SHARIF HUSSAIN BOKHARI, J.---This Regular First Appeal was filed against the judgment and decree dated 21-7-1988,, passed by Mehr Muhammad Sarfraz Khan Jhawari, Civil Judge, First Class, Sheikhupura, dismissing the suit of the appellants.
2. The brief facts are that respondent No. 1 sold agricultural land measuring 101 Kanals, 8 Marlas, situate in Village Shahpur, Tehsil and District Sheikhupura, to respondents 2 to 7, for a consideration of Rs.4,00,000. Possession was also delivered to the vendees. The appellants challenged the sale and claimed possession of the suit land on the basis of right of pre-emption. The plaintiffs/appellants were non-suited on the ground that the- same was hit by the verdict of Hon'ble Supreme Court in Government of N.-W.F.P. v. Said Kamal (PLD 1986 SC 360). The relevant portion of the impugned judgment is as follows: -- "In view of the high judicial pronouncement contained in PLD 1986 SC 360 as well as in Civil Appeal No.205/80 titled Sardar Ali v. Muhammad Ali and others, the suit of the plaintiffs has become infructuous and furthermore, the grounds of contiguity, joint way and joint irrigation resources have not been brought on the statute book through legislation so far, therefore, the same cannot be regarded as a codified law of the country so as to be enforceable under the law. In consequence, the suit of the plaintiffs is hereby dismissed. No order as to costs. "
3. Learned counsel for the appellants contends that the learned trial Court has misconceived the legal position, as enunciated in the aforesaid judgment of the Hon'ble Supreme Court and has misapplied the same. He submits that, as a matter of fact, in accordance with the said judgment, right of -pre-emption against the impugned sale was enforceable, inasmuch as the appellant claimed it on the basis of contiguity and joint ownership in the appendages, such as passage and watercourse.
4. We have heard the learned counsel for the appellants and are in agreement with him on the question that the right of pre-emption was available to the appellants/plaintiffs on the basis of contiguity of their land to the land in i,, question and also their joint ownership of the appendages.
This position is also supported by the precedent case. In this view of the matter, the impugned decree is not sustainable.
5. However, on going through the plaint, we find that the requirements of ' Talabs' , as provided under section 13 of the Punjab Pre-emption Act, 1991 have not been fulfilled by the appellants- plaintiffs. It is not even alleged in the plaint that ' Talb-e-Ishhad' was made in accordance with the aforesaid provision of law.
6. Subsection (3) of section 13 of the said Act states that, "Where a pre--emptor has made Talb-i- Muwathibat under subsection (2), he shall, as soon thereafter as possible but not later than two weeks from the date of knowledge, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption". Accordingly, in the absence of 'Talb-i-Ishhad', the suit cannot proceed. Reference may be made to Muhammad Shabbir Ahmad Khan v. Government of Punjab Province (PLD 1994 SC 1) and Ghulam Hussain and others v. Mushtaq Ahmad and others (PLD 1994 SC 870). It will thus be futile to remand the case to the learned. Trial Court for fresh decision because the present suit is not maintainable and cannot proceed in the absence of '
Talb-i-Ishhad' , as observed above.
7. We, therefore, dismiss this appeal, but there shall be no order as to costs.