' MIAN SAQIB NISAR, J.---The instant Revision Petition No,1928 of 1995, as also C.R. No,1073 of 1995, C.R.
No,2184 of 1995 and C.R. No,1929 of 1995, are being disposed of together, as common questions of law and facts are involved in all these cases.
2. Briefly stated the facts of the case are, that on 6-7-1986, one Umera sold 19 Kanals and 17 Marlas of land in favour of Ashiq and Arif, through registered sale-deed dated 6-7-1986. On 6-7-1987, Raja Waris, filed a suit for pre-emption, challenging the above sale mainly on the ground that he is the co-sharer in the Khata and have the superior right as against the vendee. While this suit was pending, when the Punjab Pre-emption Act, 1991, came into force. The learned trial Court, dismissed the suit of the petitioner for not having made the requisite Talbs. The petitioner preferred an appeal and the learned appellate Court was pleased to partly allow the same. The findings of the learned trial Court on the issue of Talbs, have been set aside and it has been held that the petitioner and the respondent, both are the co-sharers of the Khata, thus, equally entitled to half of the suit property. Hence this petition.
3. In C.R. No,1073 of 1995, the petitioner, who was the defendant in the case, has challenged the same judgment and decree of the Court of appeal, whereby, the respondent/plaintiff has been granted half share of the suit-land on the principle that the parties are equally entitled to pre-empt the sale.
4. The facts of C.R. No,2184 of 1995, are that Raja Waris filed a suit seeking declaration that the vendee has orally sold 7 Marlas of the land out of the 19 Kanals and 17 Marlas and thus, he be declared to be the owner of the same. This suit was dismissed by the trial Court.
5. In C.R. No,1929 of 1995, the facts are, that the respondent filed a suit for possession of 7 Marlas on the ground that it has been illegally encroached upon by the present petitioner. This suit of the respondent was allowed. The result remained unchanged in the appeal, filed by the petitioners.
6. Learned counsel for the petitioner in C.R. No,1929 of 1995, contends that in addition to be the co- sharer in the Khata, the petitioner's land was contiguous to the suit-land and water channel was also the common, resultantly, the petitioner had the better right and, therefore, was entitled to the grant of full decree for pre-emption in his favour. While, the learned counsel for the respondent in C.R. No,1073 of 1995, has argued that the findings of the learned Court below that the petitioner has been able to prove Talb-i-Ishhad, are absolutely based upon misreading of the evidence and thus, the suit was liable to be dismissed. It is further argued that under section 6(2) of the Punjab Pre- emption Act, 1991, the right of pre-emption, could only be exercised on account of "Zaroorat" and to avoid "Zarar". As in the present case, there is no averment in the plaint of "Zaroorat" and "Zarar" and no evidence has been led, resultantly, the suit was liable to be dismissed. It is stated that the judgment reported as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province Lahore (PLD 1994 SC 1), came into effect on 31-12-1993; as the decree in the present case, has been passed prior thereto, resultantly, the provisions of section 6(2), were duly applicable. In this behalf, he has relied upon the judgment reported as Mst. Bashiran Bibi v. Muhammad Kashif Khan and others (PLD 1995 Lah. 200).
7. I have heard the learned counsel for the parties and find, that the arguments of the learned counsel for the petitioner in C.R. No,1073 of 1995, are well-founded and squarely convered by the dictum of the Lahore High Court, reported in PLD 1995 Lah.
200. As the plaintiff has not averred the "Zaroorat" and avoidance of "Zarar", therefore, the suit was materially defective and the plaint was liable to be rejected. The argument of the learned counsel for the plaintiff that the respondent has not taken up this plea in the written statement and no issue in this behalf has been framed, suffice it to say that, for the rejection of the plaint, it is the Court, which has to see, if the plaint fulfils the requirement of law and is not hit by any provision thereof.
Moreover, the pleading and proof of "Zaroorat" and "Zarar" is a proposition of law and thus, can be agitated even before this Court, for the first time.
' In the light of above, C.R. No,1073 of 1995, is allowed and the judgment and decree of the Court of appeal is set aside with the result that as there is no decree of the appellate Court in favour of the petitioner in. C.R. No,2184 of 1995, therefore, the same stands dismissed. As regards the other two revision petitions, suffice it to say that on the one hand, the petitioner is pre-empting the sale and on the other hand, is claiming that vendor had sold 7 Marlas of the land. These were two contradictory pleas. Even otherwise, as per the findings of the Courts below, the petitioners in these revision petitions, have failed to prove the purchase of 7 Marlas of the land. No misreading and non-reading has been found. Resultantly, these petitions also stand dismissed. No order as to costs.