1. ' ARSHAD NOOR KHAN, J.---This revision application under section 115, C.P.C. Has been filed by the applicant challenging therein the judgment and decree dated 17-12-2008 passed by the learned IIIrd additional District Judge, Sukkur in Civil Appeal No,116 of 2004 Gul Muhammad v. Sono Khan and others whereby the judgment dated 28-10-2004 and decree dated 2-11-2004 passed by the learned IInd Senior Civil Judge in Civil Suit No,13 of 1998 (Old No,33 of 1997), thereby dismissing the suit filed by the applicant for pressing his right of preemption, has been maintained.
2. ' The facts leading to the present revision, in brief, are that the applicant filed suit for pre-emption being Shafi-eKhalit, Shafi-e-Jar and Shafi-e-Sharik to pre-empt the property purchased by the respondent No,1 stating therein that he owned survey No,635 Deh/town Pano Akil by way of inheritance. He claimed to be bona fide owner/Khatedar in the said survey number to the extent of 3 Paisa share by way of purchase through registered sale-deeds dated 21-9-1991, 7-10-1991 and 18- 2-1992 respectively. It is further stated in the plaint that the respondent No,1 managed to transfer the ownership of 3769 sq. Ft. From the said land for the consideration/exchange of residential plot and construction thereon duly mutated in city survey record on 28-5-1992. It is further stated in the plaint that the applicant came to know about the said transaction when he received summons in F.C. Suit filed by the respondent No,1 against him at that time applicant asserted his right of pre- emption and declared his intention to purchase the said property being Shafi-e-Sharik, Shafi-e- Khalit and Shafi-e-Jar and he made first demand Talbe-Muwathibat. It is further stated in the plaint that the applicant made second demand Talb-e-Ishhad in presence of witnesses, namely Noor Muhammad, Shammsuddin and Mir Muhammad Arain but the respondent No,1 did not accept his preferential right; therefore, he filed suit for pre-emption before learned IInd Senior Civil Judge, Sukkur. Respondent No,1 was served with the summons who appeared and denied the preferential right of the applicant by way of filing the written statement.
3. ' After pleading of the parties, the trial Court framed the following issues:--
(i) Whether the suit is maintainable according to law?
(ii) Whether the suit is within time?
(iii) Whether the plaintiff is co-sharer in the suit-property viz. Survey No,16 of Deh Pano Akil (at present City Survey No,635) and he got a preferential right of pre-emption over the suit-property?
(iv) Whether the required Talbs have been made by the plaintiff?
(v) Whether the plaintiff is entitled to the judgment and decree?
4. ' After framing issues, the applicant led his evidence as well as evidence of his witnesses and closed his side but the respondent No,1 did not lead his evidence. Learned Senior Civil Judge, Sukkur, after going through the evidence available on record, dismissed the suit filed by the applicant. Being highly aggrieved and dissatisfied with the judgment and decree passed by the trial Court, the applicant filed appeal before the learned District Judge, Sukkur, which was entrusted to the learned IIIrd Additional District Judge, Sukkur, being Civil Appeal No,116 of 2004 which was heard and dismissed by the learned IIIrd Additional District Judge, Sukkur, by judgment and decree impugned herein, hence the present revision application.
5. ' I have heard the applicant in person. He vehemently contended that he being Shafi-e-Sharik has preferential right to purchase the property from the respondent No,1 who was the stranger and he was unaware about the fate of property in dispute allegedly gifted out to respondent No,1 and came to know about the said transfer of the property on 21-4-1993 and on acquiring such knowledge in F.C. Suit filed by respondent No,1 against him, he asserted the preferential right and made Talb-e-Muwathibat with the respondent No,1 which was followed by Taib-e-Ishhad in presence of witnesses namely Mir Muhammad and Shamsuddin who both have supported his demand but both the learned lower Courts failed to appreciate the evidence in its true perspective specially when the respondent No,1 did not contest the suit as such the judgment and decree passed by both the learned lower Courts is the result of misreading of evidence on record which resulted in grave miscarriage of justice and the learned appellate Court while dismissing the appeal did not exercise the jurisdiction vested in him. According to him Article 120 of the Limitation Act applies under the circumstances of the case and the Courts below wrongly non-suited him by not relying on Article 120 of the Limitation Act. According to him, issues have not been decided separately by the learned appellate Court and as such on that score also the judgment of the appellate Court is bad in law and prayed to set aside the judgment and decree passed by both the Courts below.
