' QAISER RASHID KHAN, J.---Aggrieved of the judgments and decrees of the learned courts below, whereby the pre-emption suit of the petitioners was concurrently dismissed, the present revision petition has been preferred.
2. Brief facts leading to the instant revision petition are that Col. (Retd) Anwar Hussain (now dead and represented by his legal heirs) filed a suit for possession through pre-emption against the respondent/ defendant namely, Mst. Tasleem Bibi for possession through preemption in respect of landed property measuring 9 Marlas situated on North Circular Road D.I.Khan and detailed in the heading of the plaint by alleging that the suit property was the ownership of one Faridullah Khan who sold the same to the respondent/ defendant through Wasiqa No, 573 dated 16-3-2004 for a sale consideration of Rs,10,00000 but in order to defeat the right of pre- emption of the petitioner/plaintiff on the basis of contiguity, immunities and appendages to the suit land, an exaggerated amount of Rs,28,00000 was entered in the deed; that the petitioner/ plaintiff got knowledge about the suit transaction on Monday, 26-4-2004 at 06:00 pm at his Baithak through Haji Nadir Ali Durrani and he immediately declared his intention to pre-empt the suit property and thereafter on 27-4-2004 sent notice Talb-e-Ishhad to the respondent/ defendant attested by two witnesses namely, Haji Nadir Ali Durrani and Syed Abid Hussain Shah Bukhari and on the refusal of the respondents/ defendants to receive the sale consideration and surrender the suit property, therefore, the suit.
3. On being summoned, the respondent/defendant contested the suit by filling her written statement and out of the divergent pleadings of the parties as many as 12 issues were framed including relief and after a full dressed trial, the suit of the petitioners/ plaintiffs was dismissed vide judgment and decree of the learned Civil Judge-VIII, D.I. Khan dated 29-11-2010. Appeal preferred there against by the petitioner/ plaintiff before the learned Appellate Court also met the same fate vide judgment and decree dated 20-4-2011 of the learned Additional District Judge-V, D.I. Khan, hence the present revision petition.
4. Learned counsel for the petitioners argued that the judgments and decrees of the learned courts below are against law and facts and based on misreading and non-reading of evidence and wrong application of law; that the petitioners' predecessor proved the performance of Talbs in accordance with section 13 of the N.W.F.P. Pre-emption Act, 1987; that the right of pre-emption is heritable as per section 16 of the N.W.F.P Pre-emption Act, 1987 and the judgments of the august apex court are distinguishable from the facts of the instant case; that the statements of the witnesses were recorded after a lapse of more than six years, therefore, minor contradictions are natural which have been wrongly taken into consideration by both the courts below while non- suiting the petitioners.
5. To the contrary, learned counsel for the respondent/defendant defended the impugned judgments and decrees of the learned courts below and while refuting the arguments advanced by the learned counsel for the petitioners argued that the plaintiff died during the pendency of the suit and as his legal heirs had no right of pre-emption on the date of sale, therefore, they were not entitled to the decree for pre-emption; that during the pendency of the suit, the plaintiff Anwar Hussain died, therefore, the performance of Talbs could not be proved and thus the learned courts below rightly non-suited the petitioners.
4(sic) I have heard the learned counsel for the parties and perused the record of the case.
5(sic) In the first hand it would be more apt to revert back to section 13 of the N.W.F.P. Pre-emption Act, 1987 which envisages that the right of pre-emption of a person shall be extinguished unless he makes demands of pre-emption in the following manner, namely:--
(i) Talb-e-Muwathibat, i,e, immediate demand by a pre-emptor in the same sitting/majlis where he came to know about the sale transaction declaring his intention to exercise of his right of preemption;
(ii) Talb-e-Ishhad, i,e, demand by establishing evidence and,
(iii) Talb-e-Khasumat, i,e, demand by filing a suit.
