' This Revision Application has been preferred against the judgment and decree passed on 11th May, 1976 by the learned 1st Additional District Judge, Nawabshah in Civil Appeal No. 4 of 1974, whereby he. dismissed the said appeal and confirmed the decree, dated 19-2-1974 passed by the learned Civil Judge, Kandiaro in Suit No. 52 of 1974.
' The brief facts are that the plaintiff brought the above-mentioned suit for enforcing the right of pre-emption on the plea that he owned 0-10-8 share in Survey No. 159/2-B, measuring 2-17 Acres in Deh Mehar Haji, Taluka Kandiaro and the remaining share belonged to the respondent No. 2, Zebita son of Jano. The plaintiff also claimed that he is the owner of the adjacent survey numbers.
' According to the case in the plaint, on 5-5-1962 the plaintiff learnt about the sale of the share in Survey No. 159/2-B by Zebita to the defendant No. 1 (Taj Muhammad) who came to take possession of the suit land and informed the plaintiff that he has purchased the share of Zebita, whereupon he immediately declared his intention of exercising his right of pre-emption and demanded the defendant to re-sell the said land and thus made the first demand (Talab-e Muwasibat). The plaintiff further pleaded that without any delay he made the second demand (Talab-e-Ishhad) from the defendant before the witnesses and demanded from him that he should re-sell the suit land to the plaintiff on valid consideration as the plaintiff had right of pre-emption and that he had already made the first demand to purchase the suit land but the defendant refused to do so.
' The suit was contested by Taj Muhammad, the defendant No. 1 the purchaser.
2. On the pleadings of the parties eight Issues were framed by the trial Court but only Issue No. 3 was argued. In this Court also the said Issue No. 3 alone was pressed. The said issue therefore is 'reproduced herein below:-- "3. Whether the plaintiff made requisite Talabs for pre-emption? If yes, whether these are valid?"
3. Mr. G.M. Qureshi, the learned counsel for the petitioner referred to para. 8 of the plaint and argued that it was expressly pleaded therein that the second demand was made in the presence of witnesses when the plaintiff asked the defendant to re-sell the suit land to him on valid consideration as he had right of pre-emption and that he had already made the first demand to purchase the land. The learned counsel also referred to the written statement in para. 7 whereof the defendant No. 1, Taj Muhammad, denied the contents of para. 8 of the plaint and further pleaded that the allegations made in the para. 8 of the plaint were false and frivolous. It was further averred that the plaintiff had not made the second demand from the defendant.
' The learned counsel then referred to the evidence led by the witnesses but frankly conceded that in the evidence the plaintiff or his witnesses had not deposed that when the second demand (Talab-e-Ishhad) was made any reference was made to the fact that first demand (Talab-e - Muwasibat) had already been made.
' The learned trial Court in its judgment, after reproducing section 236(2) of the Muslim Law by Mulla wherein as to "Demands for pre-emption", it is provided, amongst other conditions, that no person is entitled to the right of pre-emption unless he has with the least practicable delay affirmed the intention, referring expressly to the fact that the Talab-e-Muwasibat had already been made, held:-- "There is no evidence on record to show whether plaintiff made express reference of first demand at the time of making the second demand".
' On the above findings reached the learned trial Court held that the demands if made were invalidly made and accordingly answered the Issue No. 3 in the negative.
' In the appeal filed against the above judgment the learned first appellate Court on appreciation of evidence held:-- "accordingly the reference of first demand should have been expressly made to him in presence of two witnesses at the time of making the second demand which has not been done as is clear from the evidence of the plaintiff's side."
' The learned lower appellate Court concurred with the findings of the trial Court on Issue No. 3 and according dismissed the appeal and maintained the judgment/decree passed by the trial Court.
4. While arguing this revision petition preferred against the Above judgments/decrees, the learned Advocate for the applicant/plaintiff took me through the record. The perusal of the record confirms the findings reached by the two Courts below that the plaintiff while making the alleged second demand made no reference to the fact that first demand had already been made. On the concurrent findings of facts reached as abovementioned, which are not open to challenge in this Court, in view of the settled law as reaffirmed in the case of Muhammad Luqman v. Ameer Ali and others PLD 1969 Dacca 64 the omission to make express reference of Talab-e-Muwasibat (first demand) at the time of making the second demand (Talab-e-Ishhad) was rightly held to be fatal to the plaintiff's claim of pre-emption. The learned counsel for the applicant however, contended that onus to prove that no reference was made to the first demand while making the second demand, was upon the defendant. I am afraid that this argument of the learned counsel cannot succeed as in a suit for pre-emption the burden of proof that the two demands were made strictly in accordance with the law was upon the plaintiff who wanted to defeat the sale, which otherwise was valid in law. Moreover, the plaintiff opened the case and led evidence. He thus took upon himself the burden to prove his case, and now cannot raise the plea that the onus of proof was on the other side.
' No other point was raised by the learned counsel for the applicant.
6. The upshot of the above discussion is that the learned Advocate for the applicant/plaintiff has not been able to show that the concurrent findings reached by the two Courts below suffer from any defect of jurisdiction, want of jurisdiction or any other material irregularity or illegality. No interference, therefore, is called for by this Court in exercise of its supervisory jurisdiction within the meaning of section 115, C.P.C.
' The above petition therefore is dismissed. The parties however are left to bear their own costs.