1. ' SHAHID ANWAR BAJWA, J.---A suit for possession through pre-emption and permanent injunction was filed in 2005 by the present respondent No,l. Respondent No,1 claimed right of pre-emption in respect of a piece and parcel of land on the basis of his being co-sharer (Shafi-ul-Sharik). It was stated by the plaintiff in the plaint that on 7-12-2004, defendants Nos.2 to 9, the vendors, due to family and brotherly annoyance with the plaintiff secretly and surreptitiously sold out the suit land for a consideration of Rs,1,80,682. It was further stated at about sun-set time the vendors brought the purchaser to the suit land to hand over possession to him and plaintiff was also available there and when the plaintiff came to know, on the spot, immediately he performed the Talb-i- Mowasibat. Thereafter he went to two witnesses and made Talb-i-Ashhad and brought those two witnesses to the vendor and made the third Talb. Since the property was not given to him he filed the suit. The suit was dismissed by the trial court vide judgment and decree dated 28-2-2008.
2. ' Being aggrieved by the order of the trial Court Civil Appeal No,18 of 2008 was filed in the appellate Court and the appellate Court vide judgment dated 19-11-2009 allowed the appeal. This second appeal was filed to challenge the impugned judgment of the appellate Court.
3. ' Learned counsel for the appellant submitted that he does not deny that respondent No,1 had a right of pre-emption being Shafi-ulSharik. However, learned counsel went on to submit, no Talb as required by law was made. Learned counsel extensively read from the depositions in the court below and I shall refer to the deposition in due course. Learned counsel relied upon Muhammad Saeed v. Mst.Hajiani Noor Bai and others, 1983 CLC 1883, to contend that it is one thing to claim that one has a right to pre-emption and another thing to make a Talb. His submission was that no such Talb was made. Regarding maintainability of the second appeal, learned counsel referred to section 102 of Civil Procedure Code as amended in 2004 by the Code of Civil Procedure (Amendment) Act, 2004 (Act VIII of 2004) and submitted that since no amount or value has been laid down by the Provincial Government, therefore, whatever be the value of the suit property second appeal would be maintainable. Lastly by relying upon Muhammad Yousuf v. Mst.Kharian Bibi (1995 SCM R 784) learned counsel submitted that the High Court was competent to convert an appeal into revision even on a verbal prayer made by the party concerned. Learned counsel for the respondent No,1 submitted that demands were made. He read from the order of the original Court, where according to learned counsel the ground that prevailed with the original Court was that the witnesses had stated that he made. The first Talb at evening time and then again stated that it was made at sun-set time and the trial Court had held that two times are different and therefore, since no precise time of Talb was stated by the witnesses, therefore, the trial Court did not believe evidence of the plaintiff before it. Learned counsel relied upon Haji Qadar Gul v. Moembar Khan and another 1998 SCM R 2102 and submitted that all the Talbs had been made in presence of at least two witnesses. He further submitted that since there is no preemption statute in the province of Sindh, therefore, subject of preemption in the province of Sindh is governed by the Shariah Law on the subject. On the question of maintainability of the appeal learned counsel referred to section 6 of the General Clauses Act and submitted that since no monetory value has been laid down by the provincial government, therefore, provision of section 102, C.P.C. Prior to the amendment shall continue to be applicable and since value of the suit land was not more than 2,50,000, therefore second appeal would not be maintainable.
4. ' I have considered the submissions made by the learned counsel and have also gone through the record as well as the case law cited at the bar.
5. ' Section 102 of C.P.C. Prior to this amendment in 2004 was in the following words:-
102. No second appeal in certain suits. No second appeal shall lie:--
(a) in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [twenty] five thousand rupees; and
(b) in any other suit, when the amount or value of the subject matter of the original suit does not exceed (two hundred fifty thousand rupees).
6. ' In 2004 through VIII of Act 2004 it was amended and is now in the following words:-- '
102. No Second appeal in certain suits. No second appeal shall lie, in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed the amount or value as the Provincial Government may by law determine.
7. ' Both the counsel are at one that no such money limit has been laid down by the provincial government. Contention of the learned counsel for respondent No,1 was that since no such limit has been laid down, therefore, provision of section 6 of the General Clauses Act shall apply. On the other hand contention of the learned counsel of the appellant was that section 6 of the General Clauses Act is not attracted to the facts of the case for two reasons. Firstly the suit was filed in 2005 and therefore, it was not a past and closed transaction at the time when the law was amended and secondly section 6 of the General Clauses Act is applicable only in case of repeal and is not applicable in case of amendment. Second contention of the learned counsel for the applicant is without any substance because it has been held by Mr. Justice B.Z. Kaikus in case repotted as Saeed Ahmed v. The State PLD 1964 SC 266 that effect of repeal and amendment is the same because both mean that with effect from that date previous law ceases to be valid and this is now the new state of law. However, the first contention of the learned counsel that it was not a right accrued on the day when the law was amended is perfectly correct because in this case sale was made in 2004 and suit was filed in 2005. Therefore, it is held that this second appeal is to be governed by amended section 102 and not by the un-amended section 102.
