' Brief facts of the instant civil revision are that the petitioner filed suit for possession through pre- emption in respect of land measuring 33 kanals situated at Chak No,92 N.B. Tehsil and District Sargodha, sold in favour of respondents vide Mutation No,470 dated 15-11-1987 for consideration of Rs,2,00,000 on the basis of being co-owner in khewat, common source of irrigation and path adjacent to her land. The suit was resisted by the respondents/defendants on various grounds denying superior right of pre-emption of the petitioner and consideration money. They raised objections with regard to limitation and valuation of the suit for the purpose of court-fee and jurisdiction and also maintainability of the suit. Out of pleadings of parties the learned trial Court formulated the following issues:--
(i) Whether the plaintiff has got superior right of pre-emption qua the defendant? OPP.
(ii) Whether the plaintiff has asserted Talbs according to Islamic Jurisprudence? OPP.
(iii) Whether Rs,99,000 were fixed in good faith and actually paid as the sale price of the suit land?
OPP.
(iv) If Issue No,3 is not proved what was the market value of the suit land at the time of its sale? OPD
(v) Whether the suit is not maintainable in its present form? OPD.
(vi) Whether the suit is barred by limitation? OPD.
(vii) Whether the proper court-fee has not been affixed on the plaint? If so its effect? OPD.
(viii) Whether the defendants has made improvement of the suit property? If so, to what extent?
And to what effect? OPD
(ix) Relief.
2. Both the parties produced their evidence. Learned trial Court vide judgment and decree dated 12-4-1992 dismissed the suit filed by the petitioner on the ground of lack of Talbs and non-service of registered notices. Being aggrieved of said judgment and decree passed by learned trial Court, petitioner filed an appeal before the learned District Judge, which was dismissed vide judgment and decree dated 15-11-1992 passed by the learned Additional District Judge, Sargodha. Now the petitioner has assailed both the concurrent findings of learned Courts below in the instant civil revision.
3. Arguments advanced by learned counsel for the petitioner are that suit was filed during the interregnum period of 1986 till 1990 as the sale was effected on 15-11-1987 and suit was filed on 21- 11-1988. The Punjab Pre-emption Act, 1991 came into force in the year, 1991, therefore, no statute under Pre-emption Act was available during the interregnum period and the right of preemption could be enforced only under the Islamic Law and it was not necessary at all to make Talbs by sending registered notices to the vendee. The requirement of notices came only through Ordinance in the year 1990 and later on it was promulgated in the Punjab Preemption Act, 1991. In Islamic Law Talibs can be proved through oral evidence and the petitioner by producing two witnesses has proved the Talbs, therefore, both the learned Courts below have not touched the issues and as such have failed to exercise jurisdiction vested in them under the Islamic Law and the learned Courts below have misread the evidence. He has relied on "Muhammad Khan v. Subah Sadiq and another (1999 YLR 923), wherein it was held that "period of limitation prescribed as four months as per section 30 of Punjab Pre-emption Act, 1991, was not applicable to suits relating to interregnum period under section 35(2) of the Punjab Preemption Act, 1991. Talb-i-Ishhad came into force on the basis of Punjab Pre-emption Ordinance, 1990, which came into force on 29-3- 1990". Question relating to Talb-iIshhad was not applicable in the circumstances": Muhammad Hanif and others v. Basharat Ali and another (2000 YLR 972), where it was held that "pre-emption suit filed during interregnum period, such suit could be maintained in accordance with the provisions of Islamic Law of Pre-emption provided the pre-emptor fulfilled the pre-requisites for enforcing such rights which was a precondition to file a suit for pre-emption---such suits which were filed during the interregnum (1-8-1986 to 28-3-1990) and were dismissed, stood protected by the provisions of section 35 of Punjab Pre-emption Act, 1991, by filing of an application and were to be decided under the prevailing provisions of pre-emption law. Question of limitation is always a mixed question of law and fact and the same cannot be decided without recording of evidence."
Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCMR 314), where it was held that "requirement of talbs---plaintiff could not be non-suited on the ground that date, time and place when and where the plaintiff learnt about the sale transaction, were not specifically pleaded in the plaint. No mis reading or non-reading of evidence was pointed out except a passing reference to the evidence. The High Court set aside the concurrent findings on the ground that date time and place, when and where the plaintiff learnt about the sale transaction, were not specifically pleaded in the plaint. On such ground plaintiff could not be non- suited. He further submitted that requirement of notice was not available when suit was filed. Suit could not be dismissed on the basis of law which was not available at that lime.
