' MAULVI ANWARUL HAQ, J.---V ide sale-deed dated 11-12-1994, the respondent purchased the suit- land, mentioned in the plaint, for a consideration of Rs,1,50,000. On 10-4-1995, the petitioner filed a suit for possession of suit-land by pre-emption. He claimed to be an owner of adjacent property.
The Talbs were pleaded. The respondent filed written statement denying the said allegations.
Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has right of pre-emption against the defendant? OPP
(2) Whether the plaintiff duly made demands of pre-emption In accordance with law? OPP
(3) Whether the ostensible sale price of Rs,1,50,000 was fixed in good faith or actually paid? If not what was the Market value? OPPs
(4) Whether the plaintiff has no cause of action and locus standi? OPD
(5) Whether the suit is frivolous and as such defendant is entitled to special costs? OPD
(6) Relief.
'Evidence of the parties was record. The learned trial Court, vide judgment and decreed dated 12-1- 1999 answered Issue No,1 in favour of the petitioner. Under issue No,3, it was held that a sum of Rs,1,50,000 has been paid as the price. Issues Nos.4 and 5 were answered against the respondent.
Issue No,2 pertaining to Talbs was found against the petitioner. Consequently, the suit was dismissed. A first appeal filed by the petitioner was dismissed by a learned A.D.J., Pasrur, on 16-10- 2001.
2. Learned counsel for the petitioner contends that both the learned Courts below have proceeded to non-suit the petitioner on the ground that he had not mentioned the time, place and source of knowledge pertaining to Talb-i-Muwathibat in the plaint. According to the learned counsel, the impugned judgments are violative of the law laid down in the case of Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCM R 314. The learned counsel for the respondent, on the other hand, support the impugned judgments and decrees with reference to the case of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315.
3. I have gone through the copies of the records with the assistance of the learned counsel for the parties. It will be noted that the only dispute now pertains to the question of performance of the first Talb. Now in para.3 of the plaint, the petitioner stated that he came to know about the sale on 9-4- 1995 when he made the first Talb in the Majlis. Thereafter, he made Talb-i-Ishhad and issued a notice. Aman Ullah petitioner appeared as P.W.3 and stated that Saleem informed him of the sale on 9-4-1995 in the presence of Muhammad Shahbaz and Muhammad Siddique and he made the Talb. The said Shahbaz and Siddique have appeared as P.W.1 and P.W.2 respectively to support the petitioner. Now both the learned Courts below have in their respective judgments discarded the said testimony on the ground that the said particulars had not been stated in the plaint.
4. Now the several judgments referred to in the two impugned judgments led ultimately to the establishment of a larger Bench of the Honourable Judges of the Supreme Court of Pakistan and the matter was resolved in the said case of Altaf Hussain and it was held by their Lordships that the said details would not be necessary to be mentioned in the plaint. The judgment being relied upon by the learned counsel for the respondent, of course, supports him, but it was delivered by a Bench comprising of three Honourable Judges. The Honourable Supreme Court mandates that in such- like situation, the Courts of the country shall follow the decision rendered by the larger Bench. I, therefore, do find that the learned Courts below have acted with material irregularity in the exercise of their respective jurisdiction while proceeding to discard the said testimony on the ground stated by them.
5. The civil revision is accordingly allowed. The impugned judgments and decrees of both the learned Courts below are set aside. The suit filed by the petitioner is decreed in his favour and against the respondent/defendant subject to deposit of Rs,1,70,250 (Rs,1,50,000 as the price and Rs,20,250 as incidental expenses noted in the copy of the sale deed) in the trial Court on or before 31-5-2004. In case the said deposit, after adjustment of any amount already deposited, is not made on or before the said date with the trial Court, the suit of the petitioner shall stand dismissed with costs throughout. At the moment, the parties are left to bear their own costs.