Muhammad Din petitioner filed a suit against Khalid Masood Ahmad Khan and another who are respondents before this Court for possession through pre-emption regarding the oral sale of land measuring 9 Kanals, 3 Marlas situate in the revenue estate of Pattoke Kohna, Tehsil Chunian, District Kasur, which sale took place on 0-3-1988, on the basis of his qualification of being real brother of the vendor and co-sharer in the Khata. The demand for sale/transfer of land in his favour as shown to have been made in the manner as described in paragraphs Nos. 2 and 6 of the plaint which are reproduced as under:-- {{URDU TEXT}} ' This suit has been contested and dismissed by the learned trial Court vide judgment and decree dated 31-3-1991 on the ground that the plaintiff has failed to prove avoidance of Zarar and existence of Zaroorat and also making of Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khasumat and further on the ground that the suit is barred by limitation. Aggrieved of this judgment and decree, the petitioner filed regular first appeal which has been dismissed by the learned Additional District Judge, Chunian on the ground that there is no evidence of making of Talbs, avoidance of Zarar and existence of Zaroorat, therefore, the suit is not maintainable and has rightly been dismissed, hence this civil revision has been filed in this Court.
2. Mr. NA. Butt, Advocate, learned counsel for the petitioner has argued that in view of the law declared in cases of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province. Lahore (PLD 1994 SC 1), the pre-emption suit could not have been dismissed for want of allegation and proof of avoidance of Zarar and existence of Zaroorat, and, therefore, the impugned judgment and decree are illegal and further that the suit having been filed prior to the coming into force of Punjab Pre-emption Act, 1991 it was not at all necessary to allege and prove making of Talb-iMuwathibat, Talb-i-Ishhad as according to the learned counsel even making of demand for surrender/sale of land to the petitioner is sufficient to constitute Talabs in accord with the Injunctions of Islam, therefore, the impugned judgments and decree are illegal.
3. I have considered the arguments addressed by the learned counsel for the petitioner and have gone through the record. I agree with the contention of the learned counsel for the petitioner that as per law declared in case of "Ahmad Klian" (supra), a pre-emption suit cannot fail due to the failure of the pre-emptor to allege and prove the existence of Zaroorat and avoidance of Zarar.
However, in order to acquire an actionable/enforceable superior preemptive right, after Punjab Pre-emption Act, 1913 has become ineffective after 31-7-1986, it had to be alleged and proved that the pre-emptor had made Talb-i-Muwathibat, Talb-i-Ishhad before filing of the suit and in case of his failure to allege and prove Talabs, no decree for pre-emption can be passed in his favour as per law declared in cases of Zafar Ullah Khan and others v. Muhammad Khan and others (1993 SCM R 696), Rozi Khan v. Karim Shah (1992 SCM R 445) and Zafar Ali v. Zainul Abidin and others (1992 SCM R 1886). The allegations of making of demands as contained in paragraphs Nos. 2 and 6 and as deposed by the witnesses produced by the petitioner do not constitute making of Talb-i- Muwathibat and Talb-i-Ishhad. Refer case of Ghulam Qadir v. Nawab Din (PLD 1988 SC 701).
Therefore, the findings of the two Courts below to the extent that the plaintiff has failed to prove that he had made Talb-i-Muwathibat and Talb-i-Ishhad before filing of the preemption suit are unexceptionable and hence are upheld. In view of the above A as the petitioner has not acquired an actionable/enforceable superior preemptive right due to his failure to make Talb-i-Muwathibat and Talb-i-ishhad in accord with the Injunctions of Islam, he has acquired no cause of action and as such no decree can now be passed in his favour. No other point has been argued before me.
' Resultantly, I see no force in this civil revision, hence the same is dismissed with no order as to costs.