4. Learned counsel for the respondents submits that the suit on its face is completely incompetent as it is settled law by the Superior Courts that if an omission is made by the plaintiff in the plaint about Talb-iMuwathibat which has been recorded in evidence and proved, then the omission in the plaint will not be injurious to suit of plaintiff. But in the present case the plaintiff has averred in paragraph I of her plaint that she made a prompt demand of Talb-i-Muwathibat but she did not prove an iota of evidence of Talb-i-Muwathibat in the evidence. In the evidence of P.Ws.1, 2, 3 and P.W.4 the plaintiff does not mention any word about Talb-i-Muwathibat and how the petitioner can prove Talb-i-Ishhad which follows Talb-iMuwathibat as pleadings are not evidence and plaintiff has failed to support her assertion in the plaint and in the evidence. So, this suit cannot stand on its feet and is liable to be dismissed as if Talb-i-Muwathibat is not proved in evidence, then Talb-i- Ishhad will not be read in evidence because a party cannot go beyond its pleadings. He further submitted that sale took place on 15-11-1987 through Mutation No,470 and the plaintiff's evidence shows that she and her witnesses came to know about the sale transaction after six months and after that she was to make jumping demand i,e, Talb-i-Muathibat about the property in dispute.
Statement of P.W.3 {{ARABIC TEXT}} shows that it is extremely time-barred as preemption suit was filed on 21-11-1988 and they went to the vendors and showed their desire to purchase the property after 5/6 days later. The limitation for filing the preemption suit is four months and not one year. The present suit was not decreed at any stage before December, 1993, therefore, the limitation for filing the suit will not be one year, but it will be four months. But the present suit was filed after one year and seven days as the transaction of sale took place on 15-11-1987 and the suit was filed on 21-11-1988. Further submits that even at the time of making Talb-i-Ishhad there must be affirming of Talb-i-Muwathibat, but in the present case there is no Talb-i-Muwathibat. He relies on Gul Hassan Shah v. Mulszim Hussain Shah 1996 SCMR 294. Further submits that instant civil revision is technically liable to be dismissed as the judgment and decree passed by the learned Appellate Court is not placed on the file. In this case the petitioner herself appeared as witness and admitted close relationship with the vendor and she is resident of Chak No,95, where the sale took place.
5. I have heard learned counsel for the parties and perused the record. In paragraph 4 of the plaint, the plaintiff has narrated Talb-iMuwathibat. In the written statement the defendant attacked the suit on various grounds that suit being incompetent, deficiency of court-fee, talbs not made according to Islamic principles and real consideration of sale transaction. P.W.1 is vendor, who stated on oath that he had not given any notice to the plaintiff before selling the property to plaintiff and that the plaintiff is his relative. P.W.2 Muhammad Hanif and P.W.3 Raham Din are the witnesses which the plaintiff averred in paragraph 4 of the plaint that she made jumping demafld in their presence. Perusal of statement of P.W.2 shows that he has not uttered a word about Talb-i- Muwathibat and similar is the statement of P.W.3, who has not also uttered any word about the jumping demand. However, both these witnesses stated that when the defendant came to fetch "Batai" it transpired that property has been sold. Mst. Hajaran Bibi plaintiff went to the Chak and told the defendants/respondents/vendors to leave the land and take money, then he, Raham Din and Iqbal came to the defendants and told them to take money and leave the land. In cross- examination P.W.2 admitted that he went to the defendants after six months of sanctioning of mutation when they came to get the delivery of possession. Similar is the statement of P.W.3 Raham Din, who stated on oath that when defendants came to fetch batai, the plaintiff told them to take money and transfer the land in her name and they refused and he, Iqbal and Hanif went to the defendants and told them to take Rs,99,000 and transfer the land in the name of plaintiff and that plaintiff is his paternal aunt and Muhammad Hanif is brother-in-law of the plaintiff. He further stated in his cross-examination that he went to the defendants after 5/6 days of filing the pre- emption suit. Mst. Hajran appeared as her own witness and stated on oath that she went to the defendants and told them to return the land to her in the presence of Hanif and Raham Din P.Ws.
