' SHEIKH HAKIM ALI, J.--- Both the above noted civil appeals are being disposed of through this single judgment as in both these civil appeals, parties are the same and the common questions of law and facts are also similar in nature.
2. Facts forming arguments of the present appeals are that on 18-5-1989, Shafqat Mahmood and Tariq Mahmood, the present appellants had purchased lands measuring 43 Kanals, 12 Marlas, through Mutation No,936 and on the even date in another piece of land measuring 151 Kanals, 9 Marlas from a different vendor for consideration of Rs,75,000 through Mutation No,937, situated in Chak Essa, Tehsil and District Jhelum. Both these sales were pre-empted by two different parties.
Chaudhry Muhammad Razzaq filed suit for preemption on 24-4-1990 while Chaudhry Muhammad Din, the father of respondents Nos.1 and 2 instituted two suits of the pre-emptions on 5-5-1990 with regard to above noted sales. Chaudhry Muhammad Din, the rival pre-emptor expired during the pendency of suit and was succeeded by his sons, namely, Muhammad Yaqoob and Masood Ahmed pre-emptors-plaintiffs/respondents. All the suits were dismissed on 30-7-1990 holding that no law of pre-emption was in field at that time of sale, therefore, the suits could not proceed.
Against that judgment and decree, respondents preferred appeals before the learned District Judge, Jhelum, which were accepted on 31-10-1992 and the cases were remanded to the learned trial Court, where again all these suits were dismissed by the learned Civil Judge on 22-7-1993.
Once again preemptors filed appeals before the learned Additional District Judge, wherefrom the cases were remanded to frame the issue of limitation, as a preliminary issue, which was framed and decided by the learned Civil Judge against vendees on 2-5-1995. Revision filed against that finding upon issue of limitation, was dismissed by learned. District Judge on 7-11-1995. Thereafter, learned Civil Judge, who was seized of all these suits framed consolidated issues on 12-6-1995, upon which both the parties tried their luck by production of evidence. Learned Civil Judge, Jhelum after appraisal of evidence, dismissed the suit of Chaudhry Muhammad Razzaq while suits of Muhammad Yaqoob and others, respondents were decreed on 23-3-2001. Against the judgment dated 31-3-2001, Shafqat Mahmood and others, the present vendees/appellants filed appeals before learned Additional District Judge, which were dismissed on 19-11-2001, by maintaining the judgment and decree of the learned Civil Judge. The civil revisions were filed by the present appellants before the learned Lahore High Court, Rawalpindi Bench that was also dismissed on 15- 12-2003. Hence this appeal after grant of leave.
3. Learned counsel for the appellants submits that suit instituted by Chaudhry, Muhammad Din, the predecessor-in-interest of respondents could not be decreed because the suit when was filed, there was no statutory law of pre-emption in existence. First Ordinance, which had enacted the pre-emption law in Punjab was enforced on 29-3-1990 with the 'nomenclature of Punjab Pre- emption Ordinance No,V of 1990. As the suits of respondents were dismissed, therefore, respondents could avail of the opportunity granted by section 35 of the Punjab Pre-emption Ordinances as culminated into present statute by the name of Punjab Preemption Act, 1991, by filing an application under section 35 of the Act for resuscitation of those pre-emption suits within 60 days from the date of dismissal of the suits, which provision was not resorted to by the respondents. Further submits that respondents had failed to fulfil the requirements of section 35 of the Punjab Pre-emption Act, 1991 providing for performance of Talb-i-Ishhad in accordance with Muslim Law of Pre-emption, which was prevalent during the interregnum period. He has also objected to the validity of the impugned judgment on the ground that the date, time and place, were not mentioned in the plaint,therefore, both the suits were to be dismissed as these requirements were made applicable to the pending cases also. He has referred to Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302, to support his arguments.
4. Opposing the arguments, learned counsel for respondents submits that for performance of Talb- i-Ishhad, pre-emptors had sent notice to the vendees/defendants/appellants which was admitted by Karam Dad, general attorney of vendees (D. W.1) in his statement, therefore, both the suits filed by Muhammad Din were rightly decreed.
