' The relevant facts for the decision of this second appeal are that the respondents purchased agricultural land situated in Chak No,440/G.B, Tehsil Samundri, District Faisalabad through mutation entered on 3-12-1987 and sanctioned on 27-12-1987. The appellant-plaintiff filed a suit to pre-empt this sale. He claimed superior right on account of joint ownership in Khata. The respondents contested the suit. The trial Court accordingly framed the following issues:--
(1) Whether the plaintiff has superior right of pre-emption qua the defendant in respect of suit land ?
(2) Whether Rs,5,00,000 was actually paid in good faith as a sale price of the suit land ?
(3) If above issue proved in negative then what is the market value of the suit land ?
(4) Whether the plaintiff has no cause of action to bring the present suit ?
(5) Whether the defendants are entitled to get the incidental charges of the registry in case the suit is decreed in favour of the plaintiff ?
(6) Whether the defendant made improvement over the suit land ? If so, to what amount ?
(7) Whether the present suit has not been instituted in accordance with the Islamic Law ?
(8) Whether the plaintiff is estopped to bring the present suit due to his words and conduct ?
(9) Relief.
' The appellant appeared as P.W.1 and closed his side while the respondents examined Khizar Hayat as D.W.1, Khadim Hussain as D.W.2 while Muhammad Ashraf, respondent No,3 appeared as D.W.3.
The trial Court after hearing the .Arguments decreed the suit vide judgment dated 13-2-1990 which was assailed through an appeal before the lower appellate Court. The same came up on the file of Mr. Gulshad Hassan Alvi, Additional District Judge, Samundri. The learned Appellate Court accepted the appeal vide judgment and decree dated 26-5-1993. Now this second appeal, which was admitted to hearing and notices were issued to the respondents, who have entered appearance through Sh. Hamid Mukhatar, Advocate and contested the appeal.
2. The learned counsel for the appellant argued that the appellant in para. 3 of his plaint clearly and specifically pleaded Talbs but the same was not specifically denied and for this reason no issue on the point of Talbs was framed by the trial Court. It is added that in view of this factual position the statement of the appellant as P.W.1 was sufficient to prove Talbs. The lower Appellate Court has wrongly and illegally reversed the findings on issues Nos.1 and 7 recorded by the trial Court and accepted the appeal. The second point argued on behalf of the appellant is that Talb- e-Ishhad was to be made in the presence of two truthful witnesses. It is not the requirement of law to produce the witnesses. In this behalf the learned counsel has referred to the cases reported as Muhammad Ismail v. Sakina Bibi (PLD 1991 Lahore 60) and Abdul Aziz v. Ahmed Bakhsh and others (1995 SCMR 725). It is added that the suit was filed during the period when there was no codified Pre-emption Law, therefore, Talabs were not necessary. In this behalf the learned counsel has referred to Sardar All v. Muhammad Ali (PLD 1988 SC 287).
3. On the other hand, the learned counsel for the respondents argued that not only para. 3 of the plaint was categorically denied by the defendants but they also raised preliminary objection No,6 to the effect that Talbs have not been made in accordance with law and accordingly issue No,7 was framed. It is, therefore, maintained that there is no merit in the argument that the defendants have not specifically denied the Talbs in the written-statement and for that reason the trial Court did not frame issue on this point. It is argued that according to Explanation II to section 13 the plaintiff is not only to prove that Talb-e-Ishhad was made by him in the presence of two truthful witnesses but also to prove the same at the trial. But in this case it is maintained that neither there was Talb-e-Ishhad made nor proved. The learned counsel in this behalf has referred to the cases reported as Muhammad Din v. Khalid Masood Ahmed Khan (1995 CLC 256) and Muhammad Sarwar v. Ashiq Ali (PLD 1995 Lahore 133). The arguments are concluded with the submission that the Talbs are basis of right of pre-emption and in the absence of Talbs the plaintiff cannot maintain the suit for pre-emption.
4. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and precedent cases. The first argument that the Talbs were specifically pleaded but not denied, therefore, no issue was framed is against the record. The defendants have categorically stated in preliminary objection No,6 that the plaintiff has failed to make Talabs as required under the personal law and accordingly the trial. Court framed issue No,7.
5. Now before proceeding further I take up the arguments that no Talbs were necessary as no codified law was in force in the Province on 3rd December, 1988 when the suit was filed. The argument is clearly misconceived because in the absence of codified law the suit was to be instituted and decided in accordance with Muslim Law. Talb-e-Muwathibat is the starting point of pre-emption under the personal law. It is too late in the day to argue that Talbs are not necessary because this issue has been authoritatively decided by the Hon'ble Supreme Court. In this behalf reference can be made to Muhammad Shabbir Ahmed Khan v. Government of Punjab Province PLD 1994 SC 1), Zaffarullah Khan v. Muhammad Khan (1993 SCMR 696), Rozi Khan and others v. Syed Karim Shah and others (1992 SCMR 445) and Zafar All v. Zainul Abidin and another (1992 SCMR 1886).
