' ABDUL WAHEED KHAN, J.---- A suit for possession through pre-emption was filed by Haji Mian Muhammad Ali (predecessor-ininterest of the present appellants) against Mian Muhammad Latif (predecessor-in-interest of the respondents) regarding land measuring 70 Kanals, 3 Marlas detail whereof has been given in the body of the plaint. The suit was contested by the defendants and out of pleadings of the parties as many as 13 issues were framed. After expiry of plaintiff on 23-1- 1994, list of legal heirs was filed on 14-5-1994 whereupon amended plaint was ordered to be presented, which order remained unattended. Eventually, the defendants moved an application under Order 22, C.P.C. For dismissal of the suit, as according to them, the suit stood abated after the death of plaintiff Haji Mian Muhammad Ali on 23-1-1994. Thereafter counsel for the plaintiff filed an amended plaint and the same did not bear the signatures of all the legal heirs as required under Order VI, Rule 14, C.P.C. Muhammad Shafi the eldest son of Haji Mian Muhammad Ali, made a request that the signatures of the plaintiffs be obtained through a commission. His request was acceded to and Ch. Muhammad Tariq-ur-Rehman, Advocate was appointed as Local Commission for the said purpose who visited the addresses mentioned in the plaint and submitted a report about incorrect addresses of the appellants mentioned in the plaint. Vide its order dated 27-11- 1995, the Civil Court dismissed the suit with the observation that except plaintiff No,1-A all the legal heirs of the deceased neither appeared before the court nor before the Local Commission for identification of their signatures on the plaint and thus the plaint was not presented by interested persons and as a result thereof the suit was bad due to partial pre-emption. An appeal preferred against the said order was dismissed by Addl. District Judge, Lahore vide judgment dated 3-5- 2006 mainly for the reason that after the death of Haji Mian Muhammad Ali, the amended plaint was not filed by his legal heirs except his son namely Muhammad Shafi and that the plaintiff failed to fulfil the requirements of Talb-e-Muwathibat. The appellants have assailed above said judgments through the instant appeal.
2. At the outset, the counsel for the respondents through an application dated 18-6-2008 raised an objection that the appeal is badly barred by time as according to him, the Appellate Court dismissed the appeal vide judgment dated 3-5-2006, whereas the instant appeal was filed on 2- 9-2006 and thus it was filed beyond period of three months.
3. The contentions of the counsel for the appellants are that appeal was dismissed vide judgment dated 3-5-2006 and the application for obtaining certified copy of the same was submitted in the Copying Agency on 19-7-2006 and as soon as the same was delivered to them they filed the instant appeal and thus the same is within the period of limitation. He further submitted that both the Courts below have failed to appreciate that the plaint was signed by all the legal heirs of the deceased, its contents were verified by co-plaintiff Muhammad Shafi and it bears signatures of their counsel and thus it was sufficient compliance of Order VI, Rule 14, C.P.C. According to him, the appellants could not be non-suited on the basis of objection raised by the defendants that the plaint did not bear signatures of all the legal heirs of the deceased Haji Mian Muhammad Ali.
4. Conversely, the contentions of the counsel for the respondents are that Haji Mian Muhammad Ali expired on 23-1-1994 and his son namely Muhammad Shafi, concealed the said fact for about four months, He filed the list of legal heirs on 14-5-1994 and despite specific direction by the trial Court, failed to file the amended plaint for a considerable period and that since the plaint did not bear signatures of all the legal heirs, therefore, the suit automatically stood abated by virtue of Order XXII, C.P.C. It was further submitted that the plaintiff also failed to fulfil the requirements of Talb-e- Muwathibat as observed by the First Appellate Court and thus the order of the dismissal of the suit and the judgment passed by the Appellate Court does not call for any interference by this Court.
5. Arguments heard.
6. So far as the objection of the counsel for the respondents on the point of limitation is concerned, the appeal was dismissed by First Appellate Court vide judgment dated 3-5-2006 and the appellant filed an application in the Copying Agency for obtaining the certified copy of the same on 19-7-2006. After obtaining the same, they filed appeal on 2-9-2006. There is nothing on the record that the Copying Agency gave any intimation to the appellants that the certified copy had been prepared and that they may collect the same. In this view of the matter, after deducting the period commencing from the filing of the application for obtaining certified copy uptil the delivery of the same, the appeal was filed within the period of limitation.
7. It is borne out of the record that plaintiff namely Haji Mian Muhammad Ali expired on 23-1-1994.
This fact was not brought into the notice of the Court uptil 14-5-1994, when a list of his legal heirs was placed on the record. After the death of plaintiff on 23-1-1994 uptil the passing of the order by Civil Court on 27-11-1995, the co-plaintiffs did not appear before the Court for verifying the fact that the suit was in fact filed by them and the plaint bear their signatures.
