' SH. AZMAT SAEED, J.---This appeal under Article 185(2)(d) of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the judgment dated 13-2-2007, passed by the learned High Court, whereby Regular Second Appeal No,10 of 2004, filed by respondents Nos,1 and 2 against the appellate judgment and decree dated 9-12-2003, was allowed.
2. Brief facts necessary for adjudication of the lis at hand are that respondents Nos,1 to 3 filed a suit for possession through pre-emption against the present appellants in respect of the property in dispute, acquired by the appellants through a mutation attested in their favour on 29-11-1989. The respondents claimed a superior right of pre-emption. It was contended that the actual consideration was Rs,2 lacs, however;' it had been shown as Rs,6 lacs with mala fide intention.. The appellants contested the suit. Upon the divergent pleadings of the 'parties, issues were framed, and evidence was led. Whereafter, the trial Court seized of the matter, vide its judgment dated 23-11- 1995, dismissed the suit. The respondents filed an appeal, which too failed to find favour and was dismissed on 9-12-2003, whereafter, respondents Nos,1 and 2 filed a Second Appeal before the learned Lahore High Court, which was allowed, vide judgment dated 13-2-2007, and the snit was decreed in favour of respondent No,1, subject to deposit of Rs,6 lacs with an adjustment of 1/5th amount already deposited. It is the said judgment and decree dated 13-2-2007, which has been challenged through the instant appeal.
3. It is contended by the learned counsel for The appellants that the suit in the instant case was filed in the interregnum, when the Punjab Pre-emption Act, 1913, had ceased to exist in view of the judgment of the Shariat Appellate Bench of this Court, reported as Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) and before the Punjab Pre- emption Ordinance, 1990, was issued. Hence, the suit was to be proceeded with in accordance with the Classical Islamic Law inclusive of the requirement of Talb-i-Muwathibat and Talb-i-Ishhad. It is added in the alternative that section 35 of the Punjab Pre-emption Act, 1991 (hereinafter referred to as Act of 1991), does not preclude the necessity of Talb-i-Muwathibat, as Talb-i-Ishhad presumes an earlier Talb-i-Muwathibat and merely reaffirms the same. It is the case of the appellants that Talb-i-Muwathibat was neither pleaded with the requisite particulars as to time, date and place nor proved in evidence in accordance with law. The learned counsel adds that both the trial Court as well as the First Appellate Court had concurrently held that Talb-i-Muwathibat had not been proved and such concurrent findings of fact could not be set aside in a Second Appeal; which essentially lies on a point of law. It is further added that even otherwise, the findings of the trial Court and the First Appellate Court were based on' a correct and reasonable appreciation of the evidence on the record. In this behalf, the learned counsel has drawn the attention of this Court to the statement of P.W.1 the father of the respondent No,1, who was apparently a minor at the time of the transaction. The learned counsel further contended that the alleged Talb i-Muwathibat, as per the statement of P.W.1, was purportedly made on his own behalf and not on behalf of the respondents. It is next added that P W.1 was not the attorney of respondents Nos,2 and 3 authorized to make Talb-i-Muwathibat on their behalf.
' The learned counsel for the appellants further contended that the notice of Talb-i-Ishhad was legally deficient and not proved on record to have been issued on behalf of the respondents nor was it established that the same had been served upon the appellants.
' The learned counsel added that respondents Nos,2, and 3 abandoned their claim, as a consequence whereof the suit of respondent No,1 was no longer maintainable.
' In support of his contentions, the learned counsel for the appellants has placed reliance upon the judgments, reported as Haji Abdullah Khan and others v. Nasir Muhammad Khan and others (PLD 1965 SC 690) Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287), Mst. Saila Begum v. Ibrahim and 4 others (PLD 1989 SC 314), Haji Rana Muhammad Shabbir Ahmad Khan v.
Government of Punjab Province, Lahore (PLD 1994 SC 1), Abdul Ghaffar Abdul Rehman and others v.
Asghar Ali and others (PLD 1998 SC 363), Abdul Ghias v. Syed Haji Taj Muhammad and 42 others (PLD 1995 Quetta 1), Mst. Sooban Bibi and 3 others v. Mst. Khatoon and 3 others (PLD 2001 Lahore 245), Ghulam. Jilani and 3 others v. Ghulam Muhammad and 7 others (1991 SCMR 2001), Muhammad Hanif and another v. Sultan (1994 SCMR 279), Abdul Hameed and others v. Muzamil Haq and others (2005 SCMR 895), Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105), Ali Muhammad v. Muhammad Bashir (2007 SCMR 1531), Shafqat Mahmood and others v.
Muhammad Yaqoob and another (2008 SCMR 1411), Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762), Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911), Haji Ghulam Sarwar v. HabibUllah and another (PLD 2002 SC 263); Fazal-ur-Rehman v. Khurshid Ali and another (2012 SCMR 635), Mumtaz Hussain and another v. Muhammad Achar and 2 others (1991 CLC 209), Jasraj Indersingh v.
Hemraj Multanchand (AIR 1977 SC 1011), Muhammad Raza Ali Khan r. Muhammad Israr Hasan Khan (AIR 1929 Allahabad 459), Lodhi Bibi and others v. Masaddar Ali Chaudhury and others [AIR (36)
1949 Assam 81] and Jaganath Rughanath v. Ranchhod Chansiram and another [AIR (37) 1950 Madhya Bharat.
401.
