' MUHAMMAD SHAFI SIDDIQUI, J.---The applicants filed a suit to exercise their right of pre-emption in respect of the premises being house on C.S. No. 763 and 764 admeasuring 120-09 sq.Yds situated at Kahi Road Hyderabad. In the first round of litigation Suit No. 138 of 2001 was decreed vide judgment dated 17-5-2003 and decree dated 19-5-2003 which judgment and decree were challenged by the respondents in C.A. No. 214 of 2003 and in terms of the judgment dated 22-8- 2003 two issues were framed as under:--
(1) Whether the plaintiffs have right of pre-emption or over the house as Shafi-e-Khalit and Shafi- e-Jar?
(2) Whether the plaintiffs have made two required Talbs viz. Talb-eMuwas ibat and. Talb-e-Ishhad, according to law?
2. After framing the issues, the case was remanded to the trial Court to decide the same after hearing the counsel for both the parties and recording evidence. Accordingly the evidence on the above crucial issues were recorded and the trial Court vide judgment dated 27-2-2004 was pleased to dismiss the suit of the applicants. The applicants then preferred C.A. No. 69 of 2004 and vide judgment dated 4-3-2005 the appellate court was pleased to dismiss the appeal with no order as to costs.
3. Aggrieved with the judgment and decree of the appellate court passed in C.A. No. 69 of 2004 the applicants preferred this civil revision application.
4. The main contention of the learned - counsel for the applicants is that framing of the issues in the first round of litigation both the applicants recorded their evidence along with two witnesses namely Mir Ahmed alias Meero and Jaindo Soomro and they have satisfactorily established Talb- eMowasibat and Talb-e-Ishhad as required under the law and hence the trial Court as well as appellate court misread the evidence. Learned counsel submits that since the property of the respondent is divided by a common wall and adjacent to the property of the respondent and also on account of the fact that the common drainage is being used in both the premises, the applicants have all the rights to invoke the pre-emption in respect of the premises in question.
5. On the other hand learned counsel for respondents have asserted that at the very outset both the premises are independent and there was no occasion for the applicants to exercise their right of preemption. Both the residential premises are independent and cannot be subjected to preemption. Learned counsel in addition to the above also submits that in the first round of litigation the matter was remanded to record the evidence on one crucial issue as to whether Talb-e-Mowasibat and Talb-eIshhad were satisfactorily established by applicants. On the appreciation of evidence the trial Court as well as appellate held that Talb-e-Mowasibat and Talb- e-Ishhad were not satisfactorily discharged and also found that there are material contradictions in the evidence of both the applicants and their two witnesses. Learned counsel submits that though the trial Court as well as appellate court held that the applicants have a right of pre- emption in a suit property being shafi-e-khalit and shafi-e-jar, however, the issue No.2 which relates to Talb-e-Mowasibat and Talb-e-Ishhad were not proved which is a prerequisite to exercise the right of pre-emption and hence the said issue was decided against them. Learned counsel for respondent submits that they have not preferred any appeal with regard to the finding on issue No.1 as held by the trial Court on account of the final decision and finding of issue No.2, as the suit was dismissed and subsequently the appeal was also dismissed.
6. I have heard the learned counsel and perused the record.
7. Admittedly, the findings on issue No.2 which relates to Talb-e-Mowasibat and Talb-e-Ishhad are challenged before me and the -applicant as well as respondent No.3 recorded their evidence in support of their respective versions. I have very minutely scanned the depositions of two applicants (on whom the burden lies), and two witnesses . The first applicant Muhammad Ramzan stated that the entrance of the above property and drainage system is common, water connection is also alleged to be common. It is also deposed that on 15-2-2001 at about 11-00 a.m. One Mst. Farzana and her maternal uncle opened the lock of the disputed house' and he (applicant) and his brother Pir Bux went towards them and inquired about the opening of the lock on which they were informed by respondent No.3 and his uncle that they have purchased the house on which applicants claimed right of preemption. The two witnesses Jaindo Soomro and Mir Ahmed also came there and they demanded in their presence and they also asked them to be their witness as and when required.
8. In the cross-examination the applicant has deposed as under: - "Outer door of my house opens towards eastern side. Street belongs to Municipal and use for general public. In the north side from my house there is house of Mst. Farzana. Southern there is house of Yousuf It is correct that water charges bill at present comes in the name of Mst. Farzana It is incorrect to suggest that water drainage lane of our street comes towards the main nala and constructed by HMC. It is correct that HMC constructed the drainage lane of our street. It is. Correct that drainage lane not belongs to me It is correct that there, is room between my house and house of defendant. It is incorrect to suggest that common wall is separate It is incorrect to suggest on 15-2-2001 my brother was on duty.
