M. YASIN Versus BARO (deceased) through Fatima Bibi

ABDUL WAHEED KHAN, J .---A suit for possession of land measuring 4 kanals 8 marlas through pre-emption was dismissed by the Civil Court vide judgment and decree dated 12-3-2008 and the appeal filed there against also met the same fate vide judgment dated 22-5-2009.

2. Against the sale of land measuring 4-Kanals, 8-Marlas, the present petitioners filed a suit for pre-emption on the grounds of Shafi-Khaleet, Shafi-Shareek and Shafi Jar, as according to them, they have preferential right of Shafi Khaleet, (para No.2 of the plaint). The suit was contested by the defendants/respondents mainly for the reason that the petitioners-plaintiffs could not fulfil pre-requisites of Talb-e-Muwathibat.

3. The contentions of learned counsel for the petitioners are that although the petitioners have not mentioned the place and so also the time when they came to know about the sale and they made a declaration that they would exercise their right of pre-emption but all the P.Ws. have given the details of the said place and also time, therefore, the requirements of Talb-e-Muwathibat were fulfilled.

4. Arguments heard and material available on the record perused. The petitioners/plaintiffs have given the details of Talb-e-Muwathibat in para-3 of the plaint which is hereby reproduced:

From the abovementioned averments of the plaint, it is clear that the petitioners/plaintiffs did not mention therein, the time and place when they made a declaration that they would exercise the right of pre-emption. The Hon'ble Supreme Court of Pakistan in the case of "Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others"(PLD 2007 Supreme Court 302) have held as under:--

"Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-e-Muwathibat' and date of issuing the notice of performance of Talb-e-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit."

The Hon'ble Supreme Court of Pakistan in case of Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559) has held as under:--

"It is necessary that as soon as the pre-emptor acquires knowledge of sale of pre-empted property, he would make immediate demand about his desire and intention to assert his right of pre-emption without slightest loss of time and ' after making Talb-i-Muwathibat in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. Talb e-Ishhad as soon as possible after making of Talb-e-Muwathibat, but not later than two weeks from the date of knowledge/ performance of Talb-e-Muwathibat. The mentioning of date, place and time in the plaint in a suit for pre- emption is mandatory regarding Talb-e-Muwathibat because from such date the time provided by the statute for making of Talb-e-Ishhad i.e. 14 days, can be calculated. If there is no mention of date, place and time of knowledge about sale and malting of Talb-e-Muwathibat, then it would be very difficult to give effect to section 13(3) of the Act and there is every possibility that instead of allowing letter of law to remain in force, the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-e-Muwathibat in his statement in court and then on the basis of the same, try to justify the delay, if any, occurred in the performance of Talb-e-Ishhad. Performance of both these Talbs is a sine qua non for getting a decree in a pre-emption suit. This Court has approved the view that a plaint wherein date, place and time of making of Talb-e-Muwathibat and date of issuing notice of Talb-i-Ishhad in terms of section 13 of the Act, is not provided, it would be fatal for the pre-emption suit."

5. In view of the above proposition of law when the petitioners/plaintiffs failed to mention the place and time when they made talb-e-muwathibat, the same is fatal for the pre-emption suit. The suit has rightly been dismissed by the Civil Court. Learned counsel for the petitioners could not point out any illegality or irregularity in the impugned judgments.

6. For what has been discussed above; this petition is dismissed in limine.

H.B.T./M-930/L Petition dismissed.