' The respondents purchased the suit land measuring 74 Kanals and 7 Marlas, from Muhammad Hanif Khan and others through registered sale deed dated 11-10-1987. The petitioners claiming to be the co-sharers of the property in question, having superior right of pre-emption under the lslamic Common Law, hiked a suit for pre-emption on 10-10-1988. This suit was earlier dismissed in view of Said Kamal's case, but subsequently, as mutually agreed between the parties, it was restored.
Thereafter, respondents/vendees filed an application under Order Vll, Rule 11, C.P.C, seeking rejection of the plaint, on the ground that the petitioners have not made Talbs in accordance with the provisions of section 13 of the Punjab Pre-emption Ordinance 1990/1991. This application after contest was rejected by the learned Civil Judge, vide order dated 4-61991. Aggrieved, the petitioners preferred a revision petition, which has been allowed by the learned A.D.J. On 8-2-1992, resultantly, the plaint of the petitioner's suit has been rejected.
The view taken by the learned revisional Court is that Talb-i-lshhad, has not been made by the petitioners in accordance with the provisions of section 13(3) of the Punjab Pre-emption Ordinance/Act, which requires that a notice has to be issued to the vendee within two weeks after making the first demand i,e, Talb-i-Muwathibat, attested by two truthful witnesses under registered cover, acknowledgment. Due. The learned reisional Court has observed as follows.-- "This is and admitted fact that no notice in writing was sent to the vendees to comply with the above mentioned mandatory provision of law. There is also 'restriction to issue notice in writing, attested by two truthful witnesses under registered cover acknowledgment due not later than two weeks from the notice of Talb-i-Muwathibat. Plaint does not disclose that Talb-i-lshhad was made in. The presence of two truthful witnesses and notice in writing was sent to the vendees. In this situation, the requirements of Talb-i-lshhad have not been fulfilled without complying with the- talbs i,e, Talb-iMuwathibat and Talb-i-lshhad. The right of pre-emption of a person shall be extinguished and there is no Option left with the Court. The learned trial Court was not justified to hold that the requirements of Talb-i-lshhad have been fulfilled by the pre-emptors in accordance with law.
On the basis of above, as mentioned earlier, the plaint of the petitioners was rejected.
2. Learned counsel for the petitioners contends that the suit for pre-emption was filed during the interregnum period, when there was no codified law of pre-emption in force. Thus petitioners maintained an action on the basis of principles of Islamic Common Law, which though require making of Talb-i Muwathibat and Talb-i-lshhad, but there is no requirement for issuance of notice in writing under registered cover/acknowledgement due by attestation of two truthful witnesses, as enunciated by section 13(3) of Punjab Pre-emption Act, 1991. The provision of the Act, cannot be retrospectively applied so as to non-suit the petitioners for non-fulfilment of such requirement, which was not the law of the land at the relevant time.
3. I have heard learned counsel for the parties.. According to sub section (2) of section 35 of the Punjab Pre-emption Act, 1991, it is clearly mentioned that for a suit of pre-emption, instituted in between 1-8-1986 and 28-3-1990, in which right of pre-emption was claimed as is available under the Act, it shall be sufficient for a pre-emptor to establish that he has made Talb-i-lshhad in presence of two truthful witnesses. Thus in view of saving provision, the petitioners were not required to prove in strict terms the issuance of notice of Talb-i-lshhad to the respondents in accordance with the provisions of section 13(3). Rather they had only to assert and prove that the second talab i,e, Talb-i-lslthad was made in presence of two truthful witnesses. It may also be pertinent to state here that notwithstanding the provisions of section 35, the provisions of section 13(3), could not be retrospectively applied, so as to noti-suit the petitioners lbr non-fulfilment of the requirement of above section, when it was not even the law in force.
' In the light of above, it is held that the learned revisional Court has committed an illegality in rejecting the plaint of the petitioners, by applying the provisions of the Act, which otherwise were not attracted in the case in hand, therefore, this petition is allowed, the order impugned of the revisional. Court is set aside; the case is remanded to the trial Court to .Decide the same in accordance with law.