' AMIN-UD-DIN KHAN, J.---Through this appeal, appellants have challenged the judgment and decree dated 19-3-2005 passed by the learned Addl: District Judge, Gujranwala, whereby the appeal filed by the respondent-defendant was accepted, by way of which, judgment and decree dated 20-1-2004 passed by the learned Civil Judge 1st Class, Gujranwala decreeing the suit for pre-emption filed by the appellants-plaintiffs, were set aside.
2. The brief facts of this case are that appellants-plaintiffs along with one Qutub Din on 17-11-1999 filed a suit to pre-empt the sale of land through Mutation No.757 attested on 19-7-1999. The plaintiff Qutub Din opted to withdraw the suit to his extent and his name was deleted vide order dated 28- 11-2000 from the array of plaintiffs. The written statement was filed and suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. Learned trial court vide judgment and decree dated 20-1-2004 decreed the suit. Learned first appellate court vide judgment and decree dated 19-3-2005 while accepting the the suit. Hence, this second appeal.
3. Learned counsel for the appellants-plaintiffs state that in the connected Civil Revision No.1675 of 2005 which has been decided today, 02-kanals 04-marlas land was sold in favour of present respondent, which too was pre-empted but failed up to this Court; that the learned first appellate court finding that upon said sale suit was filed after the prescribed period of limitation and judgment and decree passed in case in hand in favour of appellants-plaintiffs by the learned trial court being not sustainable under the law were set aside on the ground that vendee-defendant has become co-sharer. Argues that by dismissal of the connected suit which was with regard to the land situated in other Khatas, the judgment and decree passed by the learned first appellate court are not sustainable under the law.
4. On the other hand, learned counsel for the respondent-defendant states that neither the Talbs were proved nor the superior right was proved by the appellants-plaintiffs, therefore, learned first appellate court has rightly accepted the appeal and set aside the consolidated judgment and decrees passed by the trial court in both the cases.
5. I have heard the learned counsel for the parties at full length and also gone through the record as well as the findings recorded by both the courts below.
6. Though the learned first appellate court only finding that the other suit for pre-emption filed by the appellants-plaintiffs has been dismissed, therefore, this suit also fails. I have noticed that neither the learned first appellate court has discussed the findings of trial court with regard to Talbs nor confirmed or reversed the same. The lis in hand started in the year 1999 and more than one and half decade has already been passed, therefore, remanding the matter to the learned first appellate court will not serve any purpose. I intend to decide the same on merits by scrutinizing the evidence produced by the parties. It is regular second appeal and this Court has powers to decide the same on merits.
7. Originally the suit was filed by three plaintiffs, afterwards plaintiff No.1 Qutub Din withdrew the suit to his extent on 28-11-2001. The prayer was made by all the three plaintiffs for decree of suit and Talb-e-Muwathibat and the alleged Talb-eIshhad were made jointly. None of the plaintiffs has claimed the full suit property, they jointly claimed the suit property. When one of the plaintiffs withdrew the suit to his extent and suit filed by three plaintiffs jointly presumably claiming 1/3 of suit property by each plaintiff, therefore, the suit remains to the extent of 2/3 of suit property which is partial pre-emption, that is not permissible under the law. As such the suit will automatically stand dismissed. In this view of the matter, this suit was liable to be dismissed. The learned trial court has wrongly decreed the suit.
8. Further I have noted that the alleged notice of Talb-e-Ishhad Exh.P-2, photocopy of said notice has been produced which is very dim one. It shows that with regard to sale of 2-kanals 4-marlas of land this notice has been issued, which was the subject matter of other suit. In this suit the suit land is admittedly 98-kanals, therefore, it cannot be said that the plaintiffs have fulfilled Talb-e-Ishhad.
9. For proving the jumping demand it is necessary that date, time and place of knowledge of impugned sale be pleaded in the plaint as well as notice of Talb-e-Ishhad and proved through evidence. P.W.2 one of the plaintiffs states the place of knowledge as Tube-well, not deposed about the time of knowledge of impugned sale. P.W.3 the other plaintiff has not stated the time and place of knowledge of impugned sale. The alleged Informer has not mentioned the time of information.
P.W.5 and P.W.6 have not mentioned the time and date. In pleading the place of knowledge is mentioned as Dera of plaintiff, whereas in the statements of some of the witnesses it is mentioned as Tube-well. In this view of the matter, the plaintiffs-appellants failed to prove Talb-e-Muwathibat.
Light can be taken from the celebrated judgment of august Supreme Court of Pakistan reported as "PLD 2007 Supreme Court 302 (Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs.
And others)."
10. In , the light of what has been discussed above, the plaintiffs-appellants have not been able to prove Talb-eMuwathibat and Talb-e-Ishhad in accordance with law. Resultantly, this appeal fails. It is hereby dismissed.