The facts briefly stated are that Hassan Din, respondent filed a suit for possession through pre- emption asserting that he was possessed of superior right of pre-emption being in possession of the suit land as a tenant and being an owner in the estate. It was added that defendants Nos. 1 to 3 were not the owners in the estate prior to the sale in question and as such the other defendants .No.". 4 to 6 having joined the strangers in the sale, have also lost their right under the principles of sinker. The suit was resisted by the vendees and the learned trial Judge dismissed the suit vide judgment and decree dated 22-11-1979 returning the findings on issues Nos. 1 and 2 against the plaintiff/pre-emptor. These issues are; whether the plaintiff is estopped to bring this suit, and, whether this suit is for ' partial pre-emption. On appeal, the judgment and decree of the trial Court was reversed by the learned Additional District Judge, Sheikhupura vide judgment and decree dated 18-1-1988. This led to the filing of the present second appeal.
2. Learned counsel for the appellants submitted that no decree of pre-emption could be granted in favour of the pre-emptors on both the grounds urged in the plaint, viz. Ownership in the estate and tenancy since after 31st July, 1986, in view of the judgment of the Supreme Court in the case of Government of N.--W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360). Learned counsel for the respondent in opposition, however, urged that the decree granted cannot be interfered with as the plaintiffs/pre-emptors being also participators in the amenities arc possessed of superior right of pre-emption. No such plea was take in the plaint. Assuming that the pre-emptors/respondents were possessed of an qualifications recognized by Islamic Jurisprudence for claiming right of pre emption, still the suit filed by them cannot succeed as concededly no Talabs were made in the mode prescribed by Islamic Jurisprudence at the relevant time Moreover, the plaint does not contain any averment as to making of Talabs in the mode prescribed by Islamic Jurisprudence.
The suit of the respondent/plaintiffs therefore, is bound to fail.
3. In view of above, the impugned judgment and decree of the learned Additional District Judge is not sustainable in law and is hereby set aside, The suit of the respondents/plaintiffs is also dismissed. The second appeals, therefore, succeeds. The parties are, however, left to bear their on cost.
H.B.T./H-132/L