KHYBER KHAN and others Versus Haji Malik AMANULLAH KHAN

NASIR-UL-MULK, J .--- Against the sale of 408 Kanals, 18 Marlas of land situated in seventy one Khasras in Khata bearing No.285 in Moza Fateh Jai Gharbi, Tehsil and District, D.I. Khan, by Abdur Rahim and others to Khyber Khan and others, Haji Malik Amanullah Khan filed a suit for possession through pre-emption in the Court of senior Civil Judge, D.I. Khan on 5-7-1995, which was decreed on 22-6-2000, upon payment of Rs.22,94,722.26, being the market value of the land. On the relevant issues the Court found the plaintiff's superior right of pre-emption stood established on the ground of his being owner of land contiguous to the suit-land and that he had performed Talbs in accordance with law. On appeal by the vendees the Additional District Judge, D.I. Khan on 1-7-2002 reversed the finding of the trial Court on the issue regarding the plaintiff's superior right of pre-emption, holding that the plaintiff did not own any land contiguous to the suit-land. However, the finding of Talbs was upheld. The Peshawar High Court in its revisional jurisdiction restored the findings and the decree of the trial Court by judgment dated 30-9-2003, which is now impugned in this direct appeal by the vendees.

2. Mr. Gulzarin Kiani, Advocate Supreme Court appeared for the appellants and Mr. Tariq Mehmood along with Syed Asghar Ali Sabzwari, Advocate Supreme Court for the respondent plaintiffs. Mr. Gul Zarin Kiyani addressed elaborate arguments to demolish the plaintiff's claim of being contiguous owner to the suit property and read out the findings of the three Courts in this regard and sought help from Aks Shajra. Additionally he contended, with reference to inheritance mutation whereby land was inherited by the plaintiff on the basis of which he claimed superior right of pre-emption that it has not been established that the plaintiff was owner of the land on the date on which the sale took place on 6-6-1995. The learned counsel submitted that in any case in view of the judgment of this Court by the five members Bench in Civil Appeal No.1951 of 2000, Mian Pir. Muhammad v. Faqir Muhammad decided on 12-12-2006, it has now been settled that non-mention of time, date and place in the plaint of the making of Talb-e-Muwathibat is fatal to a suit of pre-emption and on this score alone the plaintiff's pre-emption suit is liable to be dismissed.

3. Mr. Tariq Mehmood, Advocate Supreme Court, confronted with the judgment in Mian Pir Muhammad v. Faqir Muhammad, submitted that the contention of the learned counsel for the appellants on this account involves resolution of factual controversy which cannot be undertaken at this stage and that in any case all the three Courts, even the Additional District Judge, who had otherwise dismissed the plaintiff's suit, had found the Talbs proved. He also attempted to argue that since the plaintiff had mentioned the date on which he made the demand the purpose for which the judgment in Mian Pir Muhammad v. Faqir Muhammad's required the mentioning of the particulars in the plaint had been fulfilled. The learned counsel also, with the help of oral and documentary evidence, made submissions to establish the plaintiff's superior right of pre-emption on the ground of contiguity.

4. In view of the setting at rest a controversy by a five members Bench of this Court in Mian Pir Muhammad (ibid) by holding that omission to mention the time, date and place of making of Talb-e-Muwathibat in the plaint would be fatal to a suit of pre-emption we need not resolve the dispute between the parties as to whether or not the plaintiff possessed superior right of pre-emption. The plaintiff had though mentioned in the plaint the date of making Talb-e-Muwathibat but had failed to specify in the plaint the time and place were the Talb was made. Omission to mention anyone of the three particulars is the plaint would in view of the rule in Mian Pir Muhammad's case resulted in the dismissal of a pre-emption suit. Resolution of this question does not require any factual determination, as the same is determinable from the bare reading of the plaint.

5. As the plaint of the plaintiff/respondent failed to meet the requirement set in Mian Pir Muhammad's case we are constrained to allow this appeal, set aside the impugned judgment of the High Court as well as the judgment and decree of the trial Court and dismiss the suit of the plaintiff respondent, with no order as to costs.

M.H./K-1/SC Appeal allowed.