And later on Raham Din, Hanif and her son Iqbal went to the defendants at Depot and told them to take money and return the land. She further admitted in her cross-examination that when the disputed land was sold the village people had come to know that it has been sold.
6. Now perusal of evidence of P.Ws. Shows that neither the plaintiff nor her witnesses uttered a single sentence of making the ceremonious jumping demand. The learned trial Court after appraisal of evidence decided Issue No,1 in respect of right of preemption in favour of the plaintiff, Issues Nos.2,3 and 4 in respect of Talbs, consideration and market value of suit land against the plaintiff and Issues Nos.5 and 6 regarding maintainability of suit and whether the suit is barred by limitation, against the defendant and Issue No,8 regarding improvement also against the defendants. Learned trial Court while deciding Issue No,2 against the plaintiff observed that it is admitted by P.W.3 that he 'came to know about the sale after six months while suit has been filed after one year and no explanation has been put forward. It is also admitted by the plaintiff that defendants refused to transfer the land in plaintiff's name. In this way Talbs according to Islamic Law of preemption are not proved to have been made. The learned trial Court also observed that registered notice has not been issued to the defendants by the plaintiff so Talibs have not been made according to Islamic Law of Preemption. The learned appellate Court observed that the plaintiff failed to send written notices to the respondents within time about Talb-i-Ishhad duly attested by two truthful witnesses under section 13 of the Punjab Pre-emption Act.
7. As far as Issue No,2 is concerned the requirement of Talb-i-Muwathibat and Talb-iIshhad are necessary ingredients of right of pre-emption as the right of pre-emption cannot be exercised unless the pre-emptor performed the ceremony of Talb-iMuwathibat immediately after hearing of the sale. In Noor Begum v. Muhammad Boota and 3 others PLD 1995 Lahore 344 it was held that "demand of Talb-i-Muwathibat was to be made in the same meeting and sitting without loss of any time." In the present case the plaintiff when she learnt about the sale, and her witnesses in their evidence have not uttered a single word about the demand of Talb-i-Muwathibat in the same meeting and sitting without loss of time, but they have uttered that when learnt about the sale, they went to the respondents to claim their superior right of pre-emption. In this case they have completely failed to prove Talb-iMuwathibat. The second demand is by uttering the same words in the presence of witnesses and to take money to the vendees in presence of witnesses and all these are legal requirements, which the pre-emptor is bound to fulfil even under the Islamic Law. It was held in PLD 1995 Lahore 344 the case as discussed above that suit filed after four months during interregnum period when no statutory law was in force was not maintainable. The same principle has been settled in Gul Hassan Shah v. Mulaazim Hussain Shah (1996 SCMR 294) where leave to appeal was granted to consider the question whether evidence is adduced by the defendant in trial Court amounts to Talb-i-Muwathibat. It was further held in this judgment that element of making of a demand in form of declaration within contemplation of section 13(2) of Act in "Majlis" wherein he got knowledge of sale in dispute, is lacking. Therefore, the Talbs are not made according to the requirement of section 13 of the Act, which are the substantive part of law of pre- emption. It was held in Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 that the pre-emptor has to prove that as soon as plaintiff learnt about the sale, he shall without any delay immediately declare that he would exercise the right of pre-emption and further this declaration shall have been made before the disbursing of Majlis in which the plaintiff gained the knowledge about the sale. Although during the interregnum period the Punjab Pre-emption Act, 1991 was not in force the sending of notice under section 13(2) is statutory requirement for Talb-i-Ishhad by sending notice in writing attested by two truthful witnesses through registered A.D. To the vendee confining his motion to exercise a right of pre- emption. In the present case Punjab Pre-emption Act, 1991 was not available, therefore, the statutory requirement of notice was not available, to this extent the findings of learned subordinate Courts are not justified. But on the other hand it is also a settled principle of law that Talb-i-Ishhad follows the Talb-i-Muwathibat. The perusal of evidence on record shows that none of the P.Ws.
Have uttered a single word about the Talb-iMuwathibat (jumping demand) therefore, the instant suit was liable to be dismissed on this score also.
8. Moreover, the present suit was filed by the petitioner after one year and seven days. Her suit was not decreed at any stage before December, 1993, the limitation for filing the suit was four months and not one year as is held by the Superior Courts, therefore, the requirement of Talibs are no proved. The instant civil revision being devoid of force is dismissed. No order as to costs.