'SHAHID ANWAR BAJWA, J.---A suit for pre-emption was filed by Shah Nawaz, predecessor-in- interest of the applicant in this civil revision application No,15 of 2004 (hereinafter, for the sake of brevity, referred to as the plaintiff) against present respondents Nos. 1, 2 and 4 (hereinafter, for the sake of brevity, referred to as the defendants). It was stated in the plaint that plaintiff is owner of residential house No,C-214, situated at Khairpur Nathan Shah. On eastern side of the house is a house bearing Nos. C-212 A and 213 belonging to the defendants. It was stated that house was adjacent, contiguous and connected with the house of the plaintiff. On 14-6-1986, the defendants Nos. 1 and 2 sold the suit house of defendant No,
3. The plaintiff was informed about the sale on the next day. On learning about this sale, the plaintiff immediately made demand in the same `Majlas' when he came to know of the sale declaring his intention to exercise right of pre-emption.
Thereafter, on the same day the plaintiff went to defendant No,3 along with two witnesses and demanded that the house be sold back to him at the price paid by the defendant No,
2. This demand was claimed to have been made in presence of witnesses after referring to the earlier demand of pre-emption. Defendant No,3, however, refusal to sell the suit house.
Consequently, suit was filed on 13-6-1987. Written statement was filed. In the written statement it was admitted that house No,C-214 belonged to, the plaintiff. However, it was denied that it was adjacent or contiguous to the house of the plaintiff. It was also denied that any of the two demands was made. In his evidence the plaintiff himself appeared as a witness and also produced the two witnesses in whose presence he claimed to have made the demands. Defendant No,3 appeared as his own witness. Thereafter, the trial Court vide judgment, dated March 31st, 2001 decreed the suit.
2. Being aggrieved by the order of the trial Court, Civil Appeal No,2/2001 was filed by the present respondents. This appeal was allowed by the appellate Court vide judgment dated December, 19, 2003. This revision application has been filed to challenge and impugn the judgment, dated December, 19, 2003.
3. Learned counsel for the applicant referred to the judgment to the appellate Court and stated that the appellate Court has framed the following two issues:-- "(1) Whether suit house is pre-emptable property in accordance with law of pre-emption?
(2) Whether the respondent has made Talb in accordance with law?"
4. Both these issues were discussed by the appellate Court together. On isuse No,1 the appellate Court held, relying upon Government of N.-W.F.P. N. Said Kamal Shah, PLD 1986 SC 360, that the property was not liable to pre-emption. On issue No,2 the appellate Court relied upon Khani Zaman v. Shah Hussain, PLD 1998 SC 121 and held that since the names of two witnesses had not been stated in the plaint therefore, the Talbs' were not proved. Learned Counsel submitted that the judgment of the court is wrong on both the counts. On the first count, because PLD 1986 SC 360 was in respect of M.L.R. 115, which was not the issue in lis before the appellate Court. On the second issue, learned counsel submitted that it was specifically stated in the plaint that `Talbs' were made in presence of two witnesses and both these witnesses were produced in evidence.
5. Mr. Gulab Rai C. Jessrani, learned advocate for respondents, contended that the plaintiff had failed to prove that his house was adjacent to the house of the defendants and, therefore, he failed to establish his right of pre-emption. In this connection learned counsel extensively referred to the evidence produced and relied upon Allah Dad v. Bashir Ahmed and another, PLD 2003 SC 488; Khani Zaman v. Shah Hussain PLD 1998 SC 121; Sawan v. Abdullah, PLD 1998 Kar 111.
6. I have considered the submissions made by learned counsel. I have gone through the record as well as case-law cited at the bar.
7. The learned appellate Court has recorded the following reasons:-- "Point Nos. 1 and 2.
'It is the case of respondent Shah Nawaz that he came to know about the said transaction on the next day of sale-deed registration and he pre-empted the same by making jumping demand (Talb Muwasibat) and then made Talb-i-Ishhad. Admittedly, the suit property is a residential house which is purchased by the appellant Ali Nawaz and pre-empted by respondent Shah Nawaz. The learned counsel for the respondent argued that the property could not be pre-empted and such suggession has been put in cross-examination of the respondent, but the same was denied. In a report case in PLD 1686 Supreme Court page 360 a question has arisen as to what kind of property can be pre-empted under Islamic Law of pre-emption and who can exercise right of preemption under the law. The Honourable Supreme Court after discussing the law on the subject has observed as under (relevant page 385).
(URDU CITATION)
'In view of the above observations the property mentioned in Para two of the Plaint cannot be pre- empted and therefore, the present suit is liable to be dismissed on this ground alone.
