' DEEDAR HUSSAIN SHAH, J.---Leave to appeal is sought against the judgment, dated 22-11-1999, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Civil Revision No,575-D of 1998.
2. The facts, in brief, are that Sajawal Khan and Dilawar Khan, respondents herein, filed two separate suits against Muhammad Siddique and others, appellants herein. The learned Civil Judge after framing the issues and recording evidence of the parties, dismissed the suit filed by Dilawar Khan, whereas the suit filed by Sajawal Khan was decreed to the extent of Khasra No,1630, measuring 15 Kanals and 12 Marlas, through judgment, dated 11-3-1996.
3. Feeling aggrieved, the petitioners filed an appeal before the Additional District Judge, Jhelum, which was dismissed vide judgment and decree, dated 19-11-1998, the relevant paragraphs of the judgment are reproduced below:-- ' "An anxious consideration of the pros and cons to the contentions raised on behalf of the contestants, in the light of the pleadings and the data available on the records, leads me to observe that:--
(i) The fact of making Talb-e-Muwathibat in the Majlis relevant to receipt of news about the sale has been concisely pleaded as a matter of fact in the plaint. In virtue of two different transactions, calling for two separate Talb-e-Muwathibat independent of each other and in so far as the omission on the part of the plaintiff is concerned, Khani Zaman's case is not attracted here. Rather, a liberal interpretation, as envisaged in the earlier, authority of 1997, has been rightly applied to the instant case because the plaint satisfies the legal requirement on the subject of Talb-e- Muwathibat and Talbe-Ishhad and the allowance always extended by the Hon'ble superior Courts and the inarticulate drafting of the pleadings in Mofusil has carried the day for the respondents in its right earnest.
(ii) The concept of indivisibility is irrelevant to the decree of a specific Khewat, Khatooni and Khasra in full and the argument about partial pre-emption has been misconceived by the appellant in this case. Almost to the same strain remain the position of the apportionment of the price and the principle of sinker has also been attracted here with full force.
(iii) The learned trial Court has dilated upon each and every material, factual and legal aspect of the matter in controversy in precise details and dealt with each and every issue in its right earnest and there is nothing wrong either with the reasoning, findings or conclusion under any one of the crucial point in issue.
(iv) The appellant has misdirected the case-law on the point of Talb-e-Muwathibat; indivisibility of the estate, preferential right of preemption and the proportionate price. Reliance of the respondent is rather in line with the facts and circumstances of this case.
(v) The impugned judgment and decree suffer from no defect in fact or legal infirmity nor do the same warrant interference in appeal.
' In the light of the above discourse, baseless, this appeal fails. The same is hereby dismissed with costs. Counsel fee is fixed as Rs,2,000."
' Thereafter, the petitioner filed Civil Revision No,575-D of 1998 in the Lahore High Court, which was also dismissed in limine vide impugned judgment, dated 12-11-1999. Hence, this petition.
4. Mr. Fazal Elahi Siddiqui, learned Advocate Supreme Court for the petitioners contends that the right of pre-emption is based upon the sayings of the Holy Prophet (peace be upon him) and that time is of the essence of the whole transaction, so that sitting in the same Majlis (be it only of a few minutes) where the news of sale is broken for the first time, if Muwathibat is not made by the end of that sitting it would be presumed that the claimant has forsaken his demand/claim; that the right to pre-empt has been given not to help the accretion of property but only to remove any possible discomfort/injury to the pre-emptor in the user of his property on account of the introduction of a stranger in the neighbourhood; and that the Courts below had not properly appreciated the evidence. Learned counsel has cited Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 36), Shah Hussain v. Khani Zaman (PLD 1996 Peshawar 73), Muhammad Ramzan v. Lal Khan (1995 SCM R 1510), Khani Zaman v. Shah Hussain (PLD 1998 SC 121), and Amir Jan v. Ghulam Muhammad (PLD 1997 SC 883). He also referred to Hedaya, Cahpter II showing the claims to Shaffa, which are of three kinds.
5. For the decision of this petition it would be very much pertinent to refer to the evidence recorded by the trial Court, which was also examined by the First Appellate Court as well as by the High Court in the revision. It is born out from the record that Sajawal Khan respondent-pre-emptor announced his Talb-e-Muwathibat in his house and his right of pre-emption and he intends to claim the same as is mentioned in para. 4 of the plaint. He ' made such assertion in the presence of Muhammad Ali and Sakhi Muhammad who were sitting in his house with him. Thereafter within two weeks' time he issued registered A.D. Notices which were sent to the vendee/defendants. Notices have been produced in evidence before the trial Court which are Exh.D.W.5/9 to Exh.D.W.5/12, which were duly received by the vendee defendants but no reply was given. The pre-emptor, respondent No,1, further stated that he has got adjoining land and is also in the use of common passage. In this case Javed-ur-Rehman, Registry Clerk, was examined as D.W.5/1 who produced record regarding Registry Nos.826 to 829, dated 5-4-1993, receipts of which have also been produced as Exh.D.W.5/1 to Exh.D.W.5/4. In support of registered letter Asad Kamal, Postman was examined as D.W.5/2, who deposed that he delivered the registered post to the vendee defendant. Receipts A/D in this regard have also been produced as Exh.D.W.5/5 to Exh.D.W.5/8; he further submitted that the vendee/defendant also signed the same receipts. It is further case of the preemptor that the suit land is adjoining to the courtyard of his Buse and that he has the right of pre-emption. Muhammad Ali and Sakhi Muhammad appeared in the Court and supported the case of the respondent; that notice claiming the right of pre-emption sent through registered A.D. Also bears the signature of Muhammad Ali and Sakhi Muhammad.