6. Now coming to the factual controversy that Talbs were pleaded and proved and for that purpose we have to refer to the statement of the plaintiff as P.W.1. The relevant portion of the statement reads as under :-- {{URDU TEXT}} It is clear from the above evidence that the appellant did not make Talb-eMuwathibat at all. It is also termed as jumping demand and is to be made in the same meeting and sitting without any loss of time. While in the present case, according to the plaintiff, when he learnt about the sale he proceeded to collect the amount and then he went to the house of the defendants. This is not Talb- e-Muwathibat in accordance with either Muslim Law or. The Pre-emption Act, 1991. In this behalf reference can be made to the case reported as Muhammad Ashraf v. Muhammad Tahir and 6 others (1990 MLD 2399) in which case after examining the available law it was held as under:-- "10. It will be seen from the above admissions that `Talb-e-Mowasibat' was made immediately after the appellant came to know about this deal. According to Muslim Law by Saksena, `Talb-e- Mowasibat' or immediate demand literally means demand of jumping, by which preemptor should make immediate assertion of his right on getting the information of the transfer of the property.
The expression clearly shows that the right of pre-emption must be asserted with the utmost promptitude. The case of Monajal Huq v. Shafiullah and others reported in PLD 1964 Dacca 640, is an important authority on this subject, wherein it was held:- 'A person entitled to pre-emption must make the immediate claim to the right of pre-emption called Talb-e-Mowasibat as soon as the fact of sale is known to him. The right is lost if there be any delay in claiming it'."
After examining the available case-law on this point Idris, J. Observed as follows:- "In the present case, plaintiff did not make the immediate demand, that is, he did not perform the ceremony of Talab-e-Mowasibat immediately on coming to know of the sale in the Registration Office, but he went to the land at the distance of 2-1/2 miles and there made the claim. As the Talab-e-Mowasibat was not made instantly on coming to know of the sale, the right of pre- emption was lost."
11. In Smt, Sundri Bai v. Gbulam Hussain reported in 1982 CLC 2441, Saeeduzzman Siddiqui, J., made this subject more clear in the following words:- "`Talab-e-Mowasibar is defined as the immediate claim. The `Shafee' must make this claim the moment he learns of the sale of the property and any delay in asserting this claim will invalidate the right of `shafa' for the right of `Shafa' is but of feeble nature. The Prophet (peace be upon him) has said "the right of Shafa is established in him who prefers his claim without delay (see Hadaya by Hamilton at page 550). The respondent has not explained the delay of about 1-1/2 hours in making the Talab-e-Mowasibat. It has come in the evidence that the appellant was residing on the 1st floor while the respondent was on the ground floor of the same building. In these circumstances the delay of 1-1/2 hours in making the first demand (Talab-eMowasibat) was fatal to the claim of `Shafa' asserted by the respondent."
The issue is clinched by reference to the case of Zafar Ali v. Zainul Abidin and another (1992 SCMR 1886), where the Hon'ble Supreme Court held as under:-- "The judgment in the Quetta case itself shows that the Shariat Appellate Bench of this Court had in the case of Government of N.-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) emphasised that as soon as the plaintiff learns about the sale he would 'without any delay immediately declare that he would exercise the right of Shufa against the said sale'. It was emphasized that this declaration shall have to be made before the dispersal of the Majlis in which the plaintiff gains the knowledge about the sale. Thus, before that moment if the plaintiff wants to gain some more information it might be possible but not thereafter by making applications for obtaining copies or making inquiries. There is a practical side to this aspect of the law, namely. That by making 'Falb' the plaintiff will not be losing anything while not making the `Talb', on the one hand he would be losing the right to pre-empt and on the other he would delay first essential, notice about his intention by way of `Talb-i-Muwathibar. This view of the law also gets support from further discussion on the subject in the case of Malik Said Kamal. For example, after noticing same aspects of variance on the question regarding, at what stage in the same Majlis the first Talb should be made, it was held as follows:- {{URDU TEXT}} ' It was held in the case of Muhammad Ismail Qureshi and another v. Government of N.-W.F.P. And another (1992 PSC 75) that right of Shufa is notionally acquired as soon as the title in property changed hands and it is fully secured the moment a pre-emptor makes a Talab-eMowasibhat, there, Talb-eMowasibat is the foundation of the claim. In the absence of the legal formalities the claim is defeated. Reference can be made to Rujjuab All Chopedar v. Chundi Churn Bhadra and others (17 Cal. 543), Said Muhammad Shah v. Ghulam Hussain (1993 CLC 105) and Samundar Khan and 2 others v. All Zaman (PLD 1984 Peshawar 12). The matter is concluded by the judgment of the Hon'ble Supreme Court in the case of Mst. Safia Begum v. Ibrahim and 4 others (PLD 1989 SC 314), wherein it was held that :-- "9. Coming now to the main points raised in the other petition, it is to be observed right away that as held in the Said Kamal's case and also reiterated in subsequent cases including that of Sultan Ali Khan PLD 1988 Peshawar 111 from the Peshawar High Court, the failure to make the Talabs at proper times extinguishes the so-called right of pre-emption. Hence it is not a part of procedural law but falls in the substantive field-- rather an integral part of the right of Shufa-- this term has been distinguished from 'pre-emption', in the case of Said Kamal."
7. Now coming to Talb-e-Ishhad. It is nowhere in the statement of the plaintiff that he made the same in the presence of two truthful witnesses or by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgment due. There is merit in the argument of the learned counsel for the respondents that not only Talb-e-Ishhad was not made but it was not proved by the statement of P.W.1. The plaintiff this way failed to prove that he made Talb-e- Muwathibat and Talb-e-Ishhad before filing the suit. The judgment of the lower appellate Court is unexceptionable. The appellant has failed to make out a case for interference in the second appeal.
8. The upshot of the above discussion is that there is no merit in this appeal. The same is dismissed with costs.