' ABDUL SATTAR GORAYA, J.--- This appeal is directed against the judgment and decree dated 20- 2-2004 passed by the learned Additional District Judge, Bahawalpur and that of dated 23-1-2002 of the learned trial Judge by which the suit brought by the suitor-pre-emptor was decreed.
2. Case disclosed in the plaint was that Mst. Manzoor Bibi daughter of Dur Muhammad, widow of Faiz Muhammad, was owner of the suit-land, fully described in the head-note of the plaint who sold-out her entire property by means of registered instrument of sale dated 3-7-1995 for consideration of Rs,3,00,000 and possession in pursuance of the sale was also delivered. On gaining information of the afore-noted sale on 25-7-1995, the plaintiff respondent in some meeting in presence of Abdul Jabbar son of Abdul Ghafoor, Reheem-ud-Din son of Sardar Ahmad declared his intention to pre-empt the sale transaction. It was pleaded that the pre-emptor possesses the right of Shafi Khalit and Shafi Jar. It was also mentioned that they had a common source of irrigation whereas the respondent-defendant was stranger in that revenue estate. It is further pleaded that on the same date, the pre-emptor expressed a declaration to pre-empt the sale and the appellant was asked to transfer the land in his name after getting the sale price embodied in the deed but they being hesitant, it led to institution of suit on 15-8-1995. In the written statement, averments of the plaint were emphatically denied and it was pleaded that in fact, an amount of Rs,5,27,500 has been made to the vendor. It was further pleaded that on 21-12-1994, there was an agreement of sale between the vendee and the vendor. The suitor had knowledge of the registered deed on 3-7-1995 but he never made necessary Talb-e-Muwathibat within the limitation prescribed by law. The rights claimed by the plaintiff-respondent being. Shafi Khalit and Shafi Jar were vigorously denied and it was pleaded that the respondent had a better right of pre-emption.
The learned trial Judge vide his judgment and decree dated 23-1-2002, decided Issues Nos.1 and 2 in favour of the respondent and thus decreed the suit. Findings given by the Courts below in favour of the respondent were maintained in appeal brought by the appellants before the learned Additional District Judge, Bahawalpur on 2-2-2004. As far the objection for the appellant with regard to the Talbs, the learned lower appellate Court concluded the. Issue in a manner that plain reading of section 13 of the Pre-emption Act is indicative of the right of pre-emption and the necessary Talbs with regard to the time and place are necessarily required to be proved. Talb-i- Ishhad it was held that it was not in accordance with law and the learned lower appellate Court rejected the objection of the appellants.
3. Mr. Ijaz Ahmad Ansari, learned counsel for the appellants bitterly argued that it was mandatory to disclose the particulars and detail of day time and receiving information about sale and making of Talb-e-Muwathibat. He further argued that this is a case of wilful omission on the part of the suitor inasmuch as he did not mention the details of time and place of receiving any information and thus the necessary requirement was not fulfilled.
4. On the other hand, learned counsel for the respondent laid much emphasis that the only requirement of the law is that in order to succeed, the plaintiff must retain his preferential right at three stages, namely, at the date of sale, at the date of suit and at the date of decree and the respondent-plaintiff successfully proved these three stages in the case before the learned trial Judge. He has heavily relied upon Nawab Din and others v. Ismail through Legal Heirs PLD 1993 Lah.
408. Learned counsel argued that even in the absence of any detail furnished in the plaint, the appellants cannot be non-suited in view of the Full Bench judgment of the apex Court reported as Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCM R 314 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCM R 329.
5. I have lent ear to the arguments advanced by learned counsel for both the parties and with their able assistance perused the record.
6. Plain reading of the plaint would discernibly show that the time and the source of knowledge have not been mentioned. Averments of the plaint on its face value appear to have been drafted in routing and ex-facie couched in vague generalization. The requirement of the necessary Talbs has not been fulfilled. I am fortified in my view by Mian Pir Muhammad and another v. Faqir Muhammad through legal heirs and others PLD 2007 SC 302. The Bench consisting of five Honourable Judges set the controversy at rest forever. The judgments cited at the bar by the learned counsel for the respondent have been taken note of in the judgment referred (supra). The relevant paragraph of the judgment is reproduced hereunder for facility of reference.:--- "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-Muwathibat. With utmost respect it is observed that while expressing the above view this Court did not take into consideration in detail Me, 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 ktaken 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 plaint wherein the date, place and time of Talb-i-Muwathibat 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 pre-emption suit."
7. Learned counsel for the respondent also came out with the feeble plea that at the time when the impugned judgment and decree was passed, view of the Courts was different to the one, now pronounced by the Honourable Supreme Court. Therefore, the judgment rendered in Mian Pir Muhammad's case cannot be made applicable with retrospective affect. The argument has no force. Undoubtedly, I am sitting in second appeal and according to the reiteration in Muhammad Ayub v. Muhammad Yaqoob PLD 1975 Lah. 445, entire case becomes reopen and the Court sitting in appeal by virtue of application of section 107 of the Code of Civil Procedure would presume to have been sitting in suit and the latest view of the Honourable Supreme Court and the curative change in law or policy can be taken note of and the same can be made basis of the decision. The proposition of law is too settled to admit any debate that the judgments later in date and time pronounced B by the apex Court shall be given due weight as compared to the one in which the apex Court already took a different view. Therefore, respectfully following the dictum laid down in the judgment of the apex Court, mentioned supra, reaffirmed in Mst. Bashiran Begum v. Nawaz Hussain and another PLD 2008 SC 559, the impugned judgments and decrees of both the Courts below cannot be sustained. Consequently the impugned judgments and decrees of both the Courts dated 20-2-2004 and 23-1-2002 are set aside. Suit for pre-empting the sale brought by the respondent-suitor is dismissed. However, parties are left to bear their own costs.