Mufti NASIR IQBAL Versus AZIZUR REHMAN and others
Mufti Nasir Iqbal, petitioner/plaintiff filed suit against Azizur Rehman for possession through pre-emption of land mentioned in the heading of the plaint. The said suit was resisted by respondents/ defendants by filing written statement. The learned trial Court after framing issues and recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 22-9-1999. Feeling aggrieved with the said judgment and decree he filed Appeal No.95/13 in the Court of learned Additional District Judge, Charsadda which too was dismissed vide judgment and decree, dated` 1-3-2000. Being not contented with the judgments and decrees of the Courts below,, the petitioner has filed the revision petition in hand.
2. Mian Saadullah Jandoli, the learned counsel representing the petitioner argued that the Cdurts below failed to appreciate the evidence available on record. The alleged sale-deed relied by the respondents/ defendants were not proved in accordance with law and the said deeds were forged and fictitious which had been manufactured to defeat the right of pre-emption of petitioner/plaintiff.
3. It was also argued that the petitioner had fulfilled the requirements of Talbs in accordance with law but the Courts below failed to appreciate the same.
4. On the other hand Mi. Nasimullah Khan, the learned counsel representing the respondents argued that neither the Talbs were performed in accordance with law nor the suit filed by the petitioner/ plaintiff was within time.
5. It was also argued that neither Talb-e-Muwathibat was proved nor the marginal witnesses of notices of Talb-e-Ishhad could prove the same, hence the petitioner/plaintiff was rightly non-suited.
6. I have heard the learned counsel for the parties and perused the record.
7. The question that requires consideration in this case is as to whether the Talbs were made in accordance with law by the petitioner/ plaintiff, answer to this question is in negative. Petitioner/plaintiff in the plaint stated that when the respondents/defendants started digging the foundations on 6-9-1995 at 6-00 p.m. he raised Talb-e-Muwathibat and thereafter on 16-9-1995 and 18-9-1995, he sent notices of Talb-e-Ishhad. He examined himself as P.W.2. In the examination-in-chief he did not state a single, word with regard to Talb-e-Muwathibat made by him. He stated that he saw the defendants on 6-9-1995 that they were digging foundations. He sent Noor Hassan to defendants to enquire as to what they were doing. NOOT Hassan told that defendants had purchased the suit property. Defendants also came to him and told him that they had purchased the suit property. The plaintiff did not make jumping demand there and then but at 6-00 p.m. in his Hujra he made Talb-e-Muwathibat. Thereafter, he sent notices of Talb-e-Ishhad. It is by now settled law that a jumping demand is to be made on learning about the sale of the property, but having learnt the same at the spot about the sale of the property in favour of respondents/defendants, he did not make Talb-e -Muwathibat.
8. So far as Talb-e-Ishhad is concerned notices Exh. P. W .2/3 and 2/4 were sent to respondents/defendants. Those notices were witnessed by Noor Hassan and Bazir Khan as marginal witnesses: Noor Hassan was examined as P.W.3. He did not support the notices of Talb-e-Ishhad at all. In cross-examination he stated:--
8. Bazir Khan the other marginal witness of notices Talb-e-Ishhad Exh.P.W.2/3 and 2/4 was also examined as P.W.4. This witness also did not support the notices mentioned above. In cross-examination he stated:--
9. The aforequoted portions of the statements of P.Ws.3 and 4 show that the notices of Talb-e-lshhad were not proved in accordance with law by the petitioner/plaintiff.
10. Another factor which goes against him is that in the notices of Talb-e-Ishhad the petitioner did not mention as to when and where he had made earlier demand. His omission to do so was also fatal to case. In Mst. Akbari Begum v. Nadeem Ahmad and 2 others 1993 CLC 353 it was held:--
"Non-reference in the second demand to the earlier demand was fatal to the claim of pre-emption."
11. The petitioner/plaintiff as mentioned above not only failed to prove Talb-e-Muwathibat, but he did not succeed in proving Talb-e-Ishhad also.
12. Requirement of Talbs being sine qua non for the enforcement of right of pre-emption recognized by the Muslim Law, its non-compliance had the effect of extinguishing the pre-emptive right of all such pre-emptor as held by august Supreme Court of Pakistan in Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC' 870.
13. The Courts below have not only properly appreciated the evidence available on record, but have also rightly applied the law while dismissing the suit as well as appeal of the plaintiff/ petitioner.
I have not been able to find out any misreading/non-reading of evidence or any illegality or any material irregularity or, any jurisdictional error or defect warranting interference in the impugned concurrent findings of the Courts of competent jurisdiction. Resultantly the revision petition is dismissed with no orders as to costs.
H. B. T./116/P Revision petition dismissed.