4. The learned counsel for the respondents has controverted the contentions raised on behalf of the appellants. It is contended that the case at hand is fully covered by the provisions of section 35(2) of the Act of 1991, and in this behalf, the respondents were only required to establish Talb-i- lshhad in respect whereof the necessity of issuing notice was dispensed with. And such Talb-i- Ishhad had been proved in evidence, as has been rightly held by the learned High Court by way of the impugned judgment. It is further contended that the Talbs had been pleaded with the requisite details and established on record through cogent evidence. The learned counsel next contended that the mere fact that respondents Nos,2 and 3 abandoned their claim, does not prejudice the claim of respondent No,1 in view of section 14 of the Act of 1991 and the suit was rightly decreed in her favour by the learned High. Court. In support of his contentions, the learned counsel relied upon the judgments, reported as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1), Mehr Allah Ditta and another v. Muhammad Ali and another (PLD 1972 SC 59), Amir Jan and 3 others v. Haji Ghulam Muhammad (PLD 1997 SC 883), Mian Pir Muhammad and another v.. Faqir Muhammad through L. Rs, and others (PLD 2007 SC 302), Jalla and others v. Nauranga and others (PLD 1949 Lahore 246), Mst. Bashiran Bibi v. Muhammad Kashif Khan and others (PLD 1995 Lahore 200), Wahid Bakhsh v. Kama and others (PLD 1996 Lahore 459), Ghulam Abbas v. Muhammad Ashraf (1993 SCMR 2289), Abdul Malik v. Muhammad Latif (1999 SCMR 717), Tajammal Hussain Khan and 3 others v. Allah Ditta and another (2003 MLD 14), Jamil Ahmad v. Liaqat Ali (2003 CLC 229), Muhammad Zaman v. Muhammad Hanif and another (2004 YLR 1268) and Falak Sher v. Muhammad Mumtaz and 2 others (1992 MLD 1879).
5. On the date of the filing of the suit in the instant case i,e, 17-12-1989, no statutory law pertaining to pre-emption existed in the Province of the Punjab and the suit was to be filed and maintained in accordance with the Classical Islamic Law of Pre-emption wherein Talbi-Muwathibat is A sine quo non for exercising a right of pre-emption. During the pendency of the suit before the trial Court, the Act of 1991, was promulgated. Section 35, refers to Talb-i-Ishhad, while dispensing with notice thereof. The various provisions of the Act of 1991 (including, section 35 thereof), were challenged on the ground of being repugnant to the Injunctions of the Islam. The matter was adjudicated upon by the Shariat Appellate Bench of this Court in its judgment, reported as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1). In the said judgment, with reference to section 35, it was held as follows:--- "57. It is, therefore, held that' section 35(2) of the Act 1991 is repugnant to the. Injunctions of Islam in so far as it exempts the cases pending or instituted during the period from Ist of August, 1986 to 28th of March, 1990 from the requirements of Talb-i Muwathibat, and extends the right of limitation for them up to one year. However, the provision of sending a notice to the vendee, as contemplated in section 13 of the Act 1991, can be dispensed with in relation to these suits, because as mentioned earlier, sending of notice is not a substantive requirement in the Shari'ah to effect the Talb-i-Ishhad. On the contrary, it is procedural provision enacted by the legislature on the basis of expediency. Therefore, it is open for the legislature to dispense With this requirement altogether or with respect to certain cases."
6. The aforesaid judgment took effect on 31-12-1993, while the suit in the instant case was still pending before the trial Court. Thus, in the instant matter however, which way the /is is examined, there can be no escape from the fact that the Talb-i-Muwathibat was required to be pleaded and proved in order to obtain a decree of pre-emption, both in terms of Classical Islamic Law and the Act of 1991.
7. With regards to the necessity of pleading the requisite details of Talb-i-Muwathibat, the matter recently yet again came up before this Court. After noting and quoting the previous judgments of this Court on the point including, Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302), Bashiran Begum v. Nazar Hussain (PLD 2008 SC 559), Haq Nawaz v. Muhammad Kabir (2009 SCMR 630) and Ghafoor Khan v. Israr Ahmed (2011 SCMR 1545), this Court in its judgment, reported as Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911), held as follows;-- "4. Having heard learned counsel for the petitioner at some length, we find that a bare reading of para 2 of the plaint in the suit filed by the petitioners/pre-emptor indicates that petitioner did mention that he came to know about the impugned sale on 5-3-1996 and immediately declared that he would preempt but neither mentioned the place where he acquired knowledge of the sale nor the time or the witnesses in whose presence he performed Talb-i-Muwathibat."
8. We have examined the plaint in the instant case in the right of the requirement of pleading Talb- i-Muwathibat with the necessary details and particulars and find that the same does not fulfil the criterion laid down by this Court quoted above. The absence of the necessary details with regard to time, date and place and the witnesses in whose presence Talb-i-Muwathibat was made was fatal to the suit, as was correctly held by the trial Court and the First Appellate Court.
9. Furthermore, not only Talb-i-Muwathibat has to be pleaded in the plaint with the requisite details and particulars, but also has to be proved through cogent evidence. After appraisal of the evidence of the record, the trial Court returned a finding that the Talb-i-Muwathibat has not been proved. The said finding was affirmed by the First Appellate Court. This concurrent finding of fact has been upset in the limited jurisdiction of a Second Appeal without any legal or factual basis. In the impugned judgment no misreading or non-reading of evidence or misapplication of law, pertaining to evidence has been mentioned. Consequently, there was no occasion to set aside the concurrent findings of fact.
10. In view of the above, Talb-i-Muwathibat having neither been pleaded in accordance with law nor proved in evidence, the suit filed by the respondents could not succeed. Thus, the impugned judgment dated 13-2-2007, is not sustainable in law on this ground alone, hence, the other contentions raised by the learned counsel for the appellants need not be adjudicated upon.
11. Therefore, this appeal is allowed and the impugned judgment dated 13-2-2007, is set aside and the judgment and decree of trial Court dated 23-11-1995 as affirmed by the Appellate Court in its judgment and decree dated 9-12-2003, dismissing the suit, are restored.