' ATTAULLAH KHAN, J.--- Noor Muhammad Khan etc; have filed this revision petition under section 115, C.P.C. Against the judgment and decree dated 15-1-200, passed by the learned Additional District Judge-Ill, D.I. Khan, whereby appeal of Haji Sher Akbar Khan respondent against the judgment and decree dated 9-1-2004 passed by the learned Civil Judge-Ill D.1. Khan was accepted and his suit was decreed against the consideration mentioned in the impugned Mutation No,22741 attested on 29-1-1989.
2. Briefly stated facts of the case are that vide Mutation No,22741 attested on 29-1-1989, the petitioners, Noor Muhammad Khan etc. Have purchased landed property measuring 267 Kanals, 17 Marlas situated in Mouza Panyala Janubi, Tehsil Paharpur District D.I. Khan from Mst. Gulzar Begum, daughter of Ghulam Sarwar Khan against the sale consideration of Rs,80,355.
3. The aforesaid transaction was pre-empted by Haji Sher Akbar Khan plaintiff/respondent on the basis of co-sharership, contiguity, immunities and appendages. He further averred that the actual sale price of the suit land was Rs,8,000 but in order to defeat his pre-emptive rights, an exaggerated and inflated amount of Rs,80,355 was mentioned in the suit mutation. That no notice as required under section 31 of the N.-W.F.P. Pre-emption Act, 1987 was served upon him (the plaintiff) and soon after getting knowledge about the sale, he expressed his intention to pre-empt the same followed by the notice of Talb-e-Isshad under registered cover acknowledgment due.
4. The defendants contested the suit and filed written statement which gave rise to the framing of the following issues:---
(1) Whether the plaintiff has got cause of action and the suit is competent in the present form?
(2) Whether the suit is time-barred?
(3) Whether the plaintiff has made demand of pre-emption in accordance with the provisions of Pre-emption Act X of 1987?
(4) Whether the plaintiff has got superior right of pre-emption and is entitled to the decree as prayed for?
(5) Whether the plaintiff is by his own conduct estopped to sue?
(6) Whether the plaintiff has waived his rights?
(7) Whether the sale consideration of Rs,80,335 has been fixed in good faith or actually been paid?
(8) Market value?
5. The learned trial Judge after considering the data available on file and hearing arguments of the learned counsel for the parties dismissed the suit of the plaintiff vide judgment and decree dated 9-1-2004.
6. Feeling aggrieved, the plaintiff challenged the aforesaid judgment and decree of the trial Court in appeal which was accepted by the learned Additional District Judge-III, D.1. Khan, vide judgment and decree dated 15-1-2004.
7. Now the defendants Noor Muhammad Khan etc. Are aggrieved from the aforesaid verdict of the learned appellate Court and has questioned it through the instant civil revision petition to be declared null and void and to restore those of the trial Court.
8. Learned counsel for the petitioners argued that the learned appellate Court has committed a legal error in decreeing the suit in favour of the respondents. According to him, the trial Court has failed to appreciate the evidence in respect of demands under section 31 of the N.-W.F.P. Pre- emption Act 1987.
9. On the other hand, learned counsel for the respondent/plaintiff submitted that the demands were made by the plaintiff in accordance with law and he has also a superior right of pre-emption.
10. I have carefully examined the record and considered the arguments of the learned counsel for the parties.
11. Perusal of the plaint reveals that the plaintiff in paragraph-3 therein has stated as under:- {{URDU TEXT}}
4. The above facts indicates that the plaintiff has failed to {{URDU TEXT}} ention the date, time and place of making Talb-e-Muwathibat.
12. Learned counsel for the respondent has relied upon 2000 SCM R 329, wherein it has been held as under:--- "We are, therefore, unable to endorse the view taken in the impugned judgment of the High Court that the requirements. Talb-e-Muwathibat cannot be fulfilled unless details, particulars, date time and place are also specifically mentioned in the plaint and the names of the persons in whose presence such Talab is made is also mentioned therein.
' In the instant case, plaintiff had specifically referred in the plaint to the two Talbs having been made. The plaintiff could not be non-suited merely on the ground that other details of time and place of the Talbs and names of the witnesses etc. Had not been specifically mentioned in the plaint. It may be added that in case defendant/respondents had any difficulty in filing their written statement, they could apply to the trial Court for the further and better particulars by filing an appropriate application under Order VI, Rule 5 of the C.P.C No such request was made by the respondents and they filed their written statement without taking any plea therein that they had been prejudiced on account of any detail or particular having not been given in the plaint".
13. On the other hand, learned counsel for the petitioners relied upon PLD 2007 Supreme Court 302.
According to him, it is the legal requirement to mention the date, time and place in the plaint as well as in the evidence. As far as plaint is concerned, he has not mentioned the above mentioned requirements. However, in his statement before the Court as P.W.4, he has mentioned the date, time and place. These details are missing from the plaint.
14. In the above case-law, it has been held as under:--- "It is observed that great emphasis and importance is to be given to this word in making of Talb-e- Muwathibat and it is necessary that as soon as the Pre-emptor acquired knowledge of the sale of pre-empted property, he should make immediate demand for his desire and intention to assert his right of pre-emption without the lightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talb-eMuwathibat, in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform, i.e. Making of Talb-eIshhad as soon as possible after making Talb-e-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-e-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-e- Muwathibat, because from such date, the time provided by the statute, i.e. 14 days under subsection (3) of section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-e-Muwathibat, then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully, the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-e-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay, if any, occurring in the performance of Talb-e-Ishhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit".
15. In this judgment, the honourable apex Court has also discussed the judgments reported in 2000 SCM R 329 mentioned above. In the above case-law relied upon by the learned counsel for the petitioner, it was held that the three ingredients regarding place, time and date are to be mentioned in the plaint.
16. As stated and discussed above, no date, place and time is given by the plaintiff in his plaint in order to perform Talb-e-Muwathibat. Therefore, I hold that the same were not performed in accordance with section 13 of the N.-W.F.P. Pre-emption Act 1987.
17. Therefore, I am of the view that the learned appellate Court has not properly appreciated the law points involved in the case and has wrongly decreed suit of the plaintiff.
18. Consequently, I accept this revision petition, set aside the impugned judgment and decree dated 15-1-2005 passed by the learned Additional District Judge-Ill, D.I. Khan and dismiss the suit of the plaintiff with no order as to costs.