1. ' This is a revision application under section 115, Cr.P.C. Filed by the learned counsel for the applicant challenging the legality, propriety and correctness of judgment and decree, dated 24-10-1996 passed by the learned District Judge; Ghotki whereby the Civil Appeal No,294 of 1995 against the judgment, dated 13-10-1994 passed by the learned Senior Civil Judge, Ghotki was allowed.
2. ' The facts germane to the present revision are that applicant filed F.C. Suit No,109 of 1988 in the Court of Senior Civil Judge, Ghotki for possession through pre-emption and permanent injunction against the respondents on 28-6-1988. It was asserted by him that he was co-sharer with the defendants/respondents 2 to 7, having 20 paisas share in the suit-land bearing S. Nos.86 and 87 situated in Deh Ibrahim Mahar Taluka Ghotki which was purchased by the defendant/respondent No,1 from defendant/respondents Nos.2 to 7 to the extent of 80 paisas share on statement before Mukhtiarkar, Ghotki without informing the plaintiff/ applicant and without offering him to purchase the same being co-sharer and pre-emptor. It was also stated by the plaintiff/applicant that as soon as he came to know about the sale of the disputed land he made Talb-eMowasibat then and there, for the purchase of the suit-land at the actual price of the land as Rs,21,000 and approached the defendant/respondent No,1, for the transfer of the suit-land but he was kept on false hopes. The plaintiff/applicant thereafter without loss of time called the witnesses and made Talb-e-Ishhad referring expressly to his first demand in presence of the witnesses. It was also alleged in the plaint that the actual . Price of the suit-land was Rs,21,000 at the rate of Rs,7,000 per acre but the defendants/respondents had dishonestly shown the price of the said land amounting to Rs,1,20,000 with an intention to deprive the plaintiff's/ applicant's right of pre-emption. The plaintiff/applicant, therefore, filed the above referred suit.
3. ' After service of notices upon the defendants/respondents, defendants/respondents 1 and 3 filed their joint written statement, whereas the defendants/respondents Nos.2, 4 and 7 were made ex parte as they failed to appear before the trial Court in spite of the service effected on them through publication. The defendants/respondents 1 and 2 in their joint written statement pleaded that the plaintiff/applicant was in the knowledge about the transfer of the disputed land as the defendant/respondents 2 to 7 approached him through Mukhtiarkar, Ghotki for the purchase of the disputed land but he refused to do so. It was denied by them that the plaintiff/applicant approached them and made demands by asserting his right of pre-emption. It was also denied by those defendants/respondents that defendant/respondent No,1 purchased the disputed land for Rs,21,000 and the amount of, sale consideration as Rs,1,21,000 has wrongly been shown to deprive the plaintiff/applicant from his alleged right of pre-emption. It was also asserted by those defendants/respondents that the suit of the plaintiff was undervalued and liable to be dismissed.
4. ' From the pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether suit is not maintainable according to law?
(2) Whether suit is undervalue?
(3) Whether plaintiff has right of pre-emption: If so, its effect?
(4) Whether plaintiff made Talbs in accordance with Muhammadan Law. If so, its effects?
(5) What should the decree be?
5. ' The learned Court at the time of proceedings of the suit examined applicant/plaintiff and his witnesses namely Muhammad Ismail and Ghulam Nabi and then the side of plaintiff/applicant was closed. The defendant/respondent Ghulam Kadir and his witness namely Din Muhammad were also examined by the learned trial Court and then his side was also closed.
6. ' After hearing the arguments of the learned counsel for the respective parties, the learned trial Court decreed the suit of the plaintiff/ applicant directing him to deposit the court-fee on the amount of Rs,1,20,000 vide his judgment mentioned above.
7. ' The respondents/defendants being aggrieved' and dissatisfied with the judgment of the trial Court filed Civil Appeal No,294 of 1995 in the Court of learned District Judge, Ghotki. In the said appeal an application under section 5 of Limitation Act was filed for condonation of delay. The learned 1st Appellate Court after hearing arguments of the learned counsel for the respective parties set aside the judgment of the learned trial Court vide his judgment referred above. Hence this present revision has been filed.
8. ' I have heard the learned counsel for the respective parties and perused the record.