' Subsection (3) of section 13 of the Punjab Pre-emption Act provides: "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". In the plaint as well as in the evidence the respondent has proved the requirement of Talb-i-Muwathibat and subsequently he filed the suit in the Court where the evidence was adduced by the parties as mentioned hereinabove and the suit of the respondent was decreed.
6. In view of the above facts; now we would like to discuss the case law referred to above by the learned counsel for the petitioners. PLD 1997 SC 883, supports the case of respondent, inasmuch as immediately after knowing of the sale the respondent made Talb-i-Muwathibat and without loss of time issued required notices to the vendee-respondent which were not replied. In 1995 SCM R 1510, their Lordships after going through the evidence held that the appellant failed to prove the making to Talb-i-Muwathibat inasmuch as there was neither any averment of making of Talbi-Muwathibat nor any evidence in regard thereto; whereas in the case in hand the respondent had made Talb-i- Muwathibat and issued notices bearing signature of the witnesses who had supported the case of the respondent, as such this authority is different from the facts of this case. In PLD 1998 SC 121 their Lordships have been pleased to hold that the detail regarding time and place of Talb-i- Muwathibat is an important factor because the period of limitation for Talb-i-Ishhad is calculated therefrom. The contesting respondent in his plaint as well as in his registered notice through witnesses have proved his Talb-i-Muwathibat, which requires for accepting the claim of the pre- emptor. In PLD 1996 Peshawar 73, the learned Single Judge in Chambers observed that "Talb-i- Muwathibat is neither distinctly alleged being independent of Talb-i-Ishhad nor it is proved in the light of the pleadings. Unless Talb-i-Muwathibat is proved in a pre-emption case, no right of pre- emption comes into activation. Both the Courts below have wrongly appreciated the evidence and have fallen into material irregularity" whereas in the present case Talb-i-Muwathibat has been rightly proved by the respondent. In 1999 SCM R 958, at page 963, this Court after going through, the evidence observed as under:-- ' "The only question surviving for determination in this appeal is whether the pre- emptor/respondent has been rightly held to have made 'Talb-i-Ishhad' strictly in accordance with section 13 of the Act. The trial Judge appears to have ignored the well entrenched proposition of law that in civil matters it is preponderance of evidence which goes to prove or disprove a point in issue. Against preponderance of evidence in civil matters is not judged on the touchstone of the proof in a criminal matter where the charge is required to be proved to the hilt on the basis of unimpeachable evidence."
' In this precedent this Court also referred to C.As. Nos.44, 573 and 574 of 1997 titled Sar Anjam v.
Abdul Raziq, decided on 30-4-1998, in the following terms:- ' "The above survey of case-law would, thus, lead us to the conclusion that the pleadings of the parties should contain only material facts and are, therefore, not required to contain the gist of evidence and names of witnesses. The suit for pre-emption is no exception to this general proposition which is by now well-entrenched in our judicial system.
' We have, therefore, no hesitation to hold that it is not a sine qua non for the pre-emptor to specify in the plaint almost all the witnesses in whose presence he had made Talb-i-Muwathibat and also specifying the time and then to make the said Talb under section 13 of the Act."
' In PLD 1997 SC 883, at page ,885, the observations of their Lordships are as follows:-- ' "The question whether requirements of section 13 of the Act are fulfilled is a pure question of fact as held in the very judgment on which reliance has been placed by the learned counsel for petitioners. Such question was put to issue and the parties led evidence and such issues. The finding given as such cannot be disturbed merely on the ground that details of Talb-i-Muwathibat have not been stated in the plaint."
' As regards Hedaya, Chapter II, Hamilton, at page 551, has referred to the following paragraph:- ' "When news of the sale is brought to the Shafee it is not necessary, according to Haneefa, that he asserts his intention of claiming the Shaffa before witnesses unless the news be communicated to him by two men or one man and two women, or on upright man. The two disciples maintain that he ought to declare his intentions before witnesses as soon as the news is communicated to him by one person, being either a freeman or a slave, a woman or a child, provided, however, that the person be, in his belief; a true speaker."
7. A perusal of the above paragraph also establishes that the respondent in accordance with the requirements of pre-emption has expressly desired to pre-empt the land and he sent necessary notices through registered A.D. And thereafter submitted the plaint. The respondent also appeared as a witness and the witnesses who appeared on his behalf also fully supported his case.
Documentary evidence furnished by the parties was properly examined, analyzed and assessed by the trial Court as well as the First Appellate Court and the High Court. The respondent proved Talb- i-Muwathibat and Talb-iIshhad and without loss of time he approached the Court for the relief and his suit was decreed.
8. We have also minutely examined the evidence and do not find any irregularity, illegality, misreading or non-reading of the evidence by the Courts below. The impugned order does not suffer from any jurisdictional error, which is not open to exception. We are of the considered opinion that the findings of the Courts below are in accordance with the principles settled by this Court.
9. For the facts, reasons and case-law aforesaid, this petition being devoid of force, is dismissed and leave refused. C.M.A.938 of 2000 is also dismissed.