RAB NAWAZ Versus Mst. FAZEELAT BIBI

ORDER

TASSADUQ HUSSAIN JILLANI, J.--- Petitioners seek leave to appeal against the judgment dated 23-6-2000 passed by a learned Judge of the Lahore High Court, Lahore vide which Civil Revision No.2966-D of 1996 filed by respondents/vendors (Lal Khan and Sattan) was allowed and suit for pre-emption filed by the petitioners was dismissed.

2. Facts in brief are that the land subject-matter of this petition measuring 36 Kanals, 11 Marlas was purchased by one Lal Khan through Mutation No.189, dated 31-3-1991 which was subsequently transferred in pursuance of a decreed dated 14-7-1991 to respondent No.7 Mst. Sattan. Petitioners along with his minor sons challenged the sale by way of pre-emption suit. Vide the judgment and decree dated 3-3-1993 the suit was decreed to the extent of 5/6th shares in favour of petitioners and to the extent of 1/6th share it was dismissed as respondent Mst. Sattan (the subsequent vendee) was found to be co-sharer. This judgment and decree was challenged in appeal, which was partly allowed and it was directed that the land shall be distributed in equal shares between the plaintiffs and Mst. Sattan (the subsequent vendee being co-sharer). The grounds which found favour with the learned appellate Court to modify the judgment and decree, were as under:--

"(8) I have gone through the record and find that the respondent Muhammad Mumtaz, while .appearing as P.W.3 did not state at all, if he himself had ever made the first demand i.e. Talb-i-Muwathibat. What he stated in his statement,' was the fact that when he came to know about the sale through Patwari, he immediately declared that it was the great loss to him, and that he required the property in suit as of necessity, and further that he then went to his house and talked to his sons about the sale of land, and that they then declared that it was the loss to them, and that they would pre-empt the sale. From his this statement, it is clear that he himself did not make any first demand immediately to receive of information of sale of suit-land. As to the declaration made by his sons, however, he has stated that his sons had made the first demand immediately on receipt of such information. There is no rebuttal to this effect on the side of appellant. The remaining respondents Nos.2 to 5 are the real sons of respondent No.1 and they are all co-pre-emptors with him, namely Muhammad Nawaz and Imtiaz Ahmed (respondents Nos.4 and 5) being minors, the first demand had to be made on their behalf by their guardian, who was respondent No.1 and this respondent, as already stated, having not made the first demand by himself is deemed to have made no such demand on behalf of minors. In para.32 of the Muslim Law of Pre-emption by Al-Haj Muhammad Ullah Ibn-i-S. Jung, it is stated that the lawful guardian or father of the minors or the guardian of the person of unsound mind, may lawfully demand pre-emption on his behalf and if he does not do so, then, claim is barred absolutely and cannot be set up again by the minors on coming of age...."

Since the respondent No.1, who is the father and guardian of the these two minors respondents, is found to have not made the demand of pre-emption either by himself or on behalf of these two minors respondents, therefore, the first demand to the extent of respondents Nos.1, 4 and 5 stands not established. However, the demand by respondents Nos.2 and 3 stands proved from the above-stated evidence.

"(12) Consequently, I accept the appeal in part, and set aside the judgment and decree passed by the learned trial Court to the extent it decreed the suit in favour of respondents Nos.1, 4 and 5. However, to the extent of respondents Nos.2 and 3, the decree passed by the learned trial Court is directed to be maintained."

This was challenged in revision by the vendor, which was allowed as the High Court was of the view as follows:

".... There is no independent evidence on the record if respondents Nos.1 and 2, made Talb-i-Muwathibat. As mentioned above, the only statement is that of respondent No.3 who was one of the plaintiffs in case and has been non-suited by the learned appellate Court. Even respondents Nos. 1 and 2 had not come forward to testify that they made any Talbs. P.W.3, was not attorney on behalf of the said respondent to prove and establish the above factum."

3. Learned counsel for the petitioners seeks leave to appeal on the ground that the Talb stood proved through the evidence of P.W.3 as he was attorney of petitioners and that the learned High Court has fallen in error in non-suiting the petitioners.

4. We have gone through the impugned judgment and have given anxious consideration to the submissions made.

5. The only material witness with regard to Talb-i-Muwathibat is P.W.3 Muhammad Mumtaz attorney of the plaintiffs, who does not say that he made Talb-i-Muwathibat to the respondents/vendors, His statement reads as under:--

His sons who are the co-plaintiffs never appeared to endorse the factum of Talb-i-Muwathibat. The expression of Talb is one of the essential elements to establish right of pre-emption. In the instant case the statement of P.W.3 Muhammad Mumtaz, one of the plaintiffs, reflects that he may have discussed the matter with his sons Rib Nawaz and Muhammad Nawaz but he did not convey the Talb-i-Muwathibat to the respondents/vendors. The petitioners/plaintiffs themselves also never expressed such a Talb and they not even bother to appear during trial to say that they had expressed such a Talb. In the face of the afore-referred evidence led the dismissal of suit by the learned High Court is unexceptionable. There is nothing in evidence to persuade us to interfere with the finding of fact arrived at in the impugned judgment. No question of law public importance has been raised either to warrant interference.

6. For what has been discussed above we do not find any merit in this petition, which is dismissed, and leave to appeal is refused.

S.A.K./R-37/SC ????????????????????????????????????????????????????????????????????????????????????????????? Leave refused.