9. Similarly other applicant namely Pir Bux in his examination-in-chief has deposed as under:-- "I and my brother Muhammad Ramzan inquired from Mst. Farzana, and Nisar on which they replied that they have purchased the above property, immediately we claimed our right of pre-emption and asked them to give the said property to us by sale. We were present there and Jaindo Soomro and Meero came there. I requested them to witness, in present of both the witnesses I demanded talbs from Mst. Farzana that we have right of pre-emption upon the suit property.
10. In the cross-examination the said applicant Pir Bux deposed as under:-- "It is correct that on 15-2-2010 I was on duty. Vol: says that we used to go sometime within time and sometime in late hours. It is correct that in our office I had not submitted application on 15-2-2001 that I reached in office with late. It is correct that as per record of our office I was on duty from 9-00 a.m. To 4-00 p.m. My brother Muhammad Ramzan have a mobile show-room of Motorcycles and Rickshaw. I know Mst. Farzana since last 5/6 years It is correct that after purchase of suit property by Mst. Farzana. I did not enter in the suit property till today It is correct that door of My house and door of suit property open in same street. It is correct that there is drainage system one and same of the 8/9 houses, constructed by HMC. I have not remembered the day on which I demanded the talbs i.e. 15-2-2001. Meero resides in same mohallah he is not government employee. I meet with Mst. Farzana only one time on 15-12-2001....I demanded talbs from Mst. Farzana two times first time I and my brother and second time when two P. Ws Mir and Jaindo Soomro came then I demanded talbs from Mst. Farzana It is correct that drainage system of my house and suit property is separate but comes in one and same lane/Nali. It is incorrect to suggest that after purchase of suit property Mst. Farzana got it repaired. It is correct that my brother Muhammad Ramzan submitted application against Mst. Farzana in HDA Department Hyderabad. Regarding illegal construction."
11. Similarly the witness Mir Ahmed alias Meero in his examination-in-chief has deposed as under:-- "I and Jaindo Soomro were going when reached near the house of plaintiffs where we saw that plaintiffs were talking with Mst. Farzana and Nisar Memon."
In the cross-examination the said witness deposed as under:- "The drainage Nali of the suit property and property of plaintiff is one and same but goes towards other houses i.e. At least 5/6 houses, also constructed by ITMC Jaindo Soomro is my friend. Plaintiffs are my neighbourer and I know them since last 25/30 years I have not seen the disputed property inside as I did not enter in the suit property, I have no knowledge whether compound wall of the house of suit property belongs to Mst. Farzana or not I have not remembered the day of 15-2-2001."
12. Similarly the witness Jaindo Soomro in his examination-in-chief has also deposed as under:-- "The plaintiffs have not made any demand from Mst. Farzana-iir my presence"
In the cross-examination the said witness deposed as under:-- "It is correct that on 15-2-2001 I did not meet Mst. Farzana at the door of her house (disputed property). It is correct that I did not witness with Miro regarding, demand of pre-emption as well as plaintiffs. It is correct that till today I did not meet with Mst. Farzana".
13. In para-7 of the plaint it is mentioned that the defendants entered in the suit property and the applicants/plaintiffs also went inside the suit property whereas neither in the examination-in-chief nor in the cross-examination such facts were deposed whereas categorically Mir Ahmed alias Miro in the cross-examination also admitted that they have not seen the disputed property from inside and that they did not enter in the suit property.
14. The other witness namely Jaindo Soomro has totally refused to have witnessed the alleged demands/talbs of applicants. In fact he denied to have seen the respondent No.3. This witness of applicants has totally destroyed the case of applicants.
15. On the other hand one Nisarul Haq has recorded evidence in consonance with the written statement filed by the respondent No.3 who was also subjected to cross-examination but nothing material came out. Though the burden of this crucial issue i.e. Talb-e-Mowasibat and Talb-eIshhad is on the applicant but they have failed to discharge this obligation. The trial Court as well as appellate court after considering the evidence recorded have given their findings that Talb-e- Muwasibat and Talb-e-Ishhad were not satisfactorily proved.
16. In the case of Muhammad Lokman Mondal v. Amir Ali Mondal (PLD 1969 Dacca 64), the Bench held as under:-- "Mr. Chowdhury's contention is that there is neither evidence, nor any finding to the effect that while making Talb-e-Ishhad, reference was made to Talb-e-Mowasibat, and the absence of evidence is fatal to the plaintiffs' case for preemption.
' Mr. Mottalib, learned counsel for the respondents who has presented his clients case with fairness submits that while making the Talb-e-Ishhad express reference to Talb-e-Mowasibat was, in fact, made and the witnesses, have deposed to that effect.
