Malik NAZIR AHMAD through his legal heirs vs MUHAMMAD YAR

' MIAN MUHAMMAD AJMAL, J.---The petitioners seek leave to appeal against the judgment of the Lahore High Court, Multan Bench, Multan, dated 13-10-1999, whereby R.F.A. No, 54 of 1999, filed by them was dismissed.

2. Brief facts of the case are that the petitioner filed a suit for possession through pre-emption in respect of disputed land against the respondent on the ground of participator in the rights attached to the land sold such as common path, common water course and owner of property contiguous to the land in dispute and, as such, claimed preferential right to purchase the suit-land.

The suit was resisted by the respondent. On divergent pleadings of the parties, the trial Court framed issues recorded evidence of the parties and after hearing of the learned counsel for the parties dismissed the suit vide its judgment, dated 20-2-1995 by holding that the petitioner had failed to fulfil the requirements of Talb-i-Muwathibat. The petitioner assailed the validity of the judgment of the trial Court through Regular First Appeal No,54 of 1995 which too met the same fate vide judgment, dated 13-10-1999 passed by the learned Division Bench of the Lahore High Court, Circuit Bench, Multan.

3. Learned counsel for the petitioner contended that the Courts below have erred in holding that the 'petitioner had failed to fulfil the requirement of making Talb-i-Muwathibat.

4. We have heard the learned counsel for the petitioner and have perused the record of the case. In the plaint the petitioner averred that the sale took place on 18-8-1990, he came to know about it on 19-8-1990 and he in presence of Zafar Hussain. P.W.3 and Ahmad Bakhsh P.W.5 declared that he would pre-empt the sale. On 25-8-1990 he sent a noticeof Talb-i-Ishhad to the respondent attested by the aforesaid witnesses. In the evidence Zafar Hussain P.W.3 did not say even word about Talb-iMuwathibat that the plaintiff/petitioner declared his intention to exercise his right of pre-emption in his presence and simply stated that he signed the notice Exh. P/3 which was thumb-marked by Ahmad Bakhsh and the petitioner also signed the said notice. He further stated that he did, not know anything else. The petitioner in his deposition stated that he was sitting in his 'Dera' at noon time alongwith 2/3 persons where Ahmad Bakhsh informed him about the sale of the land by Mst. Fatima Begum in favour of the defendant and he declared his intention to exercise his preferential right of pre-emption. After 2/3 days he sent a notice to the defendant which was signed by him and by Zafar Hussain while Ahmad Bakhsh thumb-impressed it. Ahmad Bakhsh also stated that when he informed the petitioner about the sale of the land, he was sitting with 2/3persons and he declared that he would pre-empt the sale. It may be noted that both the petitioner and Ahmad Bakhsh have not stated that atthe time of declaration Zafar Hussain was present and this fact finds support from the testimony of Zafar Hussain himself who statted that except for signing the notice he did not know anything else. In view ofthe evidence on record the trial Court found that the petitioner failed toprove Talb-i-Muwathibat which finding of fact was upheld by the High Court in its appellate jurisdiction. Talb-i-Muwathibat has to be madeimmediately on attaining the knowledge about the sale by the intentivepre-emptor declaring his intention to pre-empt the sale. If such a demand is not made or not established by cogent evidence, the subsequentdemands become inefficacious. We do not find any error or legal infirmity in the impugned judgment warranting interference by this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan.

5. For the foregoing reasons, this petition being devoid of any merits is dismissed and leave refused.