' SAGHEER AHMAD QADRI, J.--- Sher Afgan, petitioner plaintiff filed suit for possession through pre- emption in respect of 14 marlas of land detail of which is given in the head note of the plaint mentioning the facts that respondent-defendant Sher Bahadur vide Mutation No,6080 dated 11-1- 2002 purchased the land in consideration. Of Rs,25,000, however, in order to defeat the right of the petitioner-plaintiff fictitious price of Rs,87,000 was shown in the mutation; that the petitioner- plaintiff came into knowledge of the sale on 18-1-2002 through Sultan Mubarak son of Muhammad Ashraf and subsequently after getting copy of, the mutation he sent notice of Talb-i-Ishhad on 31- 1-2002 to the respondent-defendant attested by Sultan Mubarak and Muhammad Sadiq; that he claimed superior right of pre-emption being Shareek Khata and prayed that suit be decreed in his favour.
2. This suit was resisted by the respondent-defendant by raising six preliminary objections about maintainability of the suit being devoid of any cause of action, barred by time and non performance of Talbs. On factual side it was agitated that 2-1/2 years back the land in question was sold in consideration of Rs,2,87,000 and only Rs,87,000 were paid at the time of mutation on 11- 1-2002. The superior right of pre-emption was denied while remaining assertions made by the petitioner-plaintiff were also refuted. It was prayed that the suit be dismissed.
3. Out of the readings of the parties necessary issues were framed. Petitioner-plaintiff Sher Afgan got examined Muhammad Yunus, Clerk GPO Attock as P.W.-1, Sher Afzal Postman as P.W.-2 and he himself appeared as P.W.-3. Besides this P.W.-4 Sultan Mubarak and P.W.-5 Muhammad Sadiq also supported the contentions of the petitioner-plaintiff. Learned counsel for the petitioner-plaintiff while getting exhibited documents Register Haqdaran Zamin for the year 1997-98 (Exh.P4) and Mutation No,6080 dated 11-1-2002 (Exh.P5) closed the evidence. On the other hand, Muhammad Taj, special attorney of the respondent-defendant appeared as DW-1 and the learned counsel while got exhibited copies of Register Haqdaran Zamin for the year 1993-94, 1993-94, 2001-2002 (Exh.D2, Exh.D3, and Exh.D4), Mutation No,3619 (Exh.D5), Mutation No,6080 dated 11-1-2002 (Exh.D6) closed his defence.
4. The learned trial Court while deciding issues Nos.1, 7 and 8 against the petitioner-plaintiff, Issues Nos.2 to 6 in affirmative dismissed the suit vide judgment and decree dated 18-12-2007. Feeling aggrieved the petitioner-plaintiff preferred an appeal which was also dismissed by the learned Additional District Judge, Attock vide judgment and decree dated 20-4-2010. Hence the petitioner- plaintiff has approached this Court through this civil revision in hand.
5. At the outset of the hearing learned counsel for the petitioner when confronted by this Court in view of para-2 of the plaint whereby the petitioner- plaintiff asserted about performance of Talbs without mentioning the time and place of the knowledge of sale and then performance of notice of Talb-i-Muwathibat which is a prerequisite for proving the performance of Talb-i-Ishhad learned counsel was unable to controvert this legal proposition warranting interference by this Court against findings of fact passed by the learned trial Court upheld by the learned appellate court on Issue No,2. It is now settled law that in a suit for pre-emption it is mandatory for the respondent/pre-emptor to prove performance of three Talbs i.e. 'Talb-i-Ishhad' and 'Talb-i- Khusumat' to exercise his right of possession through pre-emption in respect of a sale. It is further settled by the authoritative pronouncements of Hon'ble Supreme Court of Pakistan that performance of 'Talb-i-Muwathibat' while giving details of its performance i.e. Date, time and place is to be recorded in the plaint and until and unless such details are provided in the plaint no suit for pre-emption is maintainable. In this respect judgment cited as Muhammad Iqbal v. All Sher (2008 SCM R 1682), Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs, and others (PLD 2007 SC 302), Hail Muhammad Salem v. Khuda Bakhsh 2003 SC 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977) can conveniently be referred. If the plaint in this case is seen the respondent-plaintiff Muhammad Sharif in para-2 specifically agitated that --- {{URDU TEXT}}
6. It is clear by mere reading of para-2 of the plaint above mentioned that the respondent/plaintiff only has given date i.e. On 15-1-2002 when he came to know the sale in question through Sultan Mubarak son of Muhammad Ashraf. He did not mention the time and place of the Majlis before whom he came into knowledge of the sale as well as performance of 'Talb-i-Muwathibat'. Thus the provisions of section 13(3) of the Pre-emption Act, 1991 are not shown complied with by the petitioner-plaintiff.
7. As already mentioned that now it has almost been settled by the Hon'ble Supreme Court of Pakistan that a pre-emptor must disclose the date, time and place of pronouncement of 'Talb-i- Muwathibat' without any ambiguity until and unless such details are provided in the plaint the subsequent evidence to prove the performance of 'Talb-i-Muwathibat' is not acceptable. In a recent unreported judgment of the. Apex Court in Civil Petition No,1137 of 2008 titled Mst. Asia Bano v. Javed Akhtar their lordships in the Hon'ble Supreme Court of Pakistan while discussing the judgments Muhammad Iqbal v. All Sher (2008 SCM R 1682). Mian Pir Muhammad and another v.
Faqir Muhammad through L.Rs, and others (PLD 2007 SC 302) held that in the eventuality if the above mentioned details o the performance of 'Talb-iMuwathibat' are not given in the plaint even the learned trial Court is not bound to allow the pre-emptor to lead any evidence in this respect and if any evidence is led it should not be looked into even by the appellate Court or by the High Court. The relevant paragraph No,4 of the judgment/order of the apex Court is hereby reproduced for facility reference:--- "The above mentioned shows that date, time and place of making of Talb-i-Muwathibat were not mentioned in the plaint and the time and place of making of Talb-i-Muwathibat were not stated even in the oral evidence produced by the respondent. It was held in Mian Pir Muhammad and another v. Faqir Muhammad through L. Rs, and others (PLD 2007 SC 302) Muhammad Iqbal v. Ali Sher (2008 SCMR 1682) that the mentioning of date, time and place in the plaint of making of Talb-iMuwathibat was mandatory and the omission to do so would he fatal to the preemptor's case. In the present case such details are totally lacking. Therefore, even if the petitioner/defendant had been proceeded ex parte and was not before the trial Court, the respondent's suit could not have been decreed: In Muhammad Iqbal v. Ali Sher (supra) it was further held by this Court that in such a situation, the trial Court after examining the pleadings of the parties should not have allowed, the plaintiff to lead the evidence on the facts not alleged by him in the plaint and even if the evidence was allowed to be recorded by the trial Court, it should not have been considered as evidence in the case by the appellate Court and the High Court."
8. Resultantly, this civil revision being devoid of any merits, is hereby dismissed in limine.