' AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners have challenged the judgment and decree dated. 24-11-2000 passed by the Addl: District Judge, Bahawalnagar, whereby the appeal filed by the respondent-plaintiff was accepted against the judgment and decree dated 8- 7-1997 passed by the Civil. Judge 1st Class, Bahawalnagar, whereby his suit for pre-emption was dismissed.
2. The facts as given by learned counsel for the parties are that one Nazir Hussain sold his 204- kanals 10-marlas land to Muhammad Hanif (petitioner No,1 defendant) through Mutation No,788 dated 14-12-1993. Muhammad Iftikhar Ahmad filed a suit to pre-empt the sale on 12-4-1994.
Admittedly during the pendency of suit, Muhammad Hanif transferred 104-kanals land in favour of Muhammad Tufail and Bashir Ahmad (petitioners Nos.2 and 3) through Mutation No,791. They were made party as defendants Nos.2 and 3 in the suit.
' The suit was contested by the defendants. After framing the necessary issues, the trial court invited the parties to produce their evidence. Both the parties adduced their oral as well as documentary evidence in support of their contentions. After close of trial and hearing the arguments of parties, the trial court vide judgment and decree dated 8-7-1997 dismissed the suit on the basis that plaintiff-respondent has not fulfilled Talbs in accordance with section 13 of the Punjab Pre-emption Act, 1991. Feeling aggrieved thereby, Muhammad Iftikhar -Ahmadplaintiff filed an appeal before the first appellate court. During the pendency of appeal, Muhammad Tufail and Bashir Ahmed transferred the above-mentioned 104-kanals land to Allah Wadhaya through an exchange Mutation No,962 dated 2-12-1997. Then said Allah Wadhaya filed an application before the first appellate court to implead him as respondent in the appeal. Without decision of that application, the appeal was allowed by the first appellate court vides judgment and decree dated 24-11-2000. Resultantly, suit for pre-emption stood decreed. Hence, this civil revision.
3. This civil revision was filed by Muhammad Hanif, Muhammad Tufail and Bashir Ahmad on 21-12- 2000. It was admitted to regular hearing and stay was granted. Muhammad Tufail filed C.M. No,460 of 2002 and also got recorded his statement in the Court on 4-4-2002 and prayed that civil revision be dismissed as withdrawn to his extent, so that he may receive the money deposited in the Executing court to the extent of his share, so to his extent civil revision was dismissed on the same day. Against this application, statement of Muhammad Tufail and order dated 4-4-2002 passed by this Court, an application (C.M. No,777 of 2002) was filed by Allah Wadhaya under Order XXII Rule 10 of the C.P.C, contending therein that as Muhammad Tufail revision petitioner No,2 has transferred his owned property in his favour through Mutation No,962 sanctioned on 2-12-1997, so the application be allowed and he be impleaded as legal representative of already existing revision petitioners Nos.2 and 3. On this application this Court passed an order on 4-4-2002 that it will be heard along with the main civil revision. Further facts are that on 27-6-2002 Muhammad Iftikhar Ahmad appeared in person before this. Court and sought an adjournment to engage his counsel.
After that he died and his legal representatives on 10-6-2009 filed an application (C.M. No,1648 of 2009) for early hearing. Though in Paragraph No,3 of said application, it was submitted that petitioner No,3 (Bashir Ahmad) has compromised with regal representatives of respondent- plaintiff, therefore, this application was fixed before this Court on 10-6-2009, which was disposed of by fixing the date of hearing in the main civil revision and the fact of compromise was also recorded. Thereafter Allah Wadhaya and Bashir Ahmad filed applications (C.M. No,2258 of 2009 and C.M. No,2718 of 2009) under section 12(2) of the C.P.C. For setting aside the interim orders passed by this Court dated 4-4-2002 and 10-6-2009, whereby original revision petitioners Nos.2 and 3 allegedly withdrew the civil revision to their extent.
4. Learned counsel for the- petitioners states that in plaint Talbs were not fulfilled in accordance with the requirements of section 13 of the Punjab Pre-emption Act, 1991: that the time, place of knowledge of impugned sale and making of Talb-e-Muwathibat are missing in the plaint; that same is the position in the alleged notice of Talb-e-Ishhad dated 19-1-1994. Learned counsel relying upon "PLD 2007 Supreme Court 302 (Minn Pir Muhammad and another L. Faqir Muhammad through L.Rs and others) and PLD 2008 Supreme Court 559 (Mst. Bashiran Begum v. Nazar Hussain and another" states that findings recorded by the first appellate court are absolutely against the settled law, therefore, the same be set aside being not sustainable under the law.