'It may be observed that the respondent Shah Nawaz in his plaint nowhere disclosed the name of witnesses before whom he made Talb-i-Muwasibat and Talb-iIshhad. The Plaint even does not disclose that as to when the where he asserted his right of preemption. This omission on part of respondent is fatal to his case and it is settled law that the details regarding the time and place of Talb-e-Muwasibat are important factors for period of limitation. I am fortified in my views by the observations made by the Honourable Supreme Court in a case reported in PLD 1998 Supreme Court page 121, (relevant page 123), wherein it is observed in this regard as under:-- "Admitted, no date of Talb-iMuwathibat is mentioned in the plaint nor place of acquiring knowledge of transaction is mentioned therein, nor the names of any of the witnesses are given admittedly, the transactions preempted by the petitioner were distinct and separate but the plaint is silent with regard to making of Talb-i-Muwathibat in respect of each transaction. The evidence examined by the petitioner about the time of making Talb-iMuwathibat is in conflict with the case set up by him in the plaint. In the plaint two talbs are said to have been made on one and the same, day, whereas the evidence led by the petitioner showed that "Talb-iMuwathibat" was made two days prior to Talb-i-Ishhad". The detail regarding time and place of "Talbi-Muwathibat" is an important factor because the period of limitation for Talb-i-Ishhad" is calculated therefrom".
'In the quoted case the suit for preemption was dismissed by the learned Civil Judge, and decree was maintained up to High Court and matter had come up for grant of leave to appeal before Supreme Court and the same was refused hence the judgment and decree of the learned Civil Judge was maintained. This observations made above are also attracted to the facts of the present appeal, therefore, I humbly conclude that the suit of the respondent Shah Nawaz was not maintainable as the same is not properly framed. In view of the reasons and case-law the points Nos. 1 and 2 are decided in negative."
8. The first question is whether the property is liable to pre-emption or not? In this connection the appellate Court has relied upon Government of N.-W.F.P. v. Said Kamal Shah, PLD 1986 SC 360. This is probably the seminal judgment on the right of pre-emption and in this judgment various pre- emption laws were tested on the touchstone of provisions of Holy Quran and Sunnah and it was declared that Martial Law Regulation No,115 of 1972 is contrary to the provisions of Quran. And Surrah. Similarly, some provisions of Punjab Preemption Act were also struck down. The issue involved in this case is totally different. In any case, as far as Said Kamal Shah's case is concerned, the Supreme Court in this case held that under the Islamic Law of pre-emption there is no distinction between agricultural property and residential property. That is why after the judgment of Said Kamal Shah when preemption law was enacted in other provinces, it was specifically provided (for example section 5 of Punjab Pre-emption Act, 1991) that right of pre-emption shall arise in case of sale of immovable property.
9. Under the law of pre-emption there are three categories of the pre-emptors, namely, No,1, Shafi- ush-Shareek (co-sharer), No,2, Shafi-ul-Khalit (participator in special rights attached to immovable property, such as, right of passage, right of passings for water or right or irrigation) and No,3, Shafi-ur-Jaar(owner of the adjacent property). The question is whether the applicant's house No,C-214 is adjacent to the house of defendants. In the plaint, in para No,1, it was claimed that plaintiff is owner of residential house No, C-214, situated at Khairpur Nathan Shah. It was further asserted that this house has been with family of the applicant for last 17 years. In para No,2, it was stated that on the eastern side of the house there is a plot Nos. C-212 and C-213 previously belonging to defendants Nos. 1 and 2. It was claimed that this is adjacent, contiguous and connected with the house of the plaintiff. In written statement paras. Nos. 1 and 2 of the plaint were admitted, however, with the modification that it was stated in the written statement that suit house is not adjacent or contiguous with the house owned by the plaintiff. When the plaintiff appeared as a witness, he stated that there is only an intervening wall between his house and the property subject-matter of pre-emption suit. In his cross-examination he stated that he had not produced documents of ownership of house No,C-214, wherein he resided. He admitted that C.S. No,414 is intervened by a street from suit property. Witness Faqir Muhammad stated that house of the plaintiff was adjacent to the suit property. His second witness Haji Kouro stated that plaintiff owned house in Khairpur Nathan Shah, but he did not know its number. No question about location of the suit property was asked in cross-examination either from witness Faqir Muhammad or from witness Kouro. When defendant No,3 appeared as a witness, he stated that he did not know whether the plaintiff got his house adjacent to the suit house. This evidence shows that it was admitted in the written statement firstly that plaintiff owned house No,C-214 and secondly, the plaintiff was residing in the suit house since 1986. It was denied in the written statement that the suit property was adjacent to the house of the plaintiff. However, when the defendant No,3 himself appears as a witness, he stated that he did not know that house of the plaintiff was adjacent to the suit house. The preponderance of evidence is very clearly in favour of the plaintiff. The trial Court has not at all discussed this particular evidence. In Nasir Abbas v. Manzoor Haider Shah, PLD 1989 SC 568, it was held by the Honourable Supreme Court that "it is also settled law that if the lower Court misreads the evidence on record and fails to take notice of a vital fact appearing therein, and comes to an erroneous conclusion, it would be deemed to have acted with materials irregularity and its decision would be open to revision by the right Court." In the present case, the appellate Court has not said a single word about the evidence available to it in respect of adjoining or otherwise of house of the plaintiff and the suit property. The preponderance of evidence is in favour of the plaintiff and I, therefore, hold that the I plaintiff was "Shafi-ul-Jaar" and property was liable to pre-emption.