' Mr. Chowdhury has placed the judgments of the courts below. It is found that no reference has been made to this requirement. Requirement of making reference to Talb-e-Mowasibat while making a Talb-Ishhad is set out in Mulla Principles of Mahomedan ' Law at. Page 221 in the following terms:- "Demands for pre-eniption.---No person is entitled to the right of pre-emption unless---
(1) he has declared his intention to assert the right immediately on receiving information or the sale. This formally called Talb-eMowasibat (literally, demand of jumping, that is, immediate demand): and unless,
(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the Talb-e-Mowasibat had already been and has made a formal demand (a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale, and
(b) in the presence at least of two witnesses. This formality is called talb-e-Ishhad (demand with invocation of witnesses).
' It will, therefore, be seen that after having made Talb-e-Mowasibat, the pre-emptor has to affirm his intention with the least practicable delay referring expressly to the fact that Talb-e-Mowasibat had been made. It, therefore, requires the pre-emptor to make an expresi reference to Talb-e- Mowasibat. In this case there is no finding, nor any evidence has been pointed out to me that a reference was made to Talb-e-Mowasibat while making Talb-e-Ishhad. This omission at the time of making the Talb-e-Ishhad is indeed fatal to the claim of preemption.
' In the present case the plaintiff have neither claimed nor adduced evidence to the effect that at the time of making the second demand a reference was made to the first demand. That being so, I am of opinion that the plaintiffs are not entitled to claim pre-emption and the learned Courts below erred in law in not directing their attention to this question.
17. Similarly, in the case of Mukhtiar Hussain v. Sohbat Ali (2011 SCM R 1926), the honourable Supreme Court has held as under:-- "In paragraph No.4 of the original plaint the appellants' predecessor had asserted that the respondents had repeatedly been asked to recognize the right of pre-emption of the appellants' predecessor and to hand over possession of the relevant property to him upon receiving from him the actual amount of consideration but the respondents had refused to do the same about one week prior to the filing of plaint. That averments in the plaint had been asserted by the respondents in their written statement to be incorrect and the same had been denied. No detail of any such demand had been provided in the plaint nor any evidence in that respect was produced by the appellants' predecessor before the learned trial Court in the first round of litigation. It was only in the third round of litigation that the appellants had produced Sultan Muhammad (P.W.6) before the learned trial Court in support of their assertion regarding making, of Talb-e-Ishhad by their predecessor and the said witness had only made an oral assertion in that respect which oral .Assertion had, in turn, been denied and contradicted orally by the respondents. Admittedly no independent 'verification or confirmation of the facts orally asserted by Sultan Muhammad (P.W.6) was made available on the record of these cases by the appellants and, admittedly again, the said Sultan Muhammad (P.W.6) had not found any mention in paragraph No.4 of the original plaint.
There was no denying the fact that the said Sultan Muhammad (P.W.6) was a close relative of the original plaintiff, and, thus, his belated appearance on the scene in support of making of Talb-e- Ishhad by the original plaintiff was not free from legitimate doubts. The oral testimony of the said witness before the learned trial Court for the first time in the third round of litigation was denied and contradicted by the respondents orally and we have found nothing on the record to convince us to prefer the oral testimony of that witness over that of the oral testimony of the respondents. In this view of the matter a conclusion is irresistible and inescapable that the appellants had failed to convincingly and conclusively establish making of Talb-e-Ishhad by their predecessor and, thus, the mandatdry requirement of subsection (2) of section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 as well as of subsection (2) of section 35 of the Punjab Pre-emption Act, 1991 had not satisfactorily and adequately been fulfilled by the appellants in the present cases.
18. Similarly, in the case of Muhammad Azeern v. Shabbir Hussain (2009 SCM R 366), the honourable Supreme Court has held as under:-- "2. The learned counsel argued that from the evidence on record it was clearly proved that the petitioner had duly prolonged requisite Talbs. It was also established that the petitioner had made Talb-eMuwathibat the very moment he had come to know about the sale of the suit properties.
(3) We have heard the learned counsel at length and have also perused the available record. The High Court and the Courts below have recorded concurrent findings of fact after properly appreciation of evidence on record, that the petitioner had failed to prove the performance of Talbs as required by the provisions of Punjab Preemption Act, 1991. We are not expected to reappraise the evidence for the purpose of coming to ,a different conclusion without their being any exceptional circumstances. The impugned-judgment is plainly correct to which no exception can be taken."
19. In the instant case also the two talbs which are in fact prerequisite in order to enforce the right of pre-emption are not satisfactorily discharged and proved regarding which a specific issue was framed. The burden of this issue is on the applicants and they have not been able to prove, through their witnesses. In fact their versions are totally contradictory to each other, which has destroyed the case of applicants.
20. In view of the judgments cited above, I see no reason to interfere with the judgments and decrees given by the trial Court as well as by the appellate court and only on account of the fact that the on account of reappraisal of evidence some other view may be possible I am not inclined to reappraise the evidence hence in view of the above facts, I dismissed this civil revision application by short order dated 24-9-2013 and these are the reason for the same.