'ATTAULLAH KHAN, J.---A suit for possession through pre-emption was filed by the Niamatullah, etc., through their guardian against the respondent Aminuddin on the grounds mentioned in the body of the plaint.
2, The suit was contested by the defendant by fling his written statement which gave rise In the following issues,
(1) Whethef the plaintiffs have got a cause of action and locus standi? OPP
(2) Whether the suit of the plaintiffs is maintainable in its present form?
(3) Whether the plaintiffs are estopped by their own words and conduct to bring the instant suit?
(4) Whether the plaintiffs have superior right of pre-emption?
(5) Whether the plaintiffs have established the talbs under section 13 of the N.W.F.P. Preemption Act, 1987 in accordance with law?
(6) Whether the defendant has sold out the suit land to one Zawar Hussain in pu rsuance of recognizing his Before superior of pre-emption. Filing of the instant suit?
(7) Whether the sale consideration of Rs, One lac as shown in the mutation is fixed in good faith and actually paid?
(8) Market value of the suit property?
(9) Relief.
3. After recording evidence the trial Court, vide judgment and decree dated 29-4-2003 decreed the suit in favour of the petitioners/plaintiffs against the defendant/respondent.
4. The above mentioned decision was challenged in appeal before the learned Additional District Judge, D.I. Khan who, vide judgment and decree dated 5-4-2004 accepted the appeal, set aside the impugned judgment and decree dated 29-4-2003 and the suit of the petitioners/plaintiffs dismissed.
5. Now the petitioners/plaintiffs have challenged the judgment and decree dated 5-4-2004 passed by learned Additional District Judge, D.I. Khan through instant revision petition under section 115, C.P.C.
6. Learned counsel for both the parties heard and record on file perused. In the light of which my discussion is as under.
7. The main arguments taken by learned counsel for the petitioner is that Talbs have been performed in accordance with the law and the learned appellate Court has wrongly accepted the appeal by holding that talbs were not performed in line with provision of Pre-emption Act 1987.
8. On the other hand, learned counsel for the respondent opposed the contention petitioner counsel. Counsel for raised by the petitioner counsel the respondent's stand IS that the plaintiff that. Has failed to perform the Talb-e-Ishahd and Talb-e-Muwathibat by not giving the exact date in his evidence.
9. I have perused the relevant portion of statement of the plaintiffs, who appeared in the trial Court as P.W.S. It is to be noted that P,W.5 is the father of the plaintiffs, who are 'ninon, He deposed in the trial Court that he came to !Mow about 1-1/2, 13/4 years ago. The father of the pjaiptiffs has failed to disclose the exact date of knowledge. He has given up approximate period.
10. It is necessary for the pre-emptor to prove the exact date of making Talb-eMuwathibat. Mere giving approximate period would render the Talb-e-Ishhad effective. In case of pre-emptor fails to disclose a definite date of Talb-e-Ishhad, the suit would be liable to be dismissed. In this case the plaintiffs have given a date in the plaint but in evidence he has failed to, prove it. In support of this date, the pre- emptor (attorney of the minors) has mentioned an approximate period. So he has failed to perform this obligation. He has mentioned a general term of period in which he acquired the knowledge of sale.
11. Another fact to be taken note of is that the demand has not been made properly. The plaintiffs are represented by their father, namely, Attaullah as guardian. In his evidence as P.W.5 he deposed that he came to know about the same on 10-4-1998 through Muhammad Ilyas in the shop of Haji Muhammad Idrees. The notice of Talb-e-Ishhad disclosers that guardian of the petitioners (plaintiffs) has made Talb-eIshhad and has omitted to use the words "on behalf of plaintiffs being guardian. {{PAGE CUT}}"
It is also material defect which makes the talbs inadmissible .. Moreover Muhammad Ilyas was the person who informed the plaintiff about the sale in the shop of Haji. Muhammad Idrees.
Muhammad Ilyas has been produced by the plaintiffs. This Muhammad Ilyas has deposed in his evidence that 2/3 other persons were also present in the shop. Plaintiffs have failed to produce these persons. The essential ingredient of the Talbs is that it must be pronounced and performed in a Majlis immediately after receiving information regarding the sale transaction. So existence of Majlis is most material fact concerning the requiremnt of Talib-e-Muwathibat. The essential component of Majlis is its members who are supposed to be witnessed of Talb-e-Muwathibat and in this way the members of the Majlis are important witnesses who are to be produced in the Court in support of Talb-e-Mauthibat. As stated above beside Muhammad Ilyas no body present in the Majlis was produced by the plaintiffs. The information was conveyed to the plaintiffs by Muhammad Ilyas in the shop of Haji Muhammad Idrees but he too has not been produced. The above discussion leads me to draw a conclusion similar to that of appellate Court and hold that the talbs are not in accordance with the law and are defective. So in this way that the demand is also ineffective.
12. I have come across no illegality or gross miscarriage of justice in the impugned judgment and decree, therefore, hold that there is no force in the revision petition, which is hereby dismissed leaving the parties to bear their own cost.