10. The, second question was whether the two "Talbs" were made or not. What is the evidence on this point. In the plaint, it is stated that Talb-i-Muwasibat' was made at the same time. Thereafter it is stated that on the same day in presence of two witnesses "Talb-i-Ishhad" was made. In written statement, the defendant No,3 denied that any of the Talbs' was made. In evidence it was stated as under by the plaintiff:-- "At that time P.W. Faqir Muhammad and Kouro Khan were also coming. I immediately jumpingly declared that the property in question was within my pre-emption and I shall purchase it. Faqir Muhammad and Haji Kouro heard my jumping demand at 5-00 p.m. I took Faqir Muhammad and Haji Koouro along with an amount of Rs,20,000 and came at Mehar to Ali Nawaz Seelro. He met us in the Shahi Bazar, I offered him money and told him that I had right of preemption over the property under dispute, therefore, he should accept the amount and recover the property in question in my favour to ward of further litigation."
11. In cross-examination the plaintiff stated that Faqir Muhammad and Haji Kouro were coming from East going to their shops. On this point, witnesses, Faqir Muhammad and Kouro fully supported the plaintiff. They gave date and even the time (at about 5-00 p.m.). The defendant No,3 appears as a witness and all he stated was that Shah Nawaz never came to him. He did not produce any witness who could have stated that at 5-00 p.m. On that date the defendant No,3 was either nor available there or if available, the witness was available with him and the plaintiff or his witnesses had not come to him. No such evidence came. The appellate Court relied upon Sawan's case (supra). It was held in this case that High Court could not in revisional jurisdiction undertake reappraisal of evidence or substitute its own findings of, those recorded by the Court below. It was observed that once it is found that upon a consideration of all relevant evidence the Court below has come to a conclusion which was possible the same cannot be set aside in revisional jurisdiction. There is no cavil with this proposition. As discussed above, the trial Court on the question of property being liable to pre-emption has not at all discussed the question of adjoining of the two properties and on the question of `Talbs', it has merely relied upon Nasir Abbas's case (supra) without appreciating the factual context of that case. Learned counsel also relied upon Khani Zaman's case (supra). Facts of the case were that petitioners filed pre-emption suit. It was contested and it was claimed that "Talb-iIshhad" was not made within the prescribed period. The High Court noticed that in the plaint it was claimed that "Talb-iMuwasibat" and "Talb-i-Ishhad" were made on the same day, whereas in the evidence the pre-emptor had set up a different case to the effect that "Talb-iMuwathibat' was made two days prior to "Talb-i-Ishhad'. In was in this context of fact that the Supreme Court observed that no date of `Talb-i-Muwathibae was mentioned in the plaint and no place of acquiring knowledge of transaction is mentioned therein.
In the present case, it is specifically mentioned in the plaint that both `Talbs' were made on the same day. It is further stated that two witnesses were witnesses of both the `Talbs'. It is F specifically stated in the plaint that there were two witnesses. Both witnesses appeared in evidence and have remained unshaken. What prevailed with the Supreme Court in Khani Zaman's case (supra) was contradiction in what was stated in the plaint. (two Talbs on the same day) and in evidence (one Talb) two days prior to second Talb) and, therefore, since day of first `Talb' was not given it was held to be no established that the 'Talb' was made.
12. Learned Counsel also relied upon Allah Dad's case (supra). It was held in this case that omission to make reference to `Talb-i-Muwathibar at the time of making `Talb-i-Ishhad' would be that pre- emptor would be non-suited. In the present case, it is specifically stated in the plaint that when the plaintiff and his witnesses went to defendant No,3 they referred to "earlier demand of pre-emption preformed by the plaintiff immediately after receiving information of sale." Therefore, all these cases cited by the learned Counsel for the applicant do not helps his case.
The present applicant has clearly established that not only property was liable to pre-emption, but also he exercised both his `Talbs' in accordance with the requirements of the law. In the light of the above discussion this revision application is accepted, judgment and decree of the appellate Court is set aside and judgment of the trial Court passed on 21-3-2001 and decree of the trial Court passed on 7-4-2001 are upheld. In the peculiar circumstances of the case, the parties are left to bear their own costs.