' CH. NAEEM MASOOD, J.--- The civil revision is directed against the judgment and decree dated 20- 9-1994, whereby the suit filed by the petitioner/plaintiff for possession through pre-emption was dismissed by the learned trial Court and further concurred by the learned appellate Court vide its judgment and decree dated 24-5-1995.
2. Briefly the facts of the case are that the petitioner filed a suit for possession through pre-emption of property in dispute. It was contested by the respondent through filing written statement. On pleadings of the parties the following issues were framed:---
(i) Whether the plaintiff has got no cause of action? OPD
(ii) Whether the plaintiff is estopped by his word and conduct to bring the instant suit? OPD
(iii) Whether the suit is vexatious and the defendant is entitled to get special cost under section 35- A of C.P.C.? OPD
(iv) Whether the suit is undervalued for the purpose of court-fee and jurisdiction ? OPD
(v) What was the market sale price of suit-land at the time of its transfer? OP. Parties.
(vi) Whether the defendant incurred improvements charges over the suit-land if so to what extent?
OPD
(vii) Whether the plaintiff has fulfilled the requirements of Talbs in accordance with law of pre- emption? OPP
(viii) Whether the defendant purchased the suit property vide Mutation No,1461, dated 27-8-1993, in consideration of Rs,10,000/-? OPP
(ix) Whether the alienation of suit-land is a sale or Hiba? OP. Parties.
(x) Whether the plaintiff is entitled to get a decree as prayed for? OPP
(xi) Relief.
3. The parties led their respective evidence and on the basis of evidence, both the Courts below have decided the controversy against the petitioner/plaintiff.
4. As the question of Talbs is of cardinal importance and proof or otherwise of the same has a lot of bearing on the success or otherwise of the suit, therefore, I shall take up this matter first. It is pertinent to be noted that in case the Talbs are not proved, there is no necessity of going through the other evidence led by the parties and to decide the other issues.
5. It is a basic principle in the suit for possession through pre-emption that the burden to prove the Talbs is always on the plaintiff. In the present case the plaintiff has examined Nazeer Ahmed P.W.2 and Jan Muhammad P.W.3 in addition to his own statements as P.W.1. The plaintiff has stated in his cross-examination that he went to the defendant riding on two bicycles along with witnesses Usman, Jan Muhammad and Nazeer and he was seated on the back of the cycle when Usman was riding it. Jan Muhammad PW, on the other hand, has deposed that the plaintiff and witnesses went to the defendant on foot and they were not on bicycles. Now the first issue is Talb-i-Muwathibat.
The time date and place have not been specifically mentioned. Then comes Talb-i-Ishhad. It has not been proved that the written notices were dispatched. Neither in the plaint nor in the statement the time and the place stand mentioned about the knowledge of the sale.
6. I am fortified in my view by confirming myself to the judgment of the honourable apex Court reported as Fazal Din through legal heirs v. Muhammad Inayat through legal heirs 2007 SCM R 1. I consider it essential to reproduce the operative part of the judgment of the cited case, so as to clarify the entire law of Taibs, in a pre-emption suit. In the above case their lordships have observed as follows:--- "(12) Moreover, the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre-emption. The law as well as the fact is that the very right of pre-emption is not activated unless Talb-i-Muwathibat is preformed. It should not be dubbed as a mere technicality at times, it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of preemption. The latter might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality, this Court in Said Kamal Shah's case PLD 1986 SC 360 would never have gone to the extent of saying that I alb-i-Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provisions qua Talb-i- Muwathibat or Talb-iIshhad. It was on the basis of much verdict from this Court that tens of thousands of pre-emptors in the country were non-suited because of non-assertion and performance of Talb-i-Muwathibat though not required by the then prevailing pre-emption laws in the country. What we want to emphasize is that Talb-iMuwathibat should not be taken lightly and should not be considered as mere technicality. Technicalities are simple procedural matters and never have certain material rights, as it happens in the case of a right of pre-emption.
' It is further observed:--- "The date and time is important to be mentioned in the pleadings because therefrom the performance of Talb-i-Ishhad has to be computed so as to be within 15 days."
7 . In the present case the requirement of Talbs has not been fulfilled. What has been said about the Talbs is also negated by the evidence of the petitioner/plaintiff. There is no necessity of dilating upon the other issues and the remaining evidence in the absence of the legal Talbs.
9.(sic) In sequel thereof, the revision petition in hand stands dismissed, leaving the parties to bear their own costs.