8. ' But that does not end the matter. Section 100, C.P.C. Lays down three situations in which a second appeal is maintainable. Section 102, C.P.C. Whether before amendment or after amendment, that is not material, has to be read along with section 100, C.P.C. Three conditions laid down in section 100, C.P.C. Being firstly decision is contrary to law or usage having force of law; secondly the decision having failed to determine some material issue of law or usage having the force of law; and thirdly a substantial error or defect in the procedure prescribed by the C.P.C. Or by any other law. None of these three have either been pleaded in the appeal or have been pointed out at the time of arguments. Therefore, this second appeal is not maintainable.
9. ' However, the learned counsel relied upon Muhammad Yousuf's case (supra) where the honourable Supreme Court has held that High Court was competent to convert an appeal into revision even on a verbal prayer made by the party concerned and made such verbal prayer at to time of arguments and I therefore, convert this appeal into a revision and proceed to decide it accordingly.
10. ' Under section 115 a revision is maintainable when there has been, amongst other, a material irregularity. Contention of the learned counsel for the applicant was that no Talb was made.
11. Learned counsel for the applicant read from statement of plaintiff in his examination-inchief he referred to the following from the statement:-- ' Again says at sun-set time, where Bhooral informed that they have come to hand over the possession of suit land to defendant No,1 as they have sold out the suit land. Immediately I asked Mumtaz Ali that I am ready to give sale consideration amount, suit land be given to me, as I am share holder in the above survey numbers. Defendant No,1 Mumtaz Ali refused. Then I called P.W.
12. Atta Muhammad and P.W. Qurban Ali as they were present at their land, the P.W. Qurban was also present grazing his goats, they came behind us I informed them that I already demanded suit land from defendant No,1 on payment of consideration amount but lie refused, therefore, I again demanded suit land from Mumtaz Ali on payment of the consideration amount. You would be the witnesses. In presence of above witnesses I asked Mumtaz Ali that I have already demanded land from you and again demanding the land on payment of consideration amount and suit land be given to me in presence of witnesses. The defendant No,1 again refused.
13. ' He next read from the evidence of witness Atta Muhammad, the relevant part was to the following effect:- ' I am coming towards plaintiff, Qurban was standing with his goats in Phittal Wah, healso came with me towards the plaintiff,' where defendants Nos.1 to 6 were Standing at the suit land. When we reached towards plaintiffs where plaintiff informed us that he had already demanded suit land from defendant No,1 he refused in presence of me. I again demanded suit land from defendant No,1. We would be the witnesses. In our presence plaintiff demanded suit land from defendant No,1 ascertain that he has already demanded suit land. The defendant No,1 in our presence stated that he obtained advice then replied, therefore, we went away.
14. ' Lastly the learned counsel read froni statement of Qurban, Ali and the relevant is as under:-- ' When we reached behind plaintiff there were defendants Nos.1 to 6 standing and plaintiff was standing. When we reached nearby them plaintiff informed us that he had already demanded land from defendant No,1 and again in your presence he demanding suit land from defendant No,1, you would witness. The plaintiff demanded from defendant No,1 in our presence that suit land be given to him on payment of same consideration amount as he had right of pre-emption..
15. ' Learned counsel had relied upon Muhammad Saeed's case (supra). In Muhammad Saeed case it was stated in the evidence by Muhammad Saeed as under:-- "I know the plaintiff. In the middle of August, 1973 I had gone to the shop of plaintiff for purchase of some articles, where I was standing there Abdul Samad son of A.Shakoor arrived there and he had given some- sweets to the plaintiff and he had informed him that they had purchased the adjoining property. On hearing this the plaintiff was put up and had said he had right over the said property, being the Shafi and as to how this property was sold."
16. ' Given this situation it was held by the Court as under:- "The above quoted paras of the plaint referred .To hereinabove in para on the point of making Talbs are vague. They do not spell out the Talb-i-Mowsibat and Talb-i-Ashhad were made in Accordance with law. The applicant immediately on coming to know had to say that he was exercising right of pre-einption and not that he had the right of pre-emption. The pleading is silent as to the date on the above point."
17. ' The above reveals. That in Muhammad Saeed's case (supra) the plaintiff had stated in the evidence that upon coming to know of the sale he stated that " he had right over the said property".
18. A single bench of this Court held that since he had merely claimed that he had a right over the property it could not be spelt out from it that he made Talb-i-Mowsibat or Talb-i-Ashhad in accordance with the law. In the present case it is stated by the plaintiff that "immediately" he "asked Mumtaz Ali that (he) was ready to sale consideration amount", and suit land be given to him as, he was shareholder in the above survey number. Three things are said in the statement. By saying that he is shareholder in the survey number, the plaintiff asserted that lie is Shafi-ul-Sharik; by saying E that he is ready to give the sale consideration means that he is referring to some sale (which is stated earlier in his evidence) and is ready to purchase and thirdly he asked respondent No,1 to give him the property. All the necessary ingredients of Talbs were made. One need not utter the word talb because law looks at the substance and not at the form.
19. ' Statements to the similar effect were made by the other witnesses. Qurban Ali stated that the appellant demanded that suit land be given to him as "same" consideration. In my opinion these do constitute a proper Talbs in accordance with the law. Result of the above discussion is that this regular second appeal is dismissed in limine. Listed application is disposed of.