5. On the other hand, learned counsel for the respondents has halfheartedly argued against this point and remained unable to rebut the contentions raised by learned counsel for the petitioners and case-law referred to by him..
6. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
7. It is well-settled law that for filing a suit to pre-empt a sale, it is incumbent upon the plaintiff to prove Talb-e-Muwathibat i,e, a jumping demand and for proving a jumping demand, he is bound to plead and prove the date, time and place of knowledge of impugned sale and then making of Talb-e-Ishhad without any loss of time in the same Majliss or sitting in presence of the witnesses.
Admittedly, the time and place of knowledge of impugned sale has not been pleaded in the plaint and this fact has also not been mentioned in the alleged notice of Talb-e-Ishhad, because for making Talb-e-Ishhad it is incumbent upon the plaintiff to reiterate his Talb-e-Muwathibat before making Talb-e-Ishhad. All these primary necessities are missing in pleadings and in the alleged notice and the findings recorded by the first appellate, court on issue No,2 is absolutely wrong, therefore, the same are reversed.
7. Now I come to the point of compromise arrived at between Muhammad Tufail and Bashir Ahmad with Muhammad Iftikhar Ahmaddecree holder. The clog attached to a transaction during the pendency of suit is of lis pendent, if otherwise there is no defect in that transaction, the time suit is dismissed, transaction becomes absolutely valid transaction. Admittedly, plaintiff Muhammad Iftikhar Ahmad has not challenged the partial transaction of 104-kanals in favour of Muhammad Tufail and Bashir Ahmad, as he claims to have compromised with these persons and further when Muhammad Tufail and Bashir Ahmad transferred part of property which they purchased during the pendency of suit in favour of Allah Wadhaya through an exchange Mutation No,962 dated 2-12- 1997 and in lieu thereof they have received the property of Allah Wadhaya through Mutation No,220 sanctioned 'in the same date i,e, 2-12-1997. After transferring a part of suit property in favour of Allah Wadhaya, they were not entitled to enter into any compromise with Muhammad Iftikhar Ahmad, plaintiff.
8. Learned counsel for the applicants relying upon "1992 SCM R 1109 (Ashfaq Zai and others v. M.
Abdul Quddus Bihari and others)" has argued that interim orders passed by this Court are subject to just exceptions and also subject to final decision and can be recalled. Further relying upon "1992 SCM R 652 (Mst. Surraya Begum and others v. Mst. Suban Begum and others)" states that the application under Order XXII, Rule 10 of the C.P.C. Can be filed at any time when necessity arises.
Further states that under Order XXIII, Rule 1(4) of the C.P.C, when there are more than one plaintiffs and one of them without permission of others cannot withdraw the suit.
9. Learned counsel for the respondent's states that as Muhammad Tufail and Bashir Ahmad got recorded their compromise statement in this Court and admitted the rights of plaintiff-respondent and prayed for withdrawal of civil revision, therefore, to the extent of 104-kanals land, his rights cannot be negated. Further states that Allah Wadhaya will get back his land which he has given in exchange to Muhammad Tufail and Bashir Ahmad.
10. I have considered the arguments advanced by learned counsel for the parties. Learned counsel for the respondents is unable to answer that when Muhammad Tufail and Bashir Ahmad had already transferred the land in favour of Allah 'Wadhaya, how they were competent to give any statement in favour of Muhammad Iftikhar Ahmad-plaintiff. The contention of learned counsel for petitioners is correct that the first appellate court was bound under the law to decide the application filed by Allah Wadhaya. In this view of the matter, applications under Order XXII, Rule 10 of the C.P.C. (C.M. No,777 of 2002) and under section 12(2) of the C.P.C. (C.M. No,2258 of 2009 and C.M. No,2718 of 2009) are competent before this Court and the same are,. Hereby, allowed. The compromise statement given in favour of Muhammad Iftikhar Ahmad or his legal heirs by Muhammad Tufail and Bashir Ahmad has no value against the rights of Allah Wadhaya.
11. In the light of what has, been discussed above, this civil revision is allowed. The judgment and decree dated 24-11-2000 passed by the first appellate court decreeing the suit is set aside and the suit filed by the respondent-plaintiff (Muhammad Iftikhar Ahmad) shall stands dismissed.