NAWAB DIN through L.Rs, vs FAQIR SAIN

SARDAR MUHAMMAD RAZA KHAN, J.--- The legal heirs of Nawab Din, pre-emptor in the original suit, have filed this appeal after leave of Court against the judgment, dated 4-12-2002, whereby, his revision against the judgment dated 13-5-1998 of the First Appellate Court, was dismissed. Nawab Din pre-emptor, granted a decree by the trial Court, was non-suited by the Appellate Court as well as the High Court---holding that the pre-emptor had not performed Talb-iMuwathibat etc.

2. Learned counsel for the appellant submitted that in the written statement the defendant had only challenged the performance of Talb-iIshhad, whereas the Courts have non-suited the pre- emptor for the nonperformance of Talb-i-Muwathibat as well. That no issue was framed regarding Talb-i-Muwathibat. So far as the real controversy between the parties is concerned, it can better be reflected from the issues framed. Issue to that effect clearly contains a reference to both the Talbs, of Muwathibat and of Ishhad. There seems to be no surprise sprung upon the pre-emptor.

3. Talb-i-Muwathibat is a personal act of prospective pre-emptor. Whereby his actual right is activated. It is to be exercised at a time when no suit is yet filed, no notice of Talb-i-Ishhad is served, no Khasomat is preferred and when no defendant is in picture. Thus, the act of Talb-i- Muwathibat being pre-requisite to activate the very right of pre- A emption and being subjective and spontaneous of the pre-emptor, has little to be waived by the defendant. The proof thereof is, therefore, necessary even if some suit for pre-emption is not contested by the defendant and even if the proceedings are ex parte. Any omission in this behalf, in the written statement, does not extend any benefit to the plaintiff/pre-emptor.

4. To see the proof or otherwise of Talbs, we would revert to the record. The sale having taken place on 26-4-1993, the plaintiff in his plaint discloses having received knowledge thereof on 1-8-1993. As the performance of Talb-i-Muwathibat is restricted to a specific period of time, that is, before dispersal of a Majlis, it remains a matter of limitation by itself and further limits the performance of Talb-i-Ishhad within 14 days there from. The plaintiff, therefore, has to prove also as to what Majlis it was that he performed Talb-i-Muwathibat in.

5. No such Majlis at all is indicated in the plaint. It is not mentioned in the plaint as to who informed the pre-emptor about sale for D the first time. Talb-i-Ishhad is nothing but creating evidence about the Talb concerned.. Quite interesting it is to note that even notice of Talb-iIshhad is totally silent about the existence or otherwise of Muhammad Din as informer. This Muhammad Din is for the first time introduced in the evidence but no benefit could be drawn from him because he is F alleged to have died. Even if alive, there is evidence and strong inferences on record , that he was not present in the Majlis, that he was not an informer and that no Talb was performed in his presence.

6. The Courts have rightly concurred and non-suited the pre F emptor. There being no force in the appeal, it is hereby dismissed.