6. In the instant case, Col. (Retd.) Anwar Hussain, since deceased, as per the contents of the plaint came to know above the sale transaction on 26-4-2004 at 06:00 p.m. At his 'Baithak' through informer, Haji Nadir Ali Durrani and he accordingly performed Talb-e-Muwathibat and on 27-4- 2004, he issued notice Talb-e-Ishhad to the respondent/ defendant lady through registered post under A.D cover duly attested by two witnesses namely, Haji Nadir Ali Durrani and Syed Abid Hussain Shah Bukhari. The suit was instituted way back on 29-5-2004. However, before the plaintiff could appear in the witness box in support of his preemption claim, he left this world for his eternal abode on 19-12-2006 and not only left his legal heirs in a state of bereavement but his death also sounded a death knell for his pre-emption suit.
' Ali Akbar Abbas, son of the deceased plaintiff appeared before the learned trial court and recorded his statement as P.W.7 for himself as well as the special attorney for the other legal heirs.
He stated about the death of his father on 19-12-2006 and that having been informed about the pre-emption suit by his deceased father. Since not a witness of the performance of Talb-e- Muwathibat and Talb-e-Ishhad by his father, PW7 relied on the information so passed on to him by his deceased father when he was still alive.
' The informer namely, Haji Nadir Ali Durrani, claiming to be the friend of the deceased lived up to his friendship and came over to the witness box as P.W.5 to throw some weight behind the claim of the legal heirs of deceased Anwar Hussain. However, he was unable to prove the Majlis and its composition and his statement could at best be termed as a far cry in the wilderness. This is just one aspect of the case.
7. Now coming to the misfortune which befell the present petitioners being the legal heirs of deceased Col. (Retd) Anwar Hussain when despite the best efforts of their father to assert both Talb-e-Muwathibat and Talb-e-Ishhad in his plaint, still he could not survive to see his dream come true through the success of his pre-emption suit and left his legal heirs to pursue the same with the latter little knowing that the right of pre-emption is not a heritable one and it extinguishes with the death of the pre-emptor. This is what has been held by the august apex court in several cases. In case titled "Aziz-ur-Rehman and others v. Muhammad Nawaz" (PLD 1988 SC 384), it has been held that the right to pre-empt was not heritable, therefore, sale cannot be pre-empted. In "Muhammad Younas v. Khushal" (1989 SCM R 69) it was held that preemptor who had no right on the date of sale could not improve his right after the sale by inheritance as the cause of action had already come into existence and subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action. The same view was followed by the august apex court in the case titled "Muhammad Ishaq v. Muhammad Sadiq" (2007 SCM R 1478) wherein too, the original pre-emptor had died during the pendency of the suit and his legal heirs were impleaded as pre-emptors. The august apex court held that preemptor who had no right on the date of sale could not improve his right after the sale by inheritance as cause of action had already come into existence and that subsequent qualification by inheritance could not vest the pre-emptor with superior status after accrual of cause of action and such pre- emption suit must fail as the pre-emptor lacked the necessary qualification on the date of sale and that son of deceased pre-emptor had no right on the date of sale and thereafter to pre-empt the same by inheritance and he could not improve his qualification to have such right, if any, enforced after the sale. Similarly in Malik Ghulam Nabi and others v. MBR-III, Board of Revenue and 5 others (PLD 1990 SC 1043) it was held that the right to sue extinguishes after the death of the preemptor and the suit cannot be prosecuted by the heirs of the deceased pre-emptor. In "Nazir Hussain and others v.
Mushtaq Ahmad (deceased) through legal heirs and others" PLD 2010 SC 1048 the august apex court has held that right of pre-emption codified under section 5 being a personal right is not heritable right and it would not survive the death of pre-emptor and would die with the death of the pre-emptor. It was further held that suit filed by the pre-emptor, during his life time cannot continue after his death by his legal heirs unless the said heirs or anyone of them was/ were possessed of a right of pre-emption independent of the pre-emption right of the deceased pre- emptor.
' In view of the above cited case law, the legal heirs of the deceased could not continue with the prosecution of the pre-emption suit initiated by their late father and to borrow something from Shakespeare's celebrated tragedy Julius Caesar, the pre-emption suit of deceased Col. (Retd.)
Anwar Hussain was "interred with his bones".
' In view of the foregoing discussion, the instant petition stands dismissed.