ORDERGUL ZARIN KIANI, J.-Petitioner in this Court was plaintiff in a preemption suit before the trial Court. Pre-emption suit was decreed on 28-5-1992 in his favour for 16 Kanals, 7 Marlas, upon'payment of Rs. 22,690 as sale-price to the vendee-respondent by or before 28-6-1992. In default of payment by due date, pre-emption suit was to stand dismissed with costs. On appeal by the vendee- respondent, judgment and decree of the trial Court were reversed on 24-6-1992 by the learned District Judge, Attock, and pre-emption . Against this decision given in appeal, petitioner has come up in revision to this Court.
2. Relevant facts shortly put are:- By Mutation No. 663 sanctioned on 6- 12-1990, Mubarik Shah sold 80 Kanals of land comprised in Khasras Nos. 395, 397, 400, 515, 526, 530 and 1217 in Revenue Estate Thatti Saidoo Shah, in Tahsil Pindigheb of District Attock to Ghulam Hussain respondent for a sum of Rs. 1,11,000. Said Muhammad Shah-petitioner claimed pre-emption in respect of 21 Kanals, 7 Marlas of land falling in Khasras Nos. 395, 397, 400, 515, 526 and 530, out of the total land. Superior right of pre-emption was asserted on the grounds of being a co-sharer; an owner of contiguous land and easementory right of a passage passing through the land-in-dispute. Pre-emption suit was instituted on 16-3-1991. In para-2 of the plaint, petitioner averred performance of Talb-i- muwathibat, Talb-i-ishhad and also a despatch of registered notice to the respondent about Talbs.
Respondent resisted the pre-emption suit filed against him; denied superior right of pre-emption asserted by the petitioner; performance of Talbs by him and sale of the land for a sum of Rs.
29,620. .On 22-5-1991, the trial Court settled following issues for determination:-
(1) Whether the defendant is entitled to get the mcidental charges, if so what amount? OPD
(2) Whether the plaintiff has no cause of action? "OPD
(3) Whether the suit is under-valued for purposes of Court-fee and jurisdiction? OPD
(4) Whether the plaintiff has superior right of pre-emption against the defendant? OPP
(5) Whether the ostensible sale price of Rs. 29,620 was fixed in good faith and was actually paid?
OPD
(6) If issue No. 1 is not proved what was the market value of the suit land? O.P. Parties.
(7) Relief.
Petitioner gave evidence of two PWs; himself appeared as a party-witness and produced copy of register Haqdaran-Zameen for the year 1988-89 Ext. P.l, Aks Shajra Kishtwar Ext.P.2, copy of Mutation No. 663 Ext.P.3, Acknowledgement-due Ext.P.4, postal-receipt Ext.P.5, copy of register Haqdaran- Zameen for the year 1988-89 Ext.P.6 and copy of notice mark 'A* in evidence and closed his case on 2-10-1991. Respondent gave evidence of equal number of witnesses and himself appeared as DW-
3. Upon scrutiny of evidence on record, the trial Court partially decreed the pre-emption suit for I6 Kanals, 7 Marlas of land only. As said above, decree of the trial Court was reversed in appeal at the instance of the respondent. Appeal was allowed mainly on the ground that the petitioner had sued for partial pre-emption. In fact, this was the only ground for allowing the appeal and dismissing the pre-emption suit of the petitioner.
