1. ' Petitioner in this Court was plaintiff in a pre-emption 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, preemption 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 suit dismissed. 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 Tehsil 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, easementary 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-iMuwathibat, Talb-i-Ishhad and, also a despatch of registered notice to the respondent about Talbs.
3. ' 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.
4. On 22-5-1991, the trial Court settled following issues for determination:
(1) Whether the defendant is entitled to get the incidental 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? 0.P. Parties.
(7) Relief.
5. ' Petitioner gave evidence of two P.Ws.; himself appeared as a party-witness and produced copy of Register Haqdaran Zameen for the year 1988-89 Exh.P.1, Aks Shajra Kishtwar Exh.P.2, copy of Mutation No, 663 Exh.P.3, Acknowledgment due Exh.P.4, Postal receipt Exh.P.5, copy of Register Haqdaran Zameen for the year 1988-89 Exh.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 D.W.
3. Upon scrutiny of evidence on record, the trial Court partially decreed the pre-emption suit for 16 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 preemption suit of the petitioner.
6. ' 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 16 Kanals, 7 Marlas of land only, and, therefore, rule of partial pre-emption 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 sine qua non 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-iIshhad were not performed with due alacrity and despatch which culminated in extinguishment of the claim of pre-emption by the petitioner. P.W. 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 Shafi 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.
7. P.W. 2 Sajjad Hussain is real son of the petitioner. He deposed that Amir Haider P.W. 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 signed the notice sent by his father to the defendant. In cross-examination, the witness deposed that ten or fifteen days after the mutation, petitioner was informed of the sale. Amir Haider P.W.1, Roshan Ali Shah, Fazal Khan, the witness and the petitioner were present together at that time. 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 P W 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 P.W.1. On point of Talbs, evidence of D.Ws.1 and 2 was not material. However, D.W.2 admitted piesence 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 D.W.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 Preemption Ordinance, 1990 (Ordinance XXVII of 1990) held the field and at the time of institution of pre-emption suit, Punjab Pre-emption Ordinance, 1991 (Ordinance LX of 1991) had come into force. Subsection (3) of section 13, in Ordinance XXVII of 1990 was identical with subsection (3) of section 13 in Ordinance IX of 1991. However, subsection (3) of section 13 in Punjab Preemption Act, 1991 (Act IX of 1991) was differently worded and was a clear departure from the two earlier subsection (3) of section 13.
8. Talb-i-Muwathibat 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 conveyed to the petitioner, two or three days thereafter, as deposed by P.W.1. Though P.W.1 stated that the petitioner had then stated that he shall file the pre-emption suit 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 P.W.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 reason 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 delay in making the requisite demands shall defeat the preemption. Seen in the context, herein the case, petitioner was clearly guilty of causing unnecessary delay in declaring the first demand and following it by the second demand. Therefore, his right of pre-emption was extinguished in the act of delay caused by him. Point relating to performance of prerequisite Talbs was not abandoned in the lower appellate Court. In memorandum of appeal, it was specifically urged. Since the learned District Judge was swa yed by a defect- of partial pre-emption in the suit, he may have considered it unnecessary to dilate upon the essentials of Talbs. However, his judgment did not give an impression that the point of Talbs was either abandoned or given up by the petitioner in the Court below. Therefore, the observations in Mst. Kharo and 2 others v. Sher Afzal alias Sheray 1992 SCM R 1844 were not of any material assistance to the case of the petitioner. On the other hand, the decision of the Supfeme Court in case of Zafar Ali v. Zainul Abidin and another 1992 SCM R 1886 was a close parallel to the case under consideration. Therefore, failure to perform requisite Talbs with promptness, swiftness and despatch, defeated the pre-emption claim by the petitioner. Upon this view of the matter, civil revision was found to have little merit in it, and, accordingly, failed in limine.