9. ' It has been contended by the learned counsel for the applicant that the appeal was time-barred and an application under section 5 of Limitation Act was made but the learned Appellate Court wrongly condoned the delay and the reason given in the application was not sufficient to condone the delay. It has further been contended by the learned counsel that the respondent No,1 filed the medical certificate which was issued by a private practitioner in which it was shown that the respondent No,1 was kept at his home at Ghotki where the said doctor visited him. It has also been argued by the learned counsel that the respondent No,1 was in Ghotki he could call his Advocate to sign the papers and was not in such condition that he could not present an appeal within time. The learned counsel for the applicant also argued that the learned Appellate Court has relied upon judgment reported in PLD 1974 Lah. 434 and 1987 SCMR 1543 in which it is held that where the judgment recorded by the trial Court is nullity no limitation applies learned counsel in this regard submits that the judgment of the trial Court was not nullity in the eye of law. It has further been contended by the learned counsel that the applicant is co-sharer in the land in suit alongwith the respondents 2 to 7 who were made ex parte, therefore, the petitioner has established his right of pre-emption being Shafi-ul-Sharik (co-sharer) but the respondents 2 to 7 wrongly sold their share to respondent No,1 through the statement made before the Mukhtiarkar. It was next contended by the learned counsel that the applicant has made Talbs in accordance with Muhammadan Law and he deposited the price as well as the court-fee in Court, therefore, the learned trial Court rightly decreed the suit of the applicant, but the learned 1st Appellate Court has wrongly misinterpreted the law and has distorted the point in issue. It was lastly contended by the learned counsel that the case proceeded in the trial Court after 5 years of its institution, therefore, there could be minor discrepancies. The learned Appellate Court has given much stress on the words in the cross-examination of the plaintiff/ applicant "Tephari Time" and "4 P.M." used by the witnesses and actually Tephari and 4 p.m. Are one and the same. He submits that law is very clear on the point that "No specific words having been prescribed through which expression relating Talb-e- Muwasibat be made. Words indicative of intention to exercise right of pre-emption would be sufficient. The learned counsel for the applicant referred to the cases of Arif Hussain v. Abdul Qayyum Khan and others 1996 CLC 902; Ghulam Qadir and another v. Nadir Khan and 4 others PLD 1989 SC 314 and 1999 CLC 1854 in support of his contentions.
10. ' Controverting to the arguments of the learned counsel for the applicant, it has been contended by Mr. Bhajandas Tejwani learned counsel for respondent No,1 that Talb-e-Mowasibat, right of pre- emption must be claimed immediately on fact of sale being known and the right is lost by delay in doing it, but in the present case the pre-emptor (applicant) did not make the immediate and jumping demand on coming to know the sale in the Registration Office but he proceeded to the disputed land at the distance of 2 and half miles and made there, the claim of pre-emption. It has further been contended that Talb-eMowasibat or jumping demand must be made as soon as pre- emptor was informed of the fact that property in which he is claiming right of pre emption has been sold away and the same to be followed by Talb-eIshhad and delay of minute or second would defeat the right of preemption. It was the next contention of the learned counsel that Talb- eMowasibat or immediate demand means, demand, of jumping by which pre-emptor should make immediate assertion of his right on getting information on transfer of property. Expression of Talb-e-Mowasibat, thus, clearly shows that right of pre-emption must be asserted with utmost promptitude, but in the present case it is not so. It was lastly contended by the learned counsel that it is settled law that both the Talbs are to be made strictly in accordance with the law but in this case admittedly neither Talb-e-Mowasibat was made nor Talb-e-Ishhad was made by specifically referring to the first Talb, therefore, the judgment and decree of the trial Court was void, nullity in the eye of law, excess of jurisdiction and the learned 1st Appellate Court has rightly condoned the delay of 10/11 days and allowed appeal of respondents. The learned counsel referred to the cases reported as Smt. Sundri Bai v. Ghulam Hussain 1982 CLC 2441, Monajal Haq v. Shafiullah and another PLD 1964 Dacca 640, Budho through L.Rs, v. Karim Bux and 5 others 1985 CLC 1037, Muhammad Saeed v. Mst. Hajiani Noor Bai and others 1983 CLC 1883, Muhammad Ashraf v.
11. Muhammad Tahir and 6 others 1990 MLD 2399, Khudai Rahim v. Abdul Sattar and 5 others 1998 SCMR 956, Haji Qadir Gul v. Moembar Khan and another 1998 SCMR 2102, Mst. Waziran alias Faiq Elahi v. Abdul Sattar and others 1996 CLC 682, Mst. Akbari Begum v. Nadeem Ahmed and 2 other 1993 CLC 353, Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543, Muhammad Shafi v. Mushtaque Ahmed through L.Rs, and others 1996 SCMR 856, Ali Muhammad v. Hussain Bux and others PLD 1976 SC 37, Syed Nazir Hassan v. Settlement Commissioner, Lyalipur and another PLD 1974 Lah. 434, P.N. Amer v. Qabool Muhammad Shah and 4 others 1999 SCMR 4 and Ajmal Khan v. Attaullah Khan and 4 others 1999 MLD 2357 in support of contentions.
12. I have given my anxious consideration to the arguments of learned counsel for respective parties, perused the record and feel that the applicant, has made both the Talbs according to law and the learned trial Court has rightly decreed the suit of the applicant as the applicant has deposited the price as well as the court-fee in the trial Court. The learned 1st ,Appellate Court wrongly misinterpreted the law and has distorted the point in issue. The learned 1st Appellate Court wrongly set aside the judgment and decree of the learned trial Court as there was no material irregularity in the said judgment and decree. Consequently I allow this revision, set aside the judgment and decree of 1st Appellate Court and upheld the judgment and decree of the trial Court whereby the suit of the applicant was allowed.
13. Civil Revision No,90 of 1996 stands disposed of in the above terms.