3. It is contended here that the view taken by the lower Appellate Court was incorrect because superior right of pre-emption claimed by the petitioner extended to I6 Kanals, 7 Marlas of land only and, therefore, rule of partial preemption did not apply for defeating the pre-emption to a part of the land by the petitioner. Civil revision came up for hearing before me on 26-9-1992. In absence of the original records from the Courts below, it was considered inappropriate to proceed with its hearing. Consequently, the hearing was adjourned to 3-10-1992 and the learned counsel was put to notice to examine and address on the validity of Talbs which were a sinequanon for enforcement of pre-emptive right under the new dispensation. At the resumed hearing, original record from the trial Court was seen, and, looked into. Upon its close scrutiny, it is clear that required Talbs, i. e. Talb-i-muwathibat and Talb-i-ishhad were not performed with due alacrity and despatch which culminated in extinguishment of the claim for pre-emption by the petitioner. PW-1 Amir Haider Shah is a village Headman. He intimated the sale of the land to the petitioner two or three days after the attestation of sale- mutation. Muhammad Shaft had informed him of the sale in Kutchery premises of Pindigheb. The witness and one Sajjad Hussain had appended their signatures to the notice sent by the petitioner to the defendant in the pre-emption suit. In cross- examination, the witness had deposed that two or three days after he had apprised the petitioner about the sale, he had signed the notice in the office of Iqbal Advocate at Pindigheb. The witness is real nephew of the petitioner. PW-2 Sajjad Hussain is real sort of the petitioner. He deposed that Amir Haider PW-1 had informed his father about the sale of the land-in-dispute and upon hearing of the sale, his father proclaimed his intention to pre-empt the sale. It was further stated that he had sighed the notice sent by his father to the defendant. In cross- examination, the witnesses deposed that ten or fifteen days after the mutation, petitioner was informed of the sale. Amir Haider PW-1, Roshan AH Shah, Fazal Khan, the witness and the petitioner were present together at that tithe. The witness further deposed that notice by the petitioner was given to the defendant on the next day of gaining the knowledge about the sale by the petitioner. Petitioner as PW-3 testified that Amir Haider Shah informed him of the sale of the land-in-dispute and upon gaining its knowledge, he instantaneously proclaimed his intent to claim pre-emption. He stated that after receipt of information about the sale, he gave notice through registered-cover to the defendant. Photo-copy of the notice was annexed to the record. It was not marked exhibit. In cross-examination, petitioner stated that fifteen days prior to the giving of, notice, a Jirga was sent to the defendant. The witness denied the suggestion that he had not made any Talb. It was significant that the petitioner did not specify the day or the time of his receiving the knowledge about the sale from PW-1.. Qn point of Talbs, evidence of PWs-1 and 2 was not material, However, PW-2 admitted presence of Muhammad Shafi at the time of bargain for the sale of-the land-in-dispute and attestation of the sale-mutation. Vendee-respondent, in his testimony as PW-3, did not depose on performance of Talbs by the petitioner, but admitted receipt of notice from him. At the time of attestation of Mutation No. 663, Punjab Pre-eruption Ordinance, 1990 (Ordinance XXVII of 1990) held the field ahd at the time of institution of pre-emption suit, Punjab Pre-emption Ordinance, 1991 (Ordinance IX of 1991) had come ihto force! Sub-section (3) of Sectlbn 13 iff Ordinance XXVII of 1990 was identical with sub-section (3) of section 13 in Ordinance IX of 1991. However, sub-section (3) of section 13 in Punjab Pre-eiriptiofi Act, 1991 (Act IX of 1991) was differently worded and was a clear departure from the two earlier sub-section (3) of section 13.
Talb-i- niuwathibat is a first and immediate demand by a pre-emptor to make, upon knowing of the Sale for proclaiming and pronouncement of his intention to exercise right of pre-emption by him. Talb-i-ishhad is a second demand by establishing evidence of it. After making Talb-i- muwathibat, the pre-emptor was obliged to perform second Talb, known as Talb-i-ishhad, "as soon thereafter as possible". Sale-mutation was attested on 6-12-1990. Its information was conyeyed tb the'petitioner, two or three days thereafter, as deposed by PW-1. Though PW-1 stated that the petitioner had then stated that he shall file the pre-emption but there was no sure evidence of declaring his unequivocal intention for claiming pre-emption in respect of the sale. He is a close relation of the petitioner. So is PW-2: Testimony Of the petitioner is self-interested. Even if it was assumed that the first demand was made soon after the attestation of sale-mutation, there was no eason for further delaying the making of second demand and despatch of notice mark 'A' on 1-1-1991. Right of Shuffa is but a feeble right. Therefore, the formalities required for its enforcement must be strictly observed and there must be a clear proof of their observance.
Unexplained for delay in making the require demands shall defect the pre-epetion seen in the context herin the case, petitioner was cleraly guilty of causing unneecessary delay in declaring the first emand and following it by the secind .therefore his right of pre-eption was extinguished in the act of delay caused by him .point realting to performance of persiqution talabs was not abandoned in the lower appelate court .In memorendum of appeal it was specifically urged .Since the learned district judge was swyed by a defect of partial pre-emption in the suit he may have considerd it necessary to dilate upon the essential of talbs .however his judgment in not give an empression that the point of talbs was either abandoned or given by the petitioner in the court below .Therefore the obeservation in Mst.Kharo and 2 others vs . Sher Afzal alias Shery -1992 SC M 1844 were was not of any material assistance to the case of the petitioner .On the other hand the decision of the supreme Court in case of Zafar Ali vs Zainul Abidin abd another -1992 SCM R 1886 was a close parellet to the case under consideration therefore failur to perform requisit talbs with permotness swiftness and despatch the pre-eption claim by the petiotioner .Upon this view of the matter civil revision was found to have little merit in it