RIAZ HUSSAIN, J.- Brief facts leading to this petition are that the petitioner filed a suit for possession through pre-emption in respect of land in dispute purchased by the respondents vide Mutation No. 918, dated 30.1.1991. It was averred in the plaint that the suit land was in fact sold for a consideration of Rs.25,000/- and the sale amount was fictitiously entered in the mutation as Rs. 1,20,000/-. The suit was resisted by the respondents wherein they denied all the averments in the plaint. It was further stated that the respondents had made improvements upon the suit property by spending Rs.2,00,000/-. The pleadings of the parties gave rise to the following issues:-
(1) Whether the ostensible sale price of Rs. 1,20,000/- was fixed in good faith or actually paid? If not, what was the market value of the suit-land at the time of its sale? O.P. Parties.
(2) Whether the plaintiff has superior right of pre-emption qua the vendees/defendants? OPP.
(3) Whether the plaintiff has fulfilled the requirements of Talabs before the institution of this suit?
OPP.
(4) Whether the plaintiff has no cause of action and locus standi.? OPD.
(5) Whether the defendants have improved the suit-land and incurred Rs.20,000/- on it and is entitled to recovery from the plaintiff, in case to recovery from the plaintiff, in case the suit is decreed? OPD.
5-A. Whether the report of Commission is against the faits and liable to be cancelled? OPD.
(6) belief.
2. The parties produced their respective evidence. The learned trial Court found issue No. 1 in favour of the defendants. He decided issue No. 2 in favour of the plaintiff. Issue No. 3 was decided against the plaintiff. Issues Nos. 4, 5 and 5-A were decided against the defendants. Since issue No. 3 was decided against the plaintiff, learned trial Court dismissed the suit vide judgment dated 2.11.1993.
Feeling aggrieved the petitioner filed an appeal in the Court of Additional District Judge, Muzaffargarh which met the same fate vide judgment dated 27.9.1993.
3. Learned counsel for the petitioner submits that he will assail the judgments of &e to Courts below on issue No. 3 only. He contends that Talabs were not only asserted in the plaint but was also proved by cogent evidence and sending the registered notices to the respondents.
4. Admittedly the notices were not sent to all the respondents. The land in dispute is indivisible and, therefore, even the evidence produced by the petitioner was believed, a partial decree could not be passed in his favour. Talab-e-Mowasibat was made by P.W.3 Muhammad Ramzan Shah as general attorney of the petitioner, although this authority did not vest in him at the relevant time.
5. The close examination of the evidence produced by the petitioner reveals that the petitioner while invoking the second Talab i.e. Talab-e-Ishhad, did not refer to Talab-e-Mowasibat although non-reference to the same was Atta! To the claim of pre-emption. Reliance can be placed upon Muhammad Lokman Mondal v. Amir Ali Mondal and others (PLD 1969 Dacca 64) wherein it was observed:- "It will, therefore, be seen that after having made Talab-e-Mowasibat, the preemptor has to affirm his intention with the least practicable delay referring expressly to the fact that Talab-e-Mowasibat had been made. It, therefore, requires the pre-emptor to make an express reference to Talab-e- Mowasibat. In this case there is no finding, nor any evidence has been pointed out to me that a reference was made to Talab-e-Mowasibat while making Talab-i-Ishhad. This omission at the time of making the Talab-i-Ishhad is indeed fatal to the claim of preemption.
The view expressed above, finds support on a decision of the Calcutta High Court in the case of Rujjub Ali Chopedar v. Chundi Chum Bhadra and others (1). In that case a lull Bench of the Calcutta High Court consisting of Petheram, C.J. Princeppigot, O'Kinealy and Ghose, JJ. Held that it was necessary that when performing the High Court Talab-i-Ishhad the pre-emptor should declare that he had made the Talab-e-Mowasibat. To the same effect is the decision in the case of Mubarak Hussain v. Kaniz Bano and others (2). In that case a Division Bench of the Allahabad High Court, consist of Stanley, C.J., and Surkitt, J, held that express reference to Talab-e-Mowasibat is necessary when second demand, namely Talab-i-Ishhad is made. This question also came for consideration in the case of Sadiq Ali v. Abdul Baqi Khan and another (3). The view expressed was that if the preemptor is making the second demand tailed to call the attention of the witnesses to the fact that he had already made the first demand, the second demand was not valid. A Division of this Court consisting of Amin Ahmed and Chaudhary, JJ.. As their Lordships then were, held in the case of Nazir Ahmed and others v. Muhammad Sher Ali and another (4) that inasmuch as at the time of making the second demand, that is Talab-i-Ishhad before witnesses, no reference was made that the pre-emptor had already made the first demand of Talab-e-Mowasibat, the second demand was not made in accordance with law, and the preemptors omission to made such reference was fetal to his claim."
In Anwar Ali v. Shah Nawaz and others (PLD 19S9 Karachi 264) the same aspect of the matter was examined wherein it was observed:- "Counsel for the applicant, however, referred to the observations in Hussain Bux v. Mir Muhammad (PLD 1985 Kar. 161) by another learned Single Judge of this Court (Ibadatyar Khan, J.) who is of the opinion that omission on the part of a pre-emptor to mention Talab-e- Mowasibat at the time of making Talab-i-Ishhad is not fetal to his right of pre-emption which he had acquired under Muhammadan Law and which is a substantive right. The learned Judge seems to have departed from the recognized view of the various High Courts of the Sub- Continent, namely, High Courts of Calcutta, Allahabad, Dacca and Sindh and thus also deviated from the established rule of stare decisis. Reference may be made to Rujjab Ali Chopedar v. Chundi Chum Bhadra and others (F.B.)
(ILR 17 Calcutta 543), Mubarak Hussain v. Kaniz Bano and others (D.B.) (ILR 27 All. 160), Sadiq Ali v.
Abdul Baqi Khan and another (D.B.) (ILR 45 All. 290), Abbasi Begum v. Fazal Hussain, D.B. (1898) 20 All.457), Nazir Ahmed and others v. Muhammad Sheir Ali and another (PLR 5 Dacca 757), Jadal v.
Abdul Majid (PLD 1978 Kar. 732) by Z.A. Channa, J. And 1st Appeal No. 1 of 1980 of this Court by my leaned brother Ajmal Mian, J. (now Chief Justice). In all these cases it has been consistently held that non- reference in the second demand to the earlier demand was fatal to the claim of pre- emption.
6. The upshot of the above discussion is that this petition is without any merit and is hereby dismissed in limine.