5. We have considered the arguments of both the learned counsel and have perused the record.
The learned Courts below have considered the transmission of registered notice to vendees as the compliance of Talb-i-Ishhad but the most important fact has been ignored by all the learned Courts below. The notice was admittedly issued on 2-5-1990 under section 13 of the Punjab Pre- emption Ordinance of 1990, which could be treated as compliance of section 13 of the Punjab Pre- emption Ordinance of 1990 but not the compliance of fulfilment of requirement of Talb-i-Ishhad as provided by subsection (2) of section 35 of the Punjab Pre-emption Act, 1991 as also provided by the preceding Ordinances, promulgated for bringing into existence the Statutory Law of Preemption, within the Province of Punjab. To dilate upon this proposition, it shall be interesting to note that during the interrgenum period, when the disputed sales were made, for the success of such pre-emption suits filed to pre-empt those sales, performance of Talb-i-Ishhad in the presence of two truthful witnesses was to be achieved in accordance with the Muslim Law of Pre- emption and not through dispatch of notice to vendees, under Statutory Law of Pre-emption, which was not in existence at the time of sale. The provision of the sending registered notice to the vendees, had come into life much after the sales were made. Therefore, it was not the compliance of provision of subsection (2) of section 35 of the Punjab Pre-emption Act of 1991.
6. The wordings of subsection (2) of section 35 of the Punjab Preemption Act, 1991 is worth consideration in this regard which is reproduced as follows for its use:--- "Section 35: (1) ...............................................................................................
(2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made `Talb-i-Ishhad' in the presence of two truthful witnesses."
The intent of the above noted provision is explicit, calling upon the pre-emptor to establish Talb-i- Ishhad, having been performed in the presence of two truthful witnesses and not through conveyance of registered notice. In other words, the reference was being made to the requirement of performance Talb-i-Ishhad, in consonance with the rules of 'Islamic Law of Pre-emption, which was holding the field in those days. It is an admitted fact that sale transactions were entered into between the parties when the Muslim Personal Law of the parties was prevalent and section 35 of the Punjab Pre-emption Act, 1991 or the preceding Ordinances had not taken birth. Accordingly, for those suits of pre-emption filed under Muslim Law of Pre-emption, the mode of performance of Talb-i-Ishhad as envisaged by Muhammadan Law of preemption was to be accomplished.
According to the evidence brought on the record and the judgments of the learned Courts below, it has not been held that respondents had performed Talb-i-Ishhad in accordance with the rules of Muslim Law of Pre-emption.
7. The case can be seen from another angle also. The pre-emptor who had instituted the suit against sales made during the period from 1986 to 1990, when the Statutory Law of pre-emption had not taken its life, could not take the benefit of provision of section 13 of the Punjab Pre-emption Act, 1991 because this section was to be applied to the sales made after the enforcement of Statutory Law of Pre-emption and not to the cases of above noted period, therefore, the sending of notice to vendees was not of any benefit for the pre-emptors.
8. If we assume that provision of section 13 of the Punjab Preemption Act was applicable to these cases of sales transacted during the interregnum period, then the provision of section 13 were to be applied in toto and with the same manner which had provided sending of notices not later than two weeks from the performance of Talb-i-Muwasibat. In such cases if the above provision of section 13 is to be applied, then the judgment of this Court reported in Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302 would be fully attracted to the present case, which had required the mentioning of date, time and place in the plaint, when Talb-i-Muwasibat was performed. As the suits had lacked from these particulars and details as envisaged above, therefore, suits were not maintainable and decrees could not be passed.
9. The result of the above discussion is that plaintiffs/pre-emptors/ respondents had failed to comply with the provision of subsection (2) of section 35 of the Punjab Pre-emption Act, 1991, which had required the pre-emptor to establish the performance of Talb-i-Ishhad in the presence of two truthful witnesses in accordance with the Muslim Law of Preemption.
10. Accordingly, we allow these appeals and set aside the judgments and decrees of the learned trial Court as upheld by the learned Additional District Judge and the Lahore High Court, Rawalpindi Bench and dismiss both the suits of the pre-emptors/respondents, with no order as to costs.