' The land in suit measuring 45 Kanals 16 Marlas bearing Khasra number 1218 situate in village Matra, Tebsil Batagram, with share of shamilat was sold by Suba Khan, Bazmir and Qadar in favour of Ali Zaman (respondent) and the sale mutation bearing No, 148 was attested on 5-3-1974. The sale was pre-empted by Samundar Khan, Jahangir Khan and Muhammad Aslam (petitioners). The learned Civil Judge, Batagram dismissed the suit on 31-1-1976 holding that although talab-i- mowa,ibat was made by the pre-emptors but there was nothing on the record to show that talab- i-ishhad was also made by them which was an essential pre-requisite for the exercise of the right of pre-emption. In this view of the matter the petitioners were not held entitled to the pre-emption decree.
2. The plaintiffs (petitioners) feeling aggrieved filed an appeal before the learned District Judge, Mansehra, but their appeal also failed vide order dated 19-10-1977. The learned District Judge affirmed the finding arrived at by the trial Court. Hence this revision.
3. The learned counsel for the petitioners contends that there was enough material on the file to show that both the pre-conditions i. e. talab-imowasibat and talab-i-ishhad were complied with and the evidence produced by the plaintiffs being sufficient the lower Courts should have passed the decree in their favour. The learned counsel also contends that in para. 4 of the plaint it was mentioned that before the institution of the suit the vendee was asked to transfer the property in favour of the plaintiffs by admitting their superior right of pre-emption but the vendee refused to do so. In the written statement the vendee had not denied the factum of demand so made by the plaintiffs and stated that he had rightly refused the demand of the plaintiffs. According to the learned counsel the averments made in para 4 of the plaint would amount to the making of the necessary demand as envisaged under the Muslim Law and since the correctness of para 4 has not been denied therefore, the presumption would be in favour of the plaintiffs that the preconditions for filing the suit have been satisfied.
4. It is not disputed by the learned counsel for the parties that N.-W., F. P. Pre-emption Act, 1950 has not been extended to the newly settled area of Batagram and therefore, the case has to be dealt with under the Muslim Law of Pre-emption.
5. It is evident that in para. 4 of the plaint it has not been specifically mentioned that both the pre- requisite demands of talab-l-mowasibat and talab-i-ishhad were made by the plaintiffs in accordance with Muslim Law. The only averment in the said para. Is that the demand made from the vendee for the transfer of the land in their favour was refused by him. This averment would not prove that in fact both the demands were duly made in the manner recognized by Muslim Law of pre-emption. In this view of the matter the mere fact that the contents of para. 4 of the plaint were not specifically denied in the written statement would not lead to the inference that the two conditions which are pre-requisite for tiling a pre-emption suit were duly complied with by the plaintiffs.
6. So for as the question of tolab-i-mowasibat and talab-i-ishhad is concerned there is no doubt that according to Muslim Law both the demands can be joined together. However, in the evidence produced by the plaintiffs (petitioners) there is nothing to prove that both the demands were either put forward together or talab-i-mowasibat was made earlier which was succeeded by talab-i- ishhad. Nader Khan attorney of the plaintiffs stated that when the plaintiffs came to know of the sale mutation they atone declared their intention to pre-empt the sale in the presence of this witness where Janas Khan Lambardar, Shah Rozam Khan and few others were also present. After that a Jirga was also sent to the vendee in this regard but he refused. However, in cross- examination he said that when the sale mutation was being attested in village Kooza Banda, the plaintiffs were also present where they expressed their intention to pre-empt the sale and a Jirga was also held there. Janas Khan tPW 3) stated that on 5-3.1974 when the sale mutation was attested at village Kooza Banda the plaintiffs and the sellers were present where the plaintiffs declared their intention of pre-empting the sale. He also stated that the sale mutation was attested at village. Kooza Banda but in the mutation the place was shown as village Soofian by the Revenue Officer after consultation with the Patwari. It may be noted that the Patwari when examined as a witness by the plaintiffs was not questioned to prove that the mutation was infact attested in village Kooza Banda and not in village Soofian. Nor the Revenue Officer has been examined in this regard. Shah Rozam Khan (P. W. 4) also deposed that the plaintiffs expressed their desire of pre-empting the sale at the time of the attestation of the sale mutation. He is, however, silent as to the Jirga which has been referred to by Nadar Khan and Janas- Khan P. Ws. This witness is very closely related to the plaintiffs. This is the entire evidence produced by the plaintiffs in the support of their plea that both the conditions of talab-i-mowasibat and talab-i-ishhad were complied with before the institution of the suit. Obviously the witnesses have not spoken the truth.
Firstly because the sale mutation was attested at village Soofian and not at Kooza Banda as is evident from the copy of the mutation. There is nothing on the file to show that the Revenue Officer had dileberately misdescribed the place of attestation of the sale. Secondly in the order of attestation dated 5-3-1974 the presence of the plaintiffs or the sellers has not been recorded because the statements of the sellers had already been recorded on 7-12-1973 and 20-2-1974. In this view of the evidence it cannot be said that the pre-conditions of talab-i-mowasibat and talab-i-ishhad were with by the plaintiffs before filing the present suit.
7. In the Muslim Law of pre-emption no person is entitled to the right of pre-emption unless he has declared his intention to assert the right immediately on receiving information of the sale. This declaration is called talab-i-mowasibat. Similarly talab-i-ishhad was to be made by the plaintiffs in the presence of the vandee or the vendors on the premises which was the subject-matter of the sale and also in the presence of at least two witnesses. It is not denied that talab-i-ishhad was not made on the premises which is the subject-matter of the sale. Nor is there any evidence to prove that it was made in the presence of the sellers or the buyer. According to Janas Khan (P. W. 3) the vendee was at the Karachi during those days and it is evident from the copy of the mutation that the sellers were also not present when the sale mutation was attested on 5-3-1974. The presence of two witnesses at the time of making of talab-i-ishhad has also not been convincingly established.
8. The learned counsel for the petitioners contends that the pre-conditions of tutab-i-mowasibat and talab-i-ishhad were mere formalities and could be inferred from the circumstances of the case. However, it may be mentioned that under the Muslim Law the formalities are to be strictly observed and there should be clear proof of their observance. The law requires that on gaining knowledge of the sale talab-i-mowasibat should be made with promptitude and as soon as possible because even a slight delay in making the italib' would defeat the right of pre-emption. In the present case there is no convincing evidence as to how and when the plaintiffs got knowledge of c the sale and whether talab-i-mowasibat was declared by them without loss of any time.
Similarly the plaintiffs have also failed to prove that the requirements of talab-i-ishhad were duly complied with before the institution of the present suit.
9. In this view of the matter no fault can be found with the concurrent finding arrived at by both the learned Courts below: Nor they appear to have acted illegally or with material irregularity in the exercise of their jurisdiction.
10. This revision being without any merit is accordingly dismissed. However, the parties are left to bear their own costs.