8. Three points need determination. Firstly whether right of preemption is inheritable, secondly whether the suit would not abate on the death cif the original pre-emptor in the light of the provisions of Order XXII, C.P.C. And lastly what would be the effect of omission to mention the "time" of Talb-e-Muwathibat in the plaint.
9. So far as the first point is concerned, the same has been answered in case reported as Aziz-ur- Rehman v. Muhammad Nawaz PLD 1988 SC 384) that, "a pre-emptor who had no right on the date of sale could not prove his right after sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with superior status after accrual of the cause of action. It was also held that pre-emption 'suit must fail as the respondent lacked necessary qualification of the date of sale."
' In case reported as Muhammad Ishaq v. Muhammad Sadiq 2007 SCM R 1478 the Hon'ble Supreme Court of Pakistan has held that, "the respondent himself had no right on the date of sale and thereafter to pre-empt the same by inheritance. Also, in this case, he could not improve his qualifications to have such right, if any, enforced after the sale, accordingly."
10. So far as the second point that whether the suit would not abate on the death of the original pre-emptor is concerned, in case Muhammad Ishaq (supra) it was held that, "coming to the remaining question whether the suit would not abate on the death of original pre- emptor in the light of provision of Order XXII, C.P.C. It may be stated, at the outset, that the object of substituting the legal representative of a deceased plaintiff is merely is to continue the suit and consider the rights and disabilities of original party on whose death substitution takes place."
11. Therefore, it is held that although suit would not abate but the legal heirs of the deceased had no right on the date of sale and thus they could not improve their right after the sale by inheritance as the cause of action had already came into existence and subsequent qualification by inheritance could not vest them with superior status after the accrual of the cause of action.
12. Coming to the point of fulfilment of requirement of Talb-eMuwathibat, it is averred in the plaint that on 26-12-1991, Muhamimad Liaqat came to see the plaintiff in his house, and told him about the sale transaction, he in the same sitting declared his intention to exercise his right to file suit for pre-emption and thus he fulfilled the requirement of Talb-e-Muwathibat.
13. The perusal of the paras-4 and 5 of the plaint would show that the plaintiffs have given date and place of Talb-e-Muwathibat, but he failed to mention time when he came to know about the transaction and made Talb-e-Muwathibat.
14. The predecessor of the appellants/plaintiffs although mentioned , the date and place of making Talb-e-Muwathibat but he omitted to mention time when such declaration was made. The Hon'ble Supreme Court in case titled Mian Pir Muhammad and another v. Faqir Muhammad through legal heirs and others (PLD 2007 SC 302) held:--- "that a plaint wherein the date, place and time of Talb-eMuwathibat and date of issuing the notice of performance of Talb-e-Ishhad in terms of section 13 of the Act is not provided, it would be fatal for the pre-emption suit."
16. The Hon'ble Supreme Court also held in case Khyber Khan and another v. Haji Malik Aman Ullah Khan (2007 SCM R 1036) as under:- "The plaintiff had, though mentioned in the plaint the date of making Talb-e-Muwathibat but had failed to specify in the plaint the time and place where Talb was made. Omission to mention any one of the three particulars in the plaint would in view of the rule in Mian Pir Muhammad's case resulted in dismissal of a pre-emption suit. Resolution of this question does not require any factual determination, as the same is determinable from the bare reading of the plaint"
16.(sic) It has been held in Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559) as under:- "The mentioning of date, place and time in the plaint in a suit for pre-emption is 'mandatory regarding Talb-i-Muwathibat because from such date the time provided by the statute for making of Talb-i-Ishhad i.e. 14 days, can be calculated. If there is no mention of date, place and time of knowledge about sale and making of Talb-i-Muwathibat, then it would be very difficult to give effect to section 13(3) of the Act and there is every possibility that instead of allowing letter of law to remain in force, the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-I-Muwathibat in his statement in court and then on the basis of the same, try to justify the delay, if any, occurred in the performance of Talb-i-Ishhad. Performance of both these Talbs is a sine qua non for getting a decree in a pre-emption suit. This Court has approved the view that a plaint wherein date, place and time of making. Of Talb-iMuwathibat and date of issuing notice of Talb-i-lshhad in terms of section 13 of the Act, .Is not provided, it would be fatal for the pre-emption suit."
17. Since the Hon'ble Supreme Court has held in Pir Mohammad's case that omission to mention the time, date and place of making Talb-eMuwathibat in plaint would be fatal to a suit of pre-emption, this court need not resolve the dispute between the parties as to whether or not the B plaintiff possessed superior right of pre-emption.
18. The appellants/plaintiffs have failed to meet the requirements as set in Mian Pir Muhammad's case, this Court has no option but to dismiss this appeal and thus the impugned order dated 3-5- 2006 passed by Addl. District Judge, Lahore is upheld.
Second .