shall also suffer entailing dismissal of their suit, on account of joining alongwith them a stranger to the cause.

7. In the instant case, as has been held above, the right of pre emption has been proved by all the four plaintiffs, and so declared by the learned trial Court, while giving findings-on Issue No. 1, which finding has neither been challenged in appeal by the respondents nor reversed by the learned Appellate Court. Learned counsel for the respondents even today on the basis of the record, has failed to prove if petitioners Nos.2 and 3, had no superior right of pre-emption, therefore, I am constrained to repel the objection of respondents' side that the present revision as also the suit filed by the petitioners, is liable to be dismissed on account of the doctrine of sinker.

8. Now coming to the merit of the case, learned counsel for the petitioners has conceded that petitioners Nos.2 and 3, who otherwise, have withdrawn from the contest, have failed to prove Talb-i-Muwathibat, but it is argued that petitioners Nos.1 and 4, learnt about the sale at their Dera at about "Asar" time, when an unknown person driving a tractor, at the suit land, apprised them of the sale and they immediately made the Talb-i- Muwathibat. The person who informed petitioners Nos. 1 and 4, about the sale has not been examined on .the reasoning-that his identification is not known. It seems to be most improbable because the petitioners were aware of the importance of the first Talb for maintaining a pre-emption act and for this reason, also allegedly made the Talbs. They were supposed to enquire for the said person his identification, so as to examine him in support of their case. The number of the tractor could have been noted to subsequently locate the person. But no such effort is forthcoming on the record. No other independent witness has been examined to establish that the petitioners learnt about the sale at the venue and time and made Talb-i-Muwathibat. Only one out of the two petitioners, namely Zafar Ullah has appeared as P.W.1 and the other co plaintiff, who accompanied him at the time when they allegedly learnt about the sale and asserted the Talb, for no good reason, has not been produced. There is no corroboration of the statement of P.W.1, about the making of Talb-i-Muwathibat, thus his solitary statement has been rightly disbelieved by the two Courts below I for valid reasons. No misreading or non-reading has been shown, resultantly, I do not find this to be a fit case for interference in the revisional jurisdiction as far as the finding of the Courts below on the issue of Talb-i-Muwathibat is concerned. For Talab-i-Ishhad, suffice it to say that when the petitioners have failed to prove Talb-i-Muwathibat, making or otherwise of valid Talb-i-Ishhad is immaterial. In the light of above, this petition thus has no force and the same is hereby dismissed. H.B.T./M-2329/L Revision petition dismissed.