' Briefly the facts are that the respondent claiming to be the Shafi-e-Jar and Shafi-e-Khalit of the land bearing Survey No, 211/1 Deh Talpur Wada, Taluka Kot Diji challenged the sale made by applicant No, 2 in favour of the applicant No,
1. It was averred in the plaint that the respondent's land is adjacent to the disputed land, he has right of way and draws water from the same source from which the disputed land is irrigated. It was alleged that on receiving information that the applicant No, 2 has sold his land to the applicant No,1, he made Talab-e-Mowasbat, that is the first demand before the witnesses. The respondent along with these witnesses went to the applicant No, 1 and made Talab-e-Ishhad i.e, the second demand. The applicant No, 1 kept him in hope but did not transfer the land. The appellant No, 1 in his written statement denied that the respondent is Shaf-e-Jar or Shaf-iKhalit. It was also denied that any Talab was made by the respondent. The learned trial Court framed the following issues:-
(1) Whether plaintiff is pre-emptor of land in dispute according to law?
(2) Whether the plaintiff had made demands 'Talabs' according to law?
(3) Whether the defendant is also 'Shafi-e-Jar and Shafi-e-Khalit of the suit land?
(4) What should the decree be? Additional Issue No,
1. Whether the suit is maintainable according to law?
' The learned trial Court came to the conclusion that the respondent is the pre-emptor and demands were made according to law. It was also held that the applicant No, 1 is also Shafi-e-Jar and Shafi-e-Khalit of the disputed land and, therefore, decreed the suit of the respondent in respect of half portion of the land and it was ordered that the plaintiff should deposit Rs,750 in Court within two months. The relief was granted in the following manner:- "The suit accordingly is decreed for # of the land to the defendant Lukman who is also pre-emptor of the suit land and remaining of the land to be given to plaintiff. Plaintiff should deposit Rs,750 in Court within two months of announcement of this judgment. The parties to bear their own costs."
' The applicant filed an appeal against the said judgment and decree of the trial Court before the District Judge who by the impugned judgment dismissed the same.
' Mr. Talpur the learned counsel for the applicant has contended that the respondent's witnesses have not stated in their evidence that while making Talab-e-Ishhad the respondent had made reference to Talab-e-Mowasbat, therefore, the respondent has failed to establish that any valid Talab-e-Ishhad was made as required by law and the suit was not maintainable. There can be no dispute with the proposition of law that while making Talab-e-Ishhad reference has to be made to Talab-e-Mowasbat. The Talab has to be made by the pre-emptor, therefore, to establish that proper and legal Talab-e-Ishhad has been made- it should be proved that the pre-emptor has made reference to Talab-e-Mowasbat at the time he was making Talab-e-Ishhad. In this regard the learned counsel for the appellant has referred to a Full Bench Judgment of the Calcutta High Court in Rajjub All Chopedar v. Chundi Churn Bhadra and others I L R 17 Cal. 543 where it was observed as follows:- 'According to Muhammad an Law, if the claimant neglects to perform the legal forms necessary to be observed in asserting the right of pre-emption, his claim is null and void. The ordinary forms are as follows:- ' He must make an immediate claim or Talab-e-Mowasbat and subsequently an affirmation with witnesses called the Talab-e-Ishhad. The latter consists in the party going upon the lands the right of pre-emption to which he claims, or to the seller or purchaser, and saying that he is a claimant of preemption, that he has already asserted his claims, and that he continues to do so, and at the same time calling witnesses to the fact of his having made it. One essential portion of these forms is the attesting the immediate demand, and this is not only the view put forward in Batllie's Digest, but also the view expressed in Hamilton's Hedays and in Macnaghten's precedents. Moreover, it is the view held by this Court, with the exception of the case of Nundo Pershad Thakar v. Gopal Thakar I L R 10 Cal.
1008. We think the view expressed in that case is not correct, and we answer the question in the affirmative.'
' The learned counsel has also referred to Jadal v. Abdul Majeed PLD 1978 Kar. 732 where it was held that essential requirements of Talab-e-Ishhad are as follows: "(a) that the Talab should be made against the seller, if the property sold is still in his possession, or against the purchaser, or upon the property sold;
(b) that the Talab should be made in the presence of not less than 2 witnesses (see section 236, Mulla's Principles of Muhammadan Law 1977 Pakistan Edition);
(c) that while making Talab-e-Ishhad, reference is required to be made to the Talab-e-Mowasbat, as also pointed out in Muhammad Luqman v. Amir All PLD 1959 Dacca 64."
It is well-settled that pre-emptor has first to make Talab-e-Mowasbat and then he has to make Talab-e-Ishhad in presence of two witnesses making specific reference to Talab-e-Mowasbat. It, therefore, seems necessary that while making Talab-e-Ishhad the pre-emptor must make reference to Talab-e-Mowasbat. It is now to be considered whether in the facts and circumstances of the case the requirement of law has been met.
' Mr. Syed Inayat Ali the learned counsel for the respondent has contended that, the respondent in his statement has clearly stated that at the time of Talab-e-Ishhad reference was made to Talabl.e-Mowasbat. Mr. Talpur, the learned counsel for the applicant has emphasised on the statement of two witnesses namely Usman and Aqil who in their statement have not stated that at the time of making Talab-e-Ishhad the respondent had made reference to Talab-e-Mowasbat.
There can be no cavil with the proposition that it is not necessary for the witness to make such statement before the purchaser. Such statement can however, prove that while making Talab-e- Ishhad the pre-emptor had referred to Talab-e-Mowasbat. This is, therefore, a question of fact.
Both the Courts below have given concurrent finding that the respondent had made reference to Talab-e-Mowasbat at the time of second demand before the appellant No,
1. From the statement of the respondent it is clear that such a statement was made by him. This statement has not been challenged in cross-examination. The cross-examination is directed to show that Usman and Aqil are interested witnesses. This unchallenged statement though not corroborated by the witnesses can be accepted. The contention of the learned counsel for the applicant is that both the Courts have mis appreciated the evidence. In exercise of revision jurisdiction the Court cannot set aside the finding on the ground that it is a result of erroneous appreciation of evidence. The two Courts below have come to a concurrent finding that while making Talab-e-Ishhad reference was made to Talab-e-Mowasbat. This finding has basis in evidence. This concurrent finding of fact cannot be challenged in revision application.
' The second contention of Mr. Talpur is that as the appellant is a 'Hari' of the disputed land, in view of para. 25 of M.L.R. 115 the learned trial Court and the appellate Court could not have decreed the suit for possession of half portion of the said land. Syed lnayat Ali, the learned counsel has not disputed it seriously. He, however, contends that M.L.R. 115 does not override the general law. In view of para. 3 of M.L.R. 115 this plea is not sustainable. In any event the decree passed by the learned trial Court as confirmed by the first appellate Court has not in specific terms granted the prayer for possession. It only stated that the land shall be given to the respondent. It is necessary to clarify that the respondent in pursuance of decree passed in his favour will not be entitled to eject the appellant No, 1 for obtaining possession. The respondent will have to seek remedy from the proper Court of competent jurisdiction. Subject to this observation that revision application is dismissed with no order as to costs.