JUDGMENT MUHAMMAD NOOR MUSKANZAI, J.---Instant appeal is directed against the judgment and decree dated 5-11-2004 passed by learned Senior Civil Judge-I, Quetta whereby the suit filed by appellant has been dismissed.
2. Facts relevant for disposal of present appeal are that the appellant Instituted a suit for possession through preemption against respondents in the Court of Senior Civil Judge-I; Quetta. It was averred in the plaint that plaintiff owns agricultural property measuring 2 Acres, 25 poles in Khasra Nos. 800/1308/1309, at Mohal Khushkaba Kuchlak, Mouza Kuchlak, Tappa Kuchlak, Tehsil Saddar, District Quetta. The defendants Nos. 1 to 11 are also owners of the property measuring 18 rods 37 poles bearing Khasra Nos. 1306 and 1307 situated at Mohal Khushkaba Kuchlak, Monza Cuchlak, Tappa Kuchlak, Tehsil Saddar, Distfict Quetta.. Property of defendants is adjacent to the property of plaintiff and parties are participants in immunities and appendages. The respondents Nos.1 to 11 sold their 1/4th share measuring 4 rods 29 poIes out of the total land measuring 18 rods 37 poles in Khasra No.1306, 1307 situated at Khushkaba Kuchlak, Mouza Kpchlak, Tappa Kuchlak Tehsil Saddar District Quetta to die respondents Nos.12 and 13 in equal shares for a fictitious consideration of Rs.5,14,000' and secretly mutated the property in Tehsil record on 17-9-2002 vide mutation Entry No.342 dated 17-9-2002. The appellant came to know about the sale transaction on or about second week of October, 2002. Appellant immediately expressed his intention to assert the right of `Shufa' without loss of time and thereafter with least practicable delay affirmed the said intention through Talb-e-Ishhad, referring expressly to Talb-e-Mawasibat' made in presence of two witnesses by taking them on the premises. Such fact was also brought in the notice of respondents Nos.1 to 11 verbally as well as by sending a registered notice on 16-11-2002.
3. The respondents Nos.1 to 11 did not turn up before the trial Court, as such, they were proceeded against ex parte.
However, respondents Nos.12 and 13 contested the suit by way of filing written statement whereby claim of appellant was refuted.
The learned trial Court out of the pleadings of the parties initially framed following issues:-
(1) Whether the suit is not maintainable in view of preliminary objection A and C of the written statement?
(2) Whether the plaintiff is entitled to the relief claimed for?
(3) Relief?. Thereafter the following additional issue was also framed on 13-5-2003:- Whether the plaintiff has superior right in the suit property under Mohammedan Law?
4. Appellant in support of his claim examined five P.Ws. Besides examining himself on oath. In rebuttal the respondents Nos.12 and 13 produced five DWs and respondent No.13 appeared in the witness box.
5. The learned trial Court after evaluating the evidence and hearing the parties dismissed the suit vide judgment and decree dated 5-11-2004, hence this appeal.
6. We have heard Mr. W.N Kohli, Advocate for appellant, whereas Hafiz Aslam respondent No.13 appeared and argued the case in person. Learned counsel for appellant submitted that the trial Court committed material irregularity by dismissing the suit for unjustifiable reasons. The appellant has performed all the three talbs and there was no irregularity nor was there any delay on the part of appellant qua performing the said talbs. It was further mentioned that the appellant by producing evidence fully established that he has performed Talb-e-Mawasibat, Talb-e-Ishhad and Talb-e-Khasomat. The trial Court misread the evidence, misconstrued the pleadings and thus grave injustice has been caused to the vested- rights of appellant.
WHEREAS on the other hand respondent No. 13 supported the judgment and submitted that the appellant failed to prove necessary talbs and has failed to point out any illegality and irregularity in the judgment impugned. The learned trial Court after going through the oral as well as documentary evidence has passed a well reasoned judgment which is not open to any exception.
7. We have considered the contentions advanced by learned counsel for appellant and Hafiz Aslam respondent No.13/ purchaser and gone through the record minutely. Perusal of plaint reflects that the necessary talbs of `Shufa' have not been performed nor the ingredients of the talbs have been satisfied. Prior to filing of plaint a notice is., claimed to have been sent to respondent.
The perusal of said notice reflects that neither the date of knowledge of sale has been mentioned nor the persons before whom the Talb-e-Mawasibat is alleged to have been made, have been nominated. Furthermore Para No. 4 of the A plaint is quite relevant and will clarify the position, as such the same is reproduced herein below:-- "(4) That the plaintiff came to know of the above said transaction having been secretly carried on by the defendants Nos.1 to 11 in favour of defendants Nos.12 and 13 on or about the second week of October, 2002 when he immediately declared his intention to assert the right of Shufa without loss of time and thereafter with least practicable delay affirmed the said intention referring expressly to the effect that the Talb-e-Mawasbat had already been made in presence of 2 witnesses, by taking them on the premises. This fact was also conveyed by the plaintiff to the defendants Nos.1 to 11 verbally as also a registered notice was sent in this behalf through his counsel on 16-11-2002 after obtaining the certified copy of the mutation entry from the Tehsil records on 21-10-2002. "
8. The averments of para No. 4 are absolutely silent regarding the specific date, day and time of knowledge and the performance of talb-e-Mawasibat. It is important to note that the law requires that the person before whom talb-e-Mawasibat is made must be nominated and specified. Under such circumstances it can easily be inferred that the talb-e-Mawasibae has not been performed nor the person before whom the ' talb-e-Mawasibat' alleged to have been made was produced. It may be observed that the statement of P.W.1 who is Patwari, is not with regard to factum of talbs.
P.W.2 Haji Zain-ud-din is- neither witnesses of talb-e-Maswasibat' nor could be treated as witness of `talb-e-Ishhad' as `talb-e-Ishhad' was not made before him. P.W.3 Manzoor Ahmed states that plaintiff came to know about the transaction in Tehsil and he expressed his intention of pre- emption and he came to know in the second week of October, 2002. It is further stated that thereafter he came to Tawer Shah who accompanied him and went to the land in question. The analysis of statement reflects that this witness has not stated time, date and day of knowledge of transaction nor states before whom the `talb-e-Mawasibae was made. Actually the statement of the person before whom `talbe-Mawasibat' is alleged to have been made was essential and inevitable. The appellant/ plaintiff neither in. The plaint nor in statement before the Court has named the person through whom he came to know about the sale transaction and the person before whom the talb-e-Mawasibat. Was made. The above referred statement leaves no room for doubt that there is absolutely lack of first talb-e-Mawasibat', therefore, the suit must fail for non- performance of first talb. In such view of the matter the trial Court has rightly decided issues Nos. 2 and 4, i.e. The crucial issues against the plaintiff/appellant, as such; rest of the issues become redundant and require no discussion.
In view of what has been discussed herein above, we see no merit in the appeal which is dismissed with no order as to cost..