6. ' I have considered the arguments advanced by the applicant and have gone through the material available on record.
7. ' Admittedly for the purpose of Province of Sindh no Pre-emption Act has been promulgated and the pre-emption suit is being filed and regulated under section 230 of the Muhammadan Law (by Mu11a) as such the provisions of any other Act prevailing in other provinces could not be considered in the present case as has been discussed by the learned appellate Court.
8. ' The claim of the applicant is that he came to know about the transfer of the property in favour of respondent No,1 on 21-4-1993 when he received the summons of FC suit filed by the respondent No,1 and at the time when he received the summons, he asserted his preferential right to purchase the property in question in presence of the witnesses namely Noor Muhammad, Mir Muhammad and Shamsuddin. Applicant in paras. 4 and 5 of his suit has asserted about his knowledge regarding transfer of the property in question and his preferential right to purchase the property in question.
9. Paras 4 and 5 are therefore, reproduced herein below in extenso for the sake of convenience:-- "4. That plaintiff come to know the transaction when he received the summons of FCS filed by the defendant No,3 against the plaintiff and others. At the suit property in the presence of defendant No,3, the plaintiff immediately declared his intention to assert the right of Hague Shufa being Shafi- e-Sharik, Shafi-e-Khalit and Shafi-e-Jar hence made first demand Talb-eMuwathibat being owner of Khata.
5. That the plaintiff made second demand Talb-e-Ishhad with invocation of witnesses namely Noor Muhammad, Shamsuddin, Mir Muhammad Arain to the defendant No,3 at the site subsequently in the same meeting with reference to the Talb-eMuwathibat on which defendant No,3 refused to sell the same though plaintiff was ready to purchase the same and make payment also he allowed to file the suit in white and black hence this suit,"
10. ' The claim of the applicant is completely silent to show about the date, time and place where he firstly asserted his preferential right of purchase of the property in question and date, time and place about his making Talb-e-Ishhad in presence of the witnesses nor it has been stated by him that what consideration of the property in question he offered to the respondent No,1 for purchase of the property in question. The pleadings of the applicant are therefore, completely silent regarding his actual knowledge about disposal of the property in question as well as his making requisite demands.
11. ' In his evidence before the learned trial Court applicant Gul Muhammad stated that he is the Khatedar of agricultural Survey No, 16, city survey No . 635 deh/town Pano Akil. It is further stated by him that the respondent No,1 obtained gift in respect of property by way of registration of said deed and the same was mutated in survey record on 28-5-1992. It is further stated by him that he came to know about exchange of the property when he received summons of FC Suit No,63 of 1993 filed by the respondent No,1 against him and others. On his enquiry, the respondent No,1 disclosed him that he has acquired the land from survey No,16, city survey No,635 admeasuring 3769 sq. Ft. Of deh/town Pano Akil in exchange of gift deed. He immediately made demand of Talb-e-Muwathibat and disclosed that he will file a suit for pre-emption against him being owner of Khata in question.
12. He also disclosed him that he is Shafi-e-Sharik and Shafi-e-Jar. He further stated in his statement before the learned trial Court that he made second Talb in presence of Noor Muhammad, Mir Muhammad, Shamsuddin and others who were available at the time of calling them to be the witnesses of his second demand and he made Talb-e-Ishhad in their presence. The evidence of the applicant as discussed above is completely silent about the date, time and place regarding his making first demand of Talbe-Muwathibat and also the same is completely silent about his making second demand viz. Talb-e-Ishhad. Even from his afore-stated evidence it is crystal clear that at the time when he made second demand, he had not referred his first demand. The applicant has pleaded his knowledge from the date when he allegedly had received notice in FC Suit No,63 of 1993, but as B discussed above, his evidence is completely silent to show that when he had received notice in FC Suit No,63 of 1993. Even in his pleadings, as discussed above, this aspect of the matter has not been enlightened. The applicant has therefore tried to conceal the material date of his knowledge about his becoming aware about the transfer of the property in question. A perusal of his testimony also shows that he has also not produced the summons, which he had received in FC Suit No,163 of 1993 so as to calculate his knowledge for the purpose of limitation, about the transfer of property in favour of respondent No,l.
