' IJAZ-UL-HASSAN KHAN, J.--- Leave to appeal is sought against the judgment, dated 5-5-2002 of learned Peshawar High Court, D.I. Khan Bench, whereby Civil Revision No,3 of 2002 filed by petitioner Khadim Hussain was dismissed, upholding concurrent judgments and decrees dated 6-5-1999 and 17-11-2001 recorded by learned Senior Civil Judge and learned Additional District Judge, Dera Ismail Khan respectively.
2. Briefly narrated facts of the case are, that petitioner/plaintiff filed a suit in the Court of Senior Civil Judge, Dera Ismail Khan against Ghulam Eissa and others, respondents/defendants, alleging that suit property measuring 42 Kanals, 10 Marlas was purchased by respondents/defendants through Mutation No,2387 attested on 20-9-1989 for a sum of Rs,21,500 and an inflated amount of Rs,42,500 was entered as a sale price in the mutation in order to defeat the superior right of pre-emption of petitioner/plaintiff. The suit was contested and following issues were framed by the trial Court for disposal of the matter:---
(1) Whether the pre-emptor/rival pre-emptor has a cause of action?
(2) Whether the rival pre-emptors have got superior right of preemption?
(3) Whether the pre-emptor/rival pre-emptor have failed to make demand of Talbs etc., if so, its effect?
(4) Whether the suit is partial?
(5) Whether the suit is incompetent in its present form?
(6) Whether the pre-emptor/rival pre-emptor are estopped to sue?
(7) Whether the defendants have made any improvements, if so, to what extent and with what effect?
(8) Whether the suit of the plaintiff is liable to dismissal because his another suit has been dismissed, if so, its effect?
(9) Whether the sum of Rs,42,500 has been fixed in good faith and paid actually?
(10) Market value?
(11) Relief.
' On the basis of the pleadings of the parties and the evidence adduced during the trial, learned Senior Civil Judge, D.I. Khan, vide judgment and decree, dated 6-5-1999, dismissed the suit.
Thereagainst appeal and civil revision preferred by the petitioner were also dismissed by learned Additional District Judge, D.I. Khan and learned High Court, respectively as stated and mentioned above.
3. Mr. Riaz Ahmed Khan, Advocate, seeking leave of this Court bitterly criticized the impugned judgment and attempted to argue that learned High Court has not appreciated the evidence in its true perspective and has proceeded on wrong premises while upholding the concurrent findings recorded by learned trial Court and maintained by learned Appellate Court and submitted that petitioner having the knowledge of suit transaction did "Talb-e-Muwathibat" and also issued notice under "Talb-e-Ishhad" asking the respondents to transfer the suit-land in his name against Rs,8,500 which they refused to do and that petitioner, being co-owner in the suit-land possessed superior right of pre-emption qua respondents who were bereft of this qualification.
4. Scrutiny of the evidence reveals that petitioner could not state the name of the informer and date, time and place of "Talb-eMuwathibat" in the notice "Talb-e-Ishhad" and denial of one of the witnesses, to be present at the time of "Talb-e-Ishhad" and other several defects, which have been referred in the impugned judgment by learned High Court. Further, the name of informer i,e, Ghulam Qasim was disclosed for the first time on 12-3-1994 during examination. The disclosure of the name of the informer after five years of the impugned transaction attracts the possibility of afterthought. Even in the statement recorded after five years of the transaction in 1994, after sufficient development in the law on the subject, petitioner could not disclose the place and time when the information was conveyed to him and the assembly in which "Talb-e-Muwathibat" was made. In this regard reference can be made to the judgment of this Court titled Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs, and others PLD 2007 SC 302, wherein it was observed:--- "that great emphasis and importance is to be given to this word in making of Talb-i-Muwathibat and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre- emption without the slightest loss of time' According to the dispensation which has been reproduced hereinabove after performing Talb-i-Muwathibat, in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i,e, making of Talb-i-Ishhad as soon as possible after making Talb-i-Muwathibat but not later that two weeks from the date of knowledge of performing Talb-iMuwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i,e, 14 days under subsection (3) of section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Mawathibat then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talbi-Ishhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit. It may be argued that as the law has not specified about the timing then how it would be necessary to declare that the mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of section 13 of the Act. This Court in the case of Rana Muhammad Tufail v. Munir Ahmed and another PLD 2001 SC 13, declined to grant leave to appeal maintaining the judgment of the learned High Court as there was four hours delay in making the Talb-i-Muwathibat from the time of receiving the knowledge of the sale. In the case of Mst. Sundri Bai v. Ghulam Hussain 1983 CC 2441 High Court of Sindh, held the delay of 1-1/2 hour in making Talb-iMuwathibat to be fatal to the scheme of Shufa when the preemptor was residing on the first floor while the purchaser /respondent was residing on the ground floor of the same building. In another case of Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others (C.A. 1618 of 2003) this view was endorsed.
(5) Now we would consider the two judgments pronounced by this Court by larger Benches of equal strength in the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCM R 329) decided on 27-10-1999 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCM R 314 decided on 15-11-1999, wherein the consensus was that in view of the law of pleadings, it is not necessary to give the details including the date, place and time of performance of Talb-i-Muwathibae. With utmost respect it is observed that while expressing the above view this Court did not take into consideration in detail the, importance and implication of the word immediate as has been provided in Explanation I to section 13 of Act 1991 otherwise there was every possibility of arriving at the view which we are intending to take in this case. However, we agree and endorse the view taken in both the judgments that there is no necessity of mentioning the name of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order VI, rule 5, C.P.C. As evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the Court for the redressal of grievance. Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977, wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of `Talb-iMuwathibat'. Therefore, we endorse the view taken in the judgments and approve that a pliant wherein the date, place and time of `Talb-i-Muwathibae and date of issuing the notice of performance of `Talb-i-Ishhad' in terms of section 13 of the Act is not provided it would be fatal for the preemption suit."
5. In the circumstances, learned High. Court has dismissed the revision of petitioner assigning sound and cogent reasons and upheld the findings of fact recorded by learned trial Court and maintained by learned Appellate Court with detailed reasons. No infirmity legal or factual has been pointed out in the impugned judgments and decrees calling interference by this Court. Resultantly, finding this petition without substance, the same is dismissed and .
Petition dism ssed.