The petitioner has assailed the findings of District Judge, Mardan in Appeal No.113/13 of 1989 whereby the judgment and decree of the Trial Court was maintained and the appeal was dismissed.
2. The facts giving rise to these proceedings are that the plaintiff had pre empted the sale transaction through Suit No.360/1 on 30-1-1983. This suit was dismissed by the Trial Court vide judgment and decree dated 13-4-1989. Aggrieved from the said decision the petitioner lodged an appeal before the District Judge, Mardan which was also dismissed on 14-9-1989, hence the present revision.
3. The perusal of the plaint and its averment would show that this suit for enforcing the right of pre- emption was instituted on 30-1-1983 under the provisions of N.-W.F.P Preemption Act XIV of 1950.
The said Act was repealed by section 35(1) of N.-W.F.P. Pre-emption Act No.X of 1987. For ready reference section 35 with all its subsections is reproduced as under:- "35-Real. --(1) The North-West Frontier Province Pre-emption Act, 1950 (N.-W.F.P. XIV of 1950) is hereby repealed.
(2) In the cases and appeals filed under the law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and, which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptores shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act. "
5. It is pertinent to note that no decree was ever passed in favour of the plaintiff-pre-emptor till 31- 7-1986, therefore, no decree can be passed in favour of the plaintiff thereafter unless his suit is instituted under the provisions of Act A No.X of 1987.
6. Under section 13 of the Act the conditions precedent for enforcing the right of pre-emption are 'Talabs'. Section 13 of the Act is reproduced as under:-- "13. Demand of pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption in the following order, namely:--
(a) Talb-i-muwathibat;
(b) talb-i-ishhad; and
(c) talb-e-khusumat.
7. Since the plaintiff has failed to incorporate in his plaint the fact--m of 'Talbs', therefore, his suit cannot stand on legal footings. There was no need of framing an additional issue as it is lacking altogether in the plaint In such situation, the evidence if produced, will be of no avail.
8. Viewing the case from any angle in the light of the aforesaid reasons the suit of the plaintiff cannot succeed and the findings of both the Courts below are unexceptional to be interfered with under section 115, C.P.C.
9. Resultantly the present revision petition merits dismissal and is accordingly dismissed. In peculiar circumstances of the case the parties are left to bear their own costs.