1. ' This petition for revision by the successor-plaintiffs was from the judgments of the lower Courts dismissing the pre-emption suit for nonperformance of necessary Talabs.
2. ' Facts relevant to the decision of the petition were briefly as follows: Ata Muhammad was owner of two Kanals of land at Mauza Karloo-Wala in Tehsil Mankera of District Bhakkar. By Mutation No, 1289 registered on 29-8-1990, he sold it to Ghulam Baqir and Riaz Hussain for the sale price of Rs,25,000.
3. Mohkam Din claimed pre-emption in respect of this transaction and instituted a suit for it on 23-12- 1990 in Civil Court at Bhakkar. Superior right of pre-emption was asserted on plea of co-ownership, contiguity and participation in immunities such as sources of irrigation. Para. 3 of the plaint contained reference to demands for pre-emption.
4. ' Defendants submitted a joint written statement. In it, they denied performance of Talabs by the plaintiff, claimed improvements on the land in the sum of Rs,15,000 and pleaded estoppel for enforcement of pre-emption. On merits, superior right of pre-emption asserted by the plaintiff was denied by them.
5. ' Pleadings gave rise to several issues for determination. These were correctly reproduced in the judgment of the trial Court and need not be reiterated here. After settlement of issues, parties gave evidence in support of them. On its consideration, the trial Court dismissed the pre-emption suit on 30-9-1991. Under issue No, 1 it was held that the plaintiff had failed to establish the performance of Talb-i-Muwathibat and Talb-i-Ishhad. This finding led to dismissal of the pre-emption suit. As far superior right of pre-emption, it was found to exist in the plaintiff and as regards sale price, it was found to have been fixed in good faith and actually paid to the vendor. Pleas of estoppel and improvements on the land were not established. On appeal, the judgment of the trial Court was affirmed on 16-12-1994 by learned District Judge. In addition to the adverse comment on oral evidence led to prove performance of necessary Talabs, it was observed that no notice as required by subsection (3) of section 13 of the Punjab Pre-emption Act, 1991 was served on the vendees.
6. Thereupon, this revision was submitted in this Court.
7. ' It was urged by the learned counsel for the petitioners, who had succeeded the deceased/plaintiff in the trial Court, that the record was misread and its important portions were ignored for reaching an unfavourable finding on issue No,l. It was further urged that subsection (3) of section 13 of Punjab Pre-emption Act, 1991 was a mere procedural requirement of inconsequential importance and, therefore, noncompliance of it was not fatal for successfully sustaining the pre-emption suit.
8. In this behalf, cases in Muhammad Ismail Qureshi and others v. Government of Punjab and others PLD 1991 FSC 80; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 were relied upon.
9. Seen from the above, revision petition raised two faceted controversy about proof of performance of Talb-i-Muwathibat and Talb-i-Ishhad and requirement of a notice in the mode and form prescribed in subsection (3) of section 13 of Punjab Pre-emption Act, 1991. As far oral evidence adduced to prove two Talabs of Muwathibat and Ishhad, the Courts below on proper scrutiny of it found it incredible for basing a finding on it in favour of the plaintiff. It was an agreed finding on a question of fact based on proper appreciation of evidence and, therefore was binding in revision.
10. Record of evidence was examined afresh in thisCourt. There was neither misreading of it nor a non- consideration of relevant parts of it. All that was placed on record was looked into and appreciated by Courts of fact. There was no fallacy in appreciation of the record either.
11. ' There were two vendees in the case. They were Ghulam Baqir and Riaz Hussain. Ghulam Baqir was not related to the co-vandee or the plaintiff of the pre-emption suit. Riaz Hussain vendee was nephew of Mohkam Din and a cousin of Zafar Iqbal P.W.2 who was son of a brother of plaintiff- Mohkam Din. Qamar Din and Zafar Iqbal P.Ws. 1 and 2 gave evidence in support of performance of Talabs. Qamar Din was real son of original plaintiff-Mohkam Din since deceased and upon his demise was substituted for him as co-plaintiff in the pre-emption suit. Zafar Iqbal was nephew of Mohkam Din. P.Ws. 1 and 2 gave evidence that they were sitting in the house of one Sultan; plaintiff arrived there and Sultan informed him of the sale of the land, whereupon he expressed to go to the vendees' house to call upon them to retransfer the land to him in recognition of his superior right of pre-emption upon payment of Rs,2,000 which was the price paid for the land in dispute. Thereupon, plaintiff in the company of Zafar and Qamar Din went to the house of the vendees; called upon them for return of the land to him but they refused. In cross-examination, P.W. 1-Qamar Din admitted that soon after attestation of sale mutation, Sultan had informed his father about the sale and that 7/8 days after it, they went to Ghulam Baqir vendee but Sultan had not accompanied them to his house. The witness expressed ignorance about the date of attestation of sale-mutation and also whether a notice in writing was addressed by his father. Somewhat similar was the statement of P.W. 2 Zafar Iqbal. He deposed that a year and a half ago, he alongwith Qamar Din were sitting in the house of. Sultan when he informed plaintiff-Mohkam Din about the sale of the land to the vendees and thereupon they went together to the house of Baqir and said to him for return of the land in pre-emption to the plaintiff but he refused. Thereafter, they went to the house of Riaz and he also similarly refused. Statement of Zafar Iqbal P.W.2 was recorded in the trial Court on 4-6-1991. In his examination-in-chief, he gave the period of the above events to have taken place a year and a half before. Sale mutation