SHAFI MUHAMMAD Versus MUHAMMAD HAZAR KHAN

ORDER

MUHAMMAD ILYAS, J.‑ ‑‑This petition has arisen out of a suit for pre‑emption brought by the petitioner, Shafi Muhammad against the respondents, Muhammad Hazar Khan, etc., in respect of a piece of land sold by one Muhammad Ramzan. The suit was dismissed by the Civil Judge, Mailsi, District Vehari, inter alia, on the ground that the petitioner had not made the necessary Talabs. The petitioner went in appeal before an Additional District Judge but in vain. He then filed a revision petition before the Lahore High Court, Multan Bench, but the same was dismissed by a Single Judge thereof. Hence this petition for leave to appeal' against the judgment of the learned Single Judge.

2. It was contended by learned counsel for the petitioner that the petitioner had made averments regarding Talabs but the same were not taken into consideration by the learned Courts which have dealt with the matter earlier. In this connection, he invited our attention to paragraph 5 of the plaint which reads as follows:

Learned counsel, therefore, maintained that the petitioner could not be non- suited for failure to make the necessary Talabs.

3. As is evident from paragraph 5 of the plaint, reproduced above, there is an averment of general nature that the petitioner asked the respondents to transfer the disputed land to him but they refused to do so. Such averments were made in pre‑emption suits even when the Islamic Law of Pre‑emption had not been introduced in the country. It was not denied by learned counsel for the petitioner that no suit for pre‑emption can succeed unless the pre emptor makes necessary Talabs. As indicated by the learned civil Judge in his judgment, it was obligatory for the petitioner to make Talb‑i‑Muwathibat, Talb‑i‑Ishhad and Talb‑i‑Khusumat. The first two Talabs are to be made before filing a suit for pre‑emption and the third one is made by instituting the suit. Relevant provisions of law are contained in section 13 of the Punjab Pre emption Act, 1991, which reads as follows:

"13. Demand of Pre‑emotion.‑‑(1) The right of Pre‑emption of a person shall be extinguished unless such person makes demand of pre emption in the following order, namely:

(a) `Talb‑i‑Muwathibat';

(b) 'Talb‑i‑Ishhad'; and .

(c) `Talb‑i‑Khusumat'.

EXPLANATION

I. `Talb‑e‑Muwathibat' means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre‑emption.

Note.‑‑ Any words indicative of intention to exercise, the right of pre emption are sufficient.

II. `Talb‑i‑Ishhad' means demand by establishing evidence.

III. `Talb‑i‑Khusumat' means demand by filing a suit.

(2) When the fact of sale comes within the knowledge of a pre‑emptor through any source, he shall make `Talb‑i‑Muwathibat'.

(3) Where a pre‑emptor has made `Talb‑i‑Muwathibat' under subsection (2), 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:

Provided that in areas where owing to lack of post office facilities it is not possible for the pre‑emptor to give registered notice, he may make `Talb‑i‑Ishhad' in the presence of two truthful witnesses.

(4) Where a pre‑emptor has satisfied the requirements of `Talb‑i Muwathibat' under subsection (2) and Talb‑i‑Ishhad' under sub section (3), he shall make `Talb‑i‑Khusumat' in the Court of competent jurisdiction to enforce his right of pre‑emption."

4. There is nothing in the plaint to indicate the place where Talb‑i Muwathibat was made by the petitioner. There is also no mention of the manner of making Talb‑i‑Ishhad and the date on which this was done. Learned counsel has not invited our attention to any acknowledgement receipt in this regard nor it was his plea that postal facilities were not available for sending a notice in writing for the purpose of making Talb‑i‑Ishhad. The present case relates to the district of Vehari and it can be safely presumed that the postal facilities are available in this well‑settled area. It was not denied by learned counsel for the petitioner that making of Talb‑i‑Muwathibat and Talb‑i‑Ishhad was a pre‑requisite to the filing of the suit. Recital in the plaint, relied upon by ' him, however, did not make mention of any of the particulars which were required to be disclosed in connection with Talb‑i‑Muwathibat and Talb‑i- Ishhad. The said recital is usually made in every suit in one form or the other. For instance, in a money suit, the plaintiff would say that he asked the defendant to pay him the amount in suit but he had declined to do so or was putting off his claim and, therefore, he has resorted to litigation. The averments made in paragraph 5 of the plaint do not, to our mind, justify a conclusion that the petitioner has made Talb‑i‑Muwathibat or Talb‑i‑Ishhad, as contemplated by law, before making Talb‑i‑Khusumat by filing the suit.

5. In view of the above discussion, we find nothing wrong with the unanimous verdict of the learned Courts, which have considered the petitioner's claim earlier, that he had failed to make the first two Talabs which were sine qua non for pre‑empting the sale in question. The suit was, therefore, liable to be dismissed due to that shortcoming of the petitioner alone.

6. Resultantly, we refuse to grant leave to appeal against the judgment of the learned Single Judge of the High Court and dismiss this petition.

AA./S‑1010/S Leave refused.