1. ' Judge on 31-10-1973 on the ground that at the time of making second demand the pre-emptor had not made any reference of first demand of pre-emption and also that the suit for pre-emption was incompetent because it was for partial pre-emption leaving aside Survey No, 223 which had been sold to the present respondents by the same sale deed by Abdul Ghaffar.
2. ' The learned Additional District Judge reversed the decree on issues Nos. 2, 5 and 6. The learned Additional District Judge held that the witness Ismail was present at the time of the first demand therefore, it was not necessary for the plaintiff to assert at the time of second demand in the presence of the respondents that he had made the first demand. The learned A.D.J. has not supported his view by reference to any decision although a case reported in PLD 1969 Dacca 64 was before him in the form of a reference to it by the trial Court. In the cited decision it had been held that at the time of making the second demand two witnesses were essential and that specific reference to the first demand having been made by the pre-emptor was also essential. I do not find any justification in the order of the learned A.D.J. in having come to the conclusion that P.W.
3. Ismail was present at the time of making of first demand. The plaintiff Yousuf had never stated that Ismail was present either on the first day viz. :20-10-1972 when he made the first demand of pre- emption or even on second day viz. 21-10-1972 when he repeated the demand of pre-emption from Ramzan and, therefore, P.W. Ismail should have been disbelieved that he was present at the time of making the first demand. To this extent the judgment of the learned A.D.J. is found to be wrong.
4. Moreover, I find that the plaintiff in his evidence did not state that at the time of second demand having been made by him on 20th October, 1972 that he had referred to the first demand having been made by him. In this view of the matter the second demand was not in accordance with the law and the suit had been rightly dismissed by the Civil JUdge. Therefore, the decree and judgment of the learned A.D.J. was uncalled for and is, hereby set aside. Mr. Imam Ali Kazi was to able to find out any decision contrary to PLD 1969 Pesh.
5. 64.
6. ' Mr. Abdul Ghaffar had also submitted that partial pre-emption was not possible in view of the fact that the sale-deed was in respect of the Survey numbers while the pre-emption was only in respect of survey No,- 212. This submission is however, not absolutely correct. Mr. A .Ghaffar is quite right to the extent that ordinarily the pre-emption must be claimed in respect of the whole property' sold but a pre-emptor whose right of pre-emption extends to or affects a part only of the subject of sale, may on payment of a proportionate part of the consideration for sale, claim to pre- empt such part alone. This proposition as concisely put by me above is supported by paragraph 540 page 703 of Muhammadan Law .by F.Et. Tyabji (1940 edition). Mr. Abdul Ghaffar has cited PLD 1970 SC 299 in this respect but the same principle is enunciated in that judgment by M.R. Khan, J. and the following, portion from page 308 of the said judgment would be enough to substantiate my view:- "Suffice it to say by way of example that a pre-emptor is not bound to seek pre-emption of the whole of the property sold and pay the full sale price if his right of pre-emption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not."
7. ' Contention of the applicant in respect of partial pre-emption, therefore, fails.
8. ' In these circumstances this Revision Application is allowed and the judgment and decree of the Additional District Judge dated 11-10-1975 is hereby set aside.