13. ' In his evidence before the trial Court, P.W. Shamsuddin has stated that on 21-4-1993 he was standing in Survey No,16 situated in deh Pano Akil in the plot of Gul Muhammad along with Noor Muhammad, Gul Muhammad and Shamsuddin. At that time one Sardar Bux came along with bailiff of the Court of Ghotki and stated that plot towards western side of Gul Muhammad was purchased by him through Hiba-Bil-Aiwaz through Sono and Ahsan and on hearing of the said assertion, he immediately stated that he is Shafi-eSharik, Shafi-e-Khalit and Shafi-e-Jar of the property and also co-sharer in the said survey number so he wants to purchase the same at the market rate of Rs,4000 per Ghunta.
14. ' A perusal of testimony of witness Shamsuddin shows that he has not supported the requisite demands as deposed by the applicant in his evidence before the learned trial Court. P.W.
15. Shamsuddin deposed about both Talb-e-Ishhad and Talb-e-Muwathibat at the very same time of making first demand whereas the applicant has not stated that he made both the demands at the very same time when he became aware about transfer of the property in favour of respondent No,1 when the notice of FC Suit No,63 of 1993 was served on him. The Talbs made by him in presence of P.W. Shamsuddin is therefore, not supported by him.
16. ' The evidence of second witness namely Mir Muhammad is also verbatim same as that of evidence of P.W. Shamsuddin, which also did not support the demands made by the applicant, in the manner required under the law.
17. ' The suit based on preferential right of pre-emption is very technical in nature. It requires immediate and jumping demand when the fact of transfer of the property becomes known to the plaintiff. He is required to make such jumping demand and C has to rush to the purchaser of the property without loss of time and he has to make Talb-e-Muwathibat and within further shortest possible time he is also required to make second demand viz. Talb-e-Ishhad and for the said purpose he is required to make such demand in presence of the witnesses and he is further required to refer his earlier demand viz. Talb-e-Muwathibat as well as the consideration which he offered to the purchaser and, in case, if the c said demands have not been supported or corroborated by the witnesses, the preferential right to pre-empt the said property spoils and comes to an end. For the said purpose if any authority is needed, the reference may be had to a case of Monajal Huq v. Shafiullah repoited in PLD 1964 Dacca 640 wherein the observation has been made that Talb-e-Muwathibat must be made as soon as the fact of the sale is D known to plaintiff. The right to pre-empt is lost if there is any delay in claiming it. In the case of Muhammad Lokman Mondal v. Amir Ali Mondal reported in PLD 1969 Dacca 64 wherein similar observation has been made with further addition that at the time of making second demand, the preemptor is required to refer the first demand also. The case of Muhammad Lokman (supra) has been followed by this Court in the case of Muhammad Ibrahim v. Taj Muhammad reported in 1985 CLC 3000 wherein the similar observation regarding making Talb-e-Ishhad thereby referring Talb-e- Muwathibat was held obligatory by this Court; therefore, the case of Muhammad Ibrahim, supra is also going against the applicant. In the case of Sundri Bai v. Ghulam Hussain reported in 1982 CLC 2441, this Court while adverting to the same proposition involved in the case in hand was pleased to observe that the demands must be made as soon as possible and even a delay of 2 1/2 hour in that case E was observed to be fatal to the case of preemptor. In the case discussed above, it has, therefore, been constantly observed by this Court that the Talb-e-Ishhad and Talb-e-Muwathibat must be made as soon as possible and delay in making such demand F spoils the case of pre- emptor. In the case of Akbar Ali Khan v. Mukamil Shah reported in 2005 SCM R 431, Honourable Supreme Court while dealing with the same proposition was pleased to observe that Talb-e- Muwathibat is necessary to be mentioned in the pleadings and the said Talab puts a limitation on the prospective of a pre-emptor that he must express his intention to pre-empt immediately and in case of involvement of limitation of any kind, he has to specify the date and time of the commencement of the limitation or his knowledge so that the limitation be computed accordingly and where in a suit the details of making Talb-e-Muwathibat has not been given or were suppressed in the plaint; the pre-emptor would be deemed to have failed to prove the performance of said Talab. The dictum laid down by the Honourable Supreme Court in the case of Akbar Ali, supra is also fully applicable for the reason that the applicant in his plaint, as discussed above, has not disclosed the time, place and date of his making the demands, as well as the consideration of the said property offered to the respondent No, 1.
18. ' For all the afore-stated reasons and circumstances, I find that the judgment and decree passed by the learned trial Court as well as learned appellate Court do not suffer from any illegality, irregularity or infirmity so as to interfere in them. Revision Application has therefore, no merit and the same is hereby dismissed in limine, along with the listed applications.