SALIM KHAN, J.--- A suit was instituted by Ghulam Yousuf son of Ghulam Rasool against a person, not related to the plaintiff, by the name of Ghulam Rasool son of Malka of District D.I. Khan. The suit was for 2 Kanals, 13 Marlas land out of 10 Kanals, 12 Marlas land in Khasra No.388 and for 5 Kanals, 10 Marlas land out of 55 Kanals land in Khasra No.364. The suit was contested by the defendant, evidence of the panes was recorded after framing issues, and the learned Civil Judge vide his judgment and decree in Suit No.98/1 instituted on 21-4-1994, dismissed the suit of the pre-emptor on 6-2-2001. On Civil Appeal No.16 of 2001 instituted on 10-3-2001, the learned District Judge, D.I.
Khan, dismissed the appeal, and subjected the plaintiff-appellant to pay an amount of Rs.3,000 to the respondent, while partially accepted Cross-Objection No.49 of 2001 of the respondent. Feeling aggrieved, the plaintiff came to this Court.
2. The learned counsel for the parties accepted during their arguments, and perusal of the record at this stage that the total sale consideration was Rs.18,000, but the three brothers of the respondent and the plaintiff accepted the consideration, after compromise, as Rs.21,100, out of which Rs.15,750 were paid to the three brothers of the respondent in lieu of transfer of their shares in the suit property by attesting mutation in favour of the plaintiff, and that market value of the remaining 1/4th share of the suit property in the name of the defendant was Rs.5,275. It is not disputed that the pre-emptor-plaintiff-appellant had superior right of pre-emption as against the right of the defendant-respondent for property in Khasra No.364, but did not have any right of pre- emption regarding the property in Khasra No.388.
3.The only controversy between the panics was regarding Talb-i-Muwathibat and Talb-i-Ishhad. It was continuously contended that the plaintiff had stated in the plaint that he got information four days before sending the notice which was sent on 28-3-1994, but the plaintiff accepted in his statement that he got information on 28-3-1994, which meant that he got information on the same date, on which date the notice was sent by him. The learned Civil Judge was of the view that the first Talb should have been made on 24-3-1994 but the same was shown to had been made on 28-3-1994 in the evidence. The learned Civil Judge was further of the view that the Talbs were not properly proved. The learned Appellate Court was of the view that the entry on Mutation No.4022 was made on 21-3-1994, and, therefore, the plaintiff had the knowledge on the same date about the sale in question, but did not make any Talb. Hence, his appeal was dismissed.
4. Mutation No.3337 was attested on 28-12-1993, while the suit was instituted on 11-4-1994. Counting the dates from 28-12-1993 to 11-4-1994, the suit being within one hundred and four days, was within the prescribed period for Talb-i-Khusumat. The period between 21-3-1994 to 28-3-1994 (the date of notice) is eight days. The plaintiff alleged that he had made Talb-i-Muwathibat four days before making Talb-i-Ishhad on 24-3-1994, which is a date four days after the entry of mutation in favour of the plaintiff. The learned counsel for the petitioner-appellant contended that neither the copy of Roznamcha regarding the said entry on the mutation dated 21-3-1994 was brought by the defendant on record nor the plaintiff was confronted with the said entry, or the copy of Roznamcha, nor any question was asked from the plaintiff at the time of evidence in this respect. He was of the view that the plaintiff was not to be taken responsible for an entry not proved to had been made at the instance of the plaintiff. He further contended that the Talbs were made in the month of March, 1994, while the statement of the plaintiff was recorded on 5-10-2000, and it was not expected of the plaintiff to remember the exact date of Talbs after such a long period.
5. Talb-i-Muwathibat is an indication of the intention of the pre-emptor to pre-empt the sale from the time of his knowledge regarding the sale, and the Talb declares such intention of the plaintiff, otherwise his right of pre-emption shall stand extinguished. The conduct of the pre-emptor, amounting to estoppel, and the waiver of his right of Shufa against the vendor has to be proved by the vendee by positive evidence. The vendee has not proved estoppel of, or waiver of right by the pre-emptor. It is also not proved by the defendant that there was a Majlis (meeting) on 21-3-1994, in which the pre-emptor was informed about the sale, and the pre-emptor failed to make the Talb till the disposal of that meeting. Mere knowledge, even it proved, without a Majlis does not disentitle the pre-emptor if he fails to make the Talb on that knowledge. Not only the information to the pre- emptor about the sale, but also the existence of a Majlis are conditions precedent for the making of Talb-i-Muwathibat. The intention to continue with the right of pre-emption by the plaintiff is further supported by making Talb-i-Ishhad on 28-3-1994.
6. Having held that the estoppel, or the waiver of the right of pre-emption has not been proved, no Majlis (meeting) has been proved before the date mentioned in the statement (four days before the notice) and the date of entry (21-3-1994) being within fourteen days from 28-3-1994, the version of the plaintiff regarding the Talb has to be accepted.
7. As already held, the market value of the property is accepted as Rs.5,275 and the plaintiff had superior right of pre-emption regarding five Kanals ten Marlas land in Khasra No.364, but had no right of pre-emption regarding two Kanals thirteen Marlas land in Khasra No.388. I, therefore, hold that the plaintiff had properly made Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat for five Kanals, ten Marlas land in Khasra No.364. The civil revision regarding that land is accepted, the impugned judgments and decrees of the learned two Courts are set aside to that extent, and the suit of the plaintiff is decreed to the extent of five Kanals, ten Marlas land in Khasra No.364 on the payment of Rs.3559.82, to be deposited within one month from today, if not already deposited, otherwise the suit of the plaintiff shall stand dismissed. The suit of the plaintiff to the extent of two Kanals, thirteen Marlas land in the disputed Khasra No.388 is, however, dismissed, leaving the parties to bear their own costs of litigation throughout.