' CH. NAEEM MASOOD, J.---Learned counsel for the petitioners has not put up appearance, however, the instant case is also being decided on merits.
2. The present civil revision is directed against the judgment and decree dated 15-2-1994, passed by the learned Civil Judge, Lodhran and further concurred by the judgment and decree dated 23- 10-2004, passed by the learned District Judge, Lodhran.
3. Brief facts, submitted in chronological order are that the petitioners filed a suit for possession through preemption of the property in dispute, on the basis of being a joint shareholder of the khata. The respondents/defendants contested the suit. On the pleadings of the parties the following issues were framed:--
(1) Whether the plaintiffs have got no cause of action? OPD
(2) Whether the plaintiffs are estopped by their own-words and conduct to bring the instant suit?
OPD
(3) Whether the suit is not maintainable? OPD
(4) Whether the description of the suit land is improper, if so its effect? OPD
(5) Whether the suit is based on mala fides and the defendants are entitled to special costs? OPD
(6) Whether the defendants, in case the suit is decreed are entitled to recover, on the basis of improvements allegedly made by them? OPD
(7) Whether the sale price of the suit land was fixed at Rs,3,00,000 in good faith and actually paid?
OPD
(8) If issue No,7 is not proved in affirmative then what was the market value of the suit land at the time of the sale? OPP
(9) Whether the suit is within time? OPP
(10) Whether the plaintiff made `Talbs' in accordance with law? OPP
(11) Whether the plaintiffs have got a right to pre-empt the sale? OPP
(12) Whether the plaintiffs are entitled to decree for possession through pre-emption of the suit land as prayed for? OPP
(13) Whether the suit is liable to be dismissed due to non-deposit of 1/3rd according to the order dated 30-6-1991, if so its effect? OPD12
(14) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction?
OPD12
(15) Relief.
4. The parties led their respective evidence. The issue No,10 regarding the Talbs being of a pivotal nature, the learned trial Court gave it prime importance and came to the conclusion that the Talbs have not been made in accordance with law and vide its judgment and decree dated 15-2-1994 dismissed the suit. The petitioners filed an appeal before the learned lower appellate Court and took up the ground that as there is no post office in the Mauza of the petitioners, therefore, it was not considered essential to send a notice because according to the petitioner the Sharai conditions of Talb-i-Muwathibat and Talb-i-Ishhad could be met through the evidence of the witnesses and that the witnesses had fulfilled the requirements of Talbs in their statements before the learned trial Courts and, therefore, it was asserted that the learned trial Court had failed to consider the statements. The learned appellate Court below vide its judgment and decree dated 23-10-1994 dismissed the appeal by observing that the requirements of Talb-i-Muwathibat and Talb-i-Ishhad have not been fulfilled.
5. The petitioners have taken up this sole ground in the grounds of the revision petition and have submitted that it was not essential that Talb-i-Muwathibat and Talb-iIshhad should be made separately. It is asserted that two Talbs could be made at one time, Further the petitioners in their petition have vehemently addressed on the same issue and have contended that the requirements of Talb-i-Muwathibat and Talb-i-Ishhad were fulfilled at one time and the legal requirements were thus fulfilled, as proved in the statements of the P.Ws.
6. The learned counsel for the respondents has supported the impugned judgments and decrees.
7. I have considered the arguments and have perused the record.
8. I find that in the pleadings as also the statements of the P.Ws, the requirement of Talb-i- Muwathibat and Talb-i-Ishhad A have not been fulfilled in accordance with law.
9. The completion of the requirement of the Talbs, being sheet anchor of offence for the petitioners and defence for the respondents/plaintiffs, is the moot point in the present case. It merits to be dilated upon fully for the appreciation of the entire case.
10. From the bare reading of the plaint and the evidence produced by the petitioners/plaintiffs, the irresistible conclusion is that the petitioners/plaintiffs miserably failed to establish the completion of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with the law laid down by the Honourable Supreme Court. It has repeatedly been held by the Honourable Apex Court that the date, time and place are to be set down in particularly in the plaint as well as the evidence, lack of which has been considered fatal to the preemption suit.
' In the present case the petitioners/plaintiffs have not been able to demonstrate regarding the particularly of date, time and place of the Talbs. What has been said in the pleadings and evidence is an evasive assertion, which can be considered as concocted story about the completion of Talbs. The Honourable Apex Court in various judgments has narrowed down the compass, in particularly, about the completion of Talbs. The pleadings and evidence of the petitioners is not at all in consonance with the dictum laid down by the Honourable apex Court.
10A. I am fortified in my view by confining myself to the judgment of the Honourable apex Court reported as 2007 SCM R 1 (Fazal Din through L.Rs, v. Muhammad Inayat through L.Rs,). I consider it essential to reproduce the operative part of the judgment of the cited case so as to clarify the entire law of the Talbs, in a pre-emption suit. In the above case their lordships have observed as follows : "(12) Moreover, the question of Talb-iMuwathibat 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 pre-emption. The latter might exist but is useless unless the former is performed. Had Talb-iMuwathibat 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 Talb-iMuwathibat 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 such 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 preemption laws in the country. What we went to emphasize is Talb-iMuwathibat should not be taken lightly and should not be considered as a mere technicality.
' Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of as right of pre-emption."
' It is further observed: "That 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."
11. In the present case it has repeatedly been argued before the lower Courts and before this Court that the requirements of Talb-i-Muwathibat and Talb-i-Ishhad can be met at one time and place.
This is misconception of law.
12. In sequel thereof, the revision petition is dismissed leaving the parties to bear their own cost.