ATTAULLAH KHAN, J. --- Abdul Wali, plaintiff/petitioner filed a suit for possession through preemption in the Trial Court on the basis of superior rights of pre-emption in respect of suit land, fully detailed in the heading of plaint.
2. According to the plaint, one Atta Ullah sold the disputed property vide Mutation No. 181 on 21.12.1992. That the petitioner is co-sharer in the landed property and also got easement rights while the defendant has got no such qualifications. It is also alleged that defendant kept the purchase secret and immediately after getting the knowledge, the 'plaintiff declared his intention in jalsa-e- aam about pre-emption and thereafter notices were issued through registered cover. The suit was filed within time.
3. Defendants contested the suit by filing written statement which resulted into the following issues:---
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit of the plaintiff is time-barred?
(3) Whether the plaintiffs suit is liable to be dismissed due to non-payment of Court-fee?
(4) Whether the plaintiff has made the Talabs in accordance with Section 13 of N.W.F..P. Preemption Act. 1987?
(5) Whether the father of the defendant has purchased the property from one Atta Ullah Shah son of Ghulam Ahmad Shah vide Mutation No. 181, dated 21.12.1992 on a sale price of Rs.
72,000/-?
(6) What is the market value of the suit land?
(7) Whether the defendant has made any improvement over the suit land if so, what are its effect?
(8) Whether the plaintiff is entitled to the decree prayed for?
(9) Relief.
4. The plaintiff produced eight witnesses in support of his case while defendants examined three witnesses.
5. After hearing the arguments the Trial Judge decreed the suit in favour of plaintiff to the extent of half of the share vide judgment and decree dated 6.7.2002. The appeal was filed against the judgment and decree in the Appellate Court and after considering the record on file and hearing arguments of both the counsel for the parties, the learned Appellate Court accepted the appeal by setting aside the judgment and decree of the Trial Court and dismissed the suit of the plaintiff vide judgment and decree dated 12.2.2005.
6. The foremost and crucial question in this case is that as to whether the mention of date of time and place of making of Talb-i-Muwathibat in the plaint is necessary or not. During the course of discussing this issue, the learned Appellate Court has held that plaintiff has failed to produce the informer i.e., Patwari Halqa, who informed the plaintiff on 21.12.1992 about the sale transaction, because the plaintiff's version is that he was informed by the patwari halqa and immediately after getting the information, he made Talabs. The record discloses the patwari halqa appeared in this case as PW-2 but he has stated nothing about the contention of the plaintiff that he was informed by patwari halqa so evidence of patwari halqa, who allegedly informed the plaintiff about sale transaction, cannot help the plaintiff. According to law, the plaintiff, in pre-emption suit is required to produce in his favour two witnesses who 'testify that he made Talb-i-Muwathibat in time in their presence. It is alleged by the plaintiff in his statement as well as in the plaint that he was informed by Patwari and in whose presence he made Talb-i-Muwathibat. So on this count, the Talb-i- Muwathibat made by the plaintiff is not proved. Moreover, a look at the plaint would reveal that he has not mentioned the time and place of Talb-i-Muwathibat. Similarly, the plaintiff has failed to mention in his evidence as PW-5 the time and place of making Talb-i-Muwathibat. I may refer to 2009 P.S.C. 1289 wherein the Hon'ble Supreme Court of Pakistan has held that:--- "Learned counsel for the respondent is right in submitting that the law declared by this Court in the case of Pir Muhammad (ibid) was followed in the latest judgments of Muhammad lqbal and Bashiran Begum (ibid). In view whereof, it is by now the settled law that it would be mandatory for a; plaintiff in a suit for pre-emption to incorporate in the plaint the date, time and place of performance of Talb-i-Muwathibat nd date of issuing the notice of Talb-i-lshhad in terms of Section 13 of the Act, otherwise plaintiff's suit delayed to be dismissed. As the appellant failed to plead que making of Talb-e-Muwathibat in the plaint according to the parameters of law laid down by this Court in the cases of "Muhammad lqbal v. A.I Sher (2008 SCM R 1682), Bashiran Begum v. Nazar Hussain (PLD 2008 Supreme Court 559) and Pir Muhammad v. Faqir Muhammad'(PLD 2008 Supreme Court 302)", therefore, her suit deserved to be dismissed on this short ground. Both the Courts did not commit any illegality in dismissing appellant's suit. Learned counsel for the appellant has not been able to refer to anything on record which could persuade us to interfere in the concurrent findings arrived at both the learned Courts."
Similar principles have been laid down by apex Court of Pakistan in 2009 P.S.C. 1935. The above dictum of apex Court and other similar judgments have settled the matter once for all that the making of Talb-i-Muwathibat is an important step to be taken by the pre-emptor and it is necessary that as soon as the pre-emptor acquired knowledge of the sale. Of pre-empted property he should have made immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time to the dispensation. Performance of Talb-i- Muwathibat, in terms not 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 the Talb-i-Muwathibat. In short it is by now settled that non-mentioning of place, date and time of Talb-i-Muwathibat in terms of Section 13 of the Pre-emption Act is fatal for the maintainability of the suit for pre-emption.
7. In this case, the, requirement of Section 13 of the N.W.F.P. Pre-emption Act in respect of Talb-i- lshhad has not been fulfilled and the same has not been proved, therefore, else Appellate Court has correctly accepted the appeal and dismissed the suit of the petitioner. I have found no illegality, non or misreading of evidence or jurisdictional defect, therefore, the revision petition in hand being without force, stands dismissed, leaving the parties to bear their own costs. Civil revision .