' AMIN-UD-DIN KHAN, J.---Through this appeal, the appellants have challenged the judgment and decree dated 12-11-2009, passed by the learned Civil Judge, Sialkot, whereby suit for preemption filed by the plaintiffs/appellants was dismissed.
2. Brief facts of the case are that the plaintiffs/appellants on 12-1-2004, filed a suit to pre-empt the sale of land in favour of the defendant/ respondent through registered Sale-deed No. 6353, dated 29-9-2003. Written statement was filed, suit was contested and the learned trial Court vide judgment and decree dated 12-11-2009, dismissed the suit on the basis of findings on Issue. 2, which is ' with regard to Talbs and decided all other issues in favour of the plaintiffs/appellants, hence, this appeal by the plaintiffs/ appellants and cross-objections by the defendant/vendee.
3. Learned counsel for the plaintiffs/appellants argues that the findings recorded by the learned trial Court on Issue No.2 are against law and facts of the case; that the minor contradictions in the statements of the witnesses are ignorable and further that when one of the plaintiffs appeared in the witness, box it was sufficient compliance of section 13 of the Punjab Pre-emption Act, 1991, but the learned trial Court has wrongly recorded findings against the plaintiffs/appellants and dismissed the suit.
4. On the other hand, learned counsel for the respondent/defendant argues that the findings recorded by the learned trial Court on Issue No.2 are absolutely in accordance with the settled principle of law, therefore, prays for dismissal of the appeal.
5. We have heard the learned counsel for the parties at length and have also gone through the record. We have noticed that in the plaint the plaintiffs/appellants have mentioned the time of knowledge of the impugned sale on 24-12-2003, at 10-11 a.m. In the Factory Ittefaq Registered Works, Sialkot. Same is the position mentioned in notice of Talb-e-Ishhad, which has been produced as Exh.P-3, as well as in the statement of P.W.3, one of the plaintiffs who appeared as his own witness. Second point is that one of the plaintiffs appeared as a witness when he was having, no power of attorney on behalf of other plaintiff.
6. First we take the crbss-objections. The respondent was served in appeal on 10-4-2010, he filed power of attorney in the appeal on 7-5-2010 and cross-objections were filed on 22-6-2010. Learned counsel for the appellants has raised objection that the cross objections have been filed after the prescribed period of limitation. Learned counsel for the objector states that admittedly the cross- objections have been filed after the prescribed period of limitation and further states that he does not press these objections. These have been filed in order to inform the appellants that the respondent of the appeal will argue the case against the findings recorded against the vendee/defendant, therefore, in these circumstances the main issue for determination is Issue No.2. In accordance with section 13 of the Punjab Pre-emption Act, 1991, before filing of suit of preemption the plaintiffs are required to perform Talb-e-Muwathibat and Talb-eIshhad in accordance with law. For proving Talb-e-Muwathibat plaintiffs are required to state exact date, time and place of gaining knowledge because without proving the specific time, date and place of knowledge the plaintiffs cannot prove jumping demand. When the plaintiffs prove that on such date at such specific time and place they gained the knowledge only then they can prove that they forthwith announced their intention to file the suit for preemption which is called jumping demand. In this case as we have noticed that there is difference of at least one hour as pleaded by the plaintiffs themselves with regard to gaining knowledge of the impugned sale and same is position of Talb-e-Muwathibat as the plaintiffs themselves have pleaded that at 10-11 a.m. They gained the knowledge of the sale, therefore, as there is A difference of at least one hour in the time of gaining knowledge, therefore, when.Time is not specific the demand cannot be said to be jumping demand as there is difference of one hour in the timing stated by the plaintiffs themselves.
In this regard we can take light from the judgment of the Honourable Supreme Court reported as Mian Peer Muhammad and another v. Faqir Muhammad through L.Rs and others (PLD 2007 SC 302). In this view of the matter, the plaintiffs failed to plead and prove the specific time of gaining knowledge and jumping demand, therefore, they have not proved Talb-e-Muwathibat in accordance with law.
7. So far as appearance of one of the plaintiffs in the witness box is concerned, we were of the view that the announcement of intention to pre-empt the sale is a personal act and same can be proved only if each and every plaintiff appears before the B Court or one of the plaintiffs appears and makes statement on his behalf and further if he is attorney of the other plaintiffs only then he can prove jumping demand on behalf of other plaintiffs but the learned counsel for the appellants has produced a photo copy of certified copy of the judgment dated 20-10-2011, of the august Supreme Court of Pakistan passed in Civil Appeal No.1487 of 2006, titled Muhammad Ishaque and others v. Muhammad Usman, para 7 of which is reproduced for ready reference:-- "One of the five plaintiffs, who were brothers inter se, had testified in support of the contents of the plaint and the making of Talb-eMuwathibat. It is more than settled that in a joint suit all the plaintiffs need not take the witness stand. The emphasis by the three Courts as well as by the learned counsel for the respondent was that all the plaintiffs must testify in order to prove Talb-e- Muwathibat. The Talb may be a matter personal to the pre-emptor but is not based on personal information or depicts a particular state of mind which might he probed into. It is only an open verbal response, the law mandates him to make upon receiving information of sale. The law only requires that the declaration must be proved. It can be proved by anyone who heard the pre- emptor making it. Article 71 of the Qanun-e-Shahadat Order, on which reliance was placed by the learned counsel for the respondent- provides that oral evidence must be direct and that " if it refers to a fact which could be heard, it must be by the evidence of a witness who says he heard it". There were three witnesses who had- heard the four plaintiffs, other than P.W. 1 declaring their intention to pre- empt the sale, namely, P.W.1, Muhammad Ishaque, P.W.2, Suleman Khan and P.W.3, Muhammad Yaqoob. Even if the argument of the learned counsel for the respondent that a plaintiff/ plaintiff must appear in the witness box to prove ,Talb-e-Muwathibat is accepted valid, the argument would not be relevant in the present case when one of the plaintiffs had appeared to testify the making of Talb by all the plaintiffs in the same meeting".
' We bow before the judgment of the august Supreme Court, therefore, the findings of the learned trial Court to this extent that each and every plaintiff was required to appear is not sustainable under thelaw. All other findings on Issue No.2 recorded by the learned trial Court are in accordance with law, therefore, the game are confirmed.
' In view of what has been discussed above, we see no force in this appeal and the cross objections, therefore, same are dismissed, leaving the parties to bear their own costs.