IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This appeal has been filed against the judgment dated 8-10-2003 of the High Court whereby revision filed by the respondent against the judgment of the Additional District Judge dated 12-2-1998 has been accepted as a result whereof the judgment of Civil Judge, Attock dated 11-1-1997 has been restored as a consequence whereof their suit for pre- emption also stood restored.
2. It is an admitted fact that on 29th December, 1992 petitioner purchased agricultural land measuring 10-K situated in Mouza Baryal, District Attock against consideration of Rs,4,10,000 from.
Muhammad Akbar and Khushnood son of Noor Elahi. The respondents Mst. Zakia, Mst. Dilshad and Mst. Tahira Naz statedly performed Talb-e-Muwathibat to enforce the right of their pre-emption through their attorney Malik Ajaib Khan and after seven days issued a notice dated 8-2-1993, having signatures of two persons namely Muhammad Iqbal and Sajid Mehmood. Thereafter, the suit was filed by them for possession through right of pre-emption on 28-3-1993. It was vehemently contested by vendor/ appellant inter alia on the ground that Talb-e-Muwathibat has not been proved. Similarly the admissibility or otherwise of notice, sent by them to perform Talb-e-Ishhad was also objected to.
3. Learned trial Court, settled the issues arising out of the pleadings of the parties, including Issue No,4, which is reproduced herein blow:-- ' If above issue No,4 is proved what was actual consideration amount paid by the vendee to the vendor or what was the market value at the time of sale transaction of the disputed land.
4. It may be noted that Mst. Zakia respondent No,1 was examined through local commissioner appointed by the Court on 12th June, 1996 and her statement was treated to be as P.W.5. In rebuttal appellant got herself examined. Learned trial Court decreed the suit on 11-1-1997. Appellant preferred appeal which came on the file of Additional District Judge, who accepted the same on 12th February, 1998, whereby the judgment/decree of the trial Court was set aside and suit was dismissed. The respondent preferred revision before the High Court on 1st April, 1998 which has been accepted on 8th October, 2003. As such instant direct appeal has been fied.
5. It is important to note that principle question for consideration before the High Court remained in respect of the performance of Talb-eMuwathibat. The claim put up on behalf of the pre-emptors was that on acquiring the knowledge about the sale of the property, they expressed their intention immediately to claim pre-emption, as such they performed Talb-e-Muwathibat. Learned Additional District Judge, in its judgment dated 12-2-1998 had not accepted the contention but the High Court agreeing with the finding of the trial Court, accepted that Talb-eMuwathibat was performed according to law. Here the question is whether the Talb-e-Muwathibat was performed indicating the place, time and date for performing the Talb-e-Muwathibat.
6. Learned counsel for the appellant vehemently contended that no such assertion was made in pleadings. To substantiate his plea he has read relevant para. From the plaint dated 28-3-1993.
7. On the other hand, learned counsel for the respondents/ preemptors stated that although in the pleadings the date, place and time of performance of Talb-e-Muwathibat is not mentioned but this fact got clarified through statement of P.W.4 Ajaib Khan who appeared as their attorney. In this behalf it may be noted that by the time it is well-settled that the particulars regarding the place, time and date of the performance of Talb-e-Muwathibat are required to be mentioned in the pleadings with the object of such observation in the judgment that in order to determine the question of limitation it is necessary to know exact date and time when Talb-e-Muwathibat was performed and it is also necessary to perform Talb-e-Muwathibat because according to law after performing Talb-e-Muwathibat within 14 days notice of Talb-e-Ishhad has to be issued. Admittedly in the instant case no such details were mentioned in the pleadings, therefore, following the law on the subject reported in different cases including Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315, Muhammad Siddique v. Muhammad Sharif 2005 SCM R 1231, Akbar Ali Khan v.
Mukammal Shah and others 2005 SCM R 431, Atiqur Reham and others through their real father v.
Muhammad Amin PLD 2006 SC 309 arid a recent judgment in C.P. 822 of 2006 dated 20th September, 2006 pronounced by the Bench, of which one of us (Iftikhar Muhammad Chaudhry, Chief Justice) is a member, we are of the opinion that learned Additional District Judge had rightly directed for dismissal of the suit filed by the respondent/preemptor.
8. It is to be noted that High Court, while making interference in the judgment of the appellate Court in fact had not discussed the judgments which have been referred to hereinbefore. Therefore, we are of the opinion that on account of this reason, the impugned judgment admits interference by this Court and being not sustainable is liable to be set aside, therefore, appeal is allowed.
9. Thus, judgment of the High Court is set aside and the judgment of the appellate Court dated 12- 2-1998 is restored. Parties are to bear their own costs.