was attested on 29-8-1990 and the pre-emption suit was instituted by the plaintiff on 23-12-1990. His testimony did not synchronise with the admitted events on record. In his cross-examination, the witness denied the suggestion that soon after attestation of sale mutation, plaintiff had come to know of it but stated that the plaintiff had gained knowledge of the sale a year and a half after it. His this statement also in cross-examination did not fit in with the relevant events of the case. Plaintiff instituted the suit himself but he did not appear in the witness-box to record his own statement. He gave special power of attorney to his son Rukan-Din who appeared for him in the suit as P.W. 3 and gave evidence in support of the plaint-case. Mukhtarnama Khas was given to him on 16-6-1991. His statement in the context of necessary events and circumstances of the case was not much helpful to the plaintiff. Even otherwise, his was an interested testimony, like P.Ws.1 and 2 who were closely related to the original plaintiff and were interested in the result of the suit. One of the defendants Ghulam Baqir as D.W.3 denied that plaintiff had even approached them for return of the land in pre-emption to him. Nor had he asserted his intention to, pre-empt the sale in their favour and also denied receipt of notice in writing from the plaintiffs' side. The testimony of other D.Ws. 1 and 2 was not relevant to the performance of demands for pre-emption and, therefore, it need not be referred to. Oral evidence to establish first and the second demand Talb-iMuwathibat and Talb-i-Ishhad was an insufficient proof of their performance. First demand for pre-emption i,e,, Talb-i-Muwathibat must be made immediately on receiving information about the sale. Second demand must soon follow it in presence of witnesses. Sultan was the central witness of 'the case. Qamar Din and Zafar Iqbal were stated to be present in his house when he informed the plaintiff about the sale. His testimony, therefore, was necessary for unfolding of the truth of events. He was stated to be on cordial terms with the plaintiff and was also available to give evidence. Nonetheless, he stayed away and was kept back by the plaintiff. Reason for the omission was not forthcoming on the present record. His non-appearance as an important witness to a pivotal event raised adverse inference and sharply 'reacted on the version put forth by the plaintiff in respect of performance of first two demands. The evidence given was improbale and untrustworthy also. Furthermore, it was common ground that notice in writing attested by two truthful witnesses under registered cover acknowledgment due for making of Talb-i-Ishhad and not given in terms of subsection (3) of section 13 of the Punjab Pre- emption Act, 1991 by the plaintiff to the vendees or anyone of them. It was not the case of the plaintiff that Post Office facilities were not available in the area in question. To meet the objection about non-service of the requisite notice contemplated by sub-section (3), learned counsel submitted that it was a mere procedural requirement of no material consequence to the pre- emption suit. It was argued that non-issuance of notice was not fatal and being a mere procedural requirement could be ignored by the plaintiff without causing loss to his claim for pre-emption. In this behalf, discussion in paras. 30 to 35 and the final conclusion on it contained in para. 36 of the judgment in Haji Rana Muhammad Shabbir Ahmad Khan's case was referred to. The counsel heavily relied upon to urge that subsection (3) of section 13 was merely a procedural provision not affecting the right of preemption, if Talb-i-Ishhad in traditional form was found to have been performed. Their Lordships of the Supreme Court in para. 36 of their judgment on section 13 (3) concluded in this way: "We have found that the point raised by the appellant has been duly taken care of by the Federal Shariat Court in its judgment. It is true that the notice is not a necessary ingredient of Talb-i-Ishahad, but it is evident that this is only a procedural matter to facilitate the proper process of filing a suit of pre-emption which does not, in any way, affect the besic right of pre-emption. Procedural provisions may vary from time to time according to the expediency and in so far as they do not violate any Injunction of Islam they cannot be held repugnant to the Holy Qur'an and Sunnah". From the above extract, it was clear that subsection (3) was not found repugnant to Islamic Injunctions by the Supreme Court of Pakistan. This led to another important question about the fulfilment of the requirement of notice in the mode and form contemplated by subsection (3) and its consequence. In my opinion, service of requisite notice was not a mere idle formality laid down by the Legislature. It was required to be imperatively fulfilled and performed in the manner laid down by law. Its non-compliance was fatal to the performance of Talb-i-Ishhad.
12. Will of the legislature must be respected by the Courts and it could not be mutilated at the altar of procedural requirement of a technical nature, as was asserted by the learned counsel for the petitioners. It was well-settled that when the law requires a thing to be done in a particular manner, it must be done in that manner. Other modes of its performance were necessarily forbidden. In this view of the matter, I am of the firm opinion that subsection (3) of section 13 of the Act laid down a mandatory requirement for the pre-emptor to follow and its non-fulfilment was fatal to the successful assertion of the pre-emption by him. As a result of the above, the Courts below were right in holding that the demands for preemption i,e, Talb-i-Muwathibat and Talb-i-Ishhad were not made in accordance with statute law. Therefore, the pre-emption suit was rightly dismissed by them on this score.
13. ' Having regard to the aforesaid, civil revision is dismissed in limine.