ABDUL SHAKOOR PARACHA, J.---This appeal impugns the judgment and decree dated 9-2-1999, passed by Civil Judge. Gujranwala, dismissing the suit for possession through pre-emption filed by the appellant pre-empting the sale of land measuring 137 Kanals, 3 Marlas situated in Khasra Nos, 1028 to 1033, 1038, 1041 to 1046, 1116, 1117, 1126, 1131 to 1140. Khewat No,45, Khatuni No,180, in village Dogranwala, Tehsil Noshera Vikran, District Gujranwala, which was owned by Muhammad Mansha son of Ismail, Abdul Rehman son of Imam Din and Ghulam Muhammad son of Muhammad Ali who transferred the same to the respondents through registered sale-deed No,297 dated 30-3-1995.
2. The appellant asserted superior right of pre-emption on the basis of having adjacent land with the suit-land, Shafi Jar and common passage and irrigation. The appellant also stated in the plaint that the land was sold for Rs,4,00,000 but to defeat the superior right of pre-emption the amount of Rs,5,50,000 was fictitiously mentioned in the sale-deed. It was also stated that the appellant came to know of the sale of the suit-land on 8-7-1995 and in presence of Muhammad Malik and Bahadur Khan in the same meeting at 2-00 p.m. he performed Talb-e-Muathibat. Therefore, it is stated, notice was sent to fulfil the requirement of Talb-e-Ishhad.
3. The suit was resisted by the respondents by filing the written statement. It was asserted that the amount of Rs,5,50,000 was paid in good faith superior right of pre-emption of the appellant and fulfilment of Talbs in accordance with law by the appellant was also denied.
4. From the divergent pleadings of the parties. following issues were framed by the Trial Court:-
(1) Whether the suit property has not been properly described in the plaint if so, its correct description?
(2) Whether the plaintiff is estopped his words and conduct to file this suit? OPD.
(3) Whether the plaintiff actually made Talbs alleged in the plaint? OPD.
(4) Whether the plaintiff has got superior right of pre-emption qua the defendants in respect of the suit property? OPP.
(5) Whether the ostensible sale price of Rs,5,50.000 was fixed in good faith and actually paid by the defendants? OPP.
(6) If Issue No,5 is not proved then what was the market value of the suit-land, at the time of impugned sale? OPPs.
(7) Relief.
5. The plaintiff examined Muhammad Malik as P.W.1 and Muhammad Ghaus, General Attorney of the appellant-plaintiff as P.W.2. He has also placed on record documents Exh.P.I to Exh.P.8. On behalf of the respondents, Muhammad Nawaz one of the respondents appeared as D.W. I. The learned Civil Judge decided Issues Nos, 1 and 2 in favour of the plaintiff-appellant. Issue No,4 was also decided in favour of the appellant. Issues Nos,3 and 5 were decided in favour of the defendants. On Issue No,4 it was observed that the appellant-plaintiff has superior right of pre-emption qua the respondents in respect of the suit property. On Issue No,3 the learned Civil Judge proceeded to observe that the appellant has not fulfilled the requirement of Talb3. On Issue No,5 the finding of the learned Civil Judge was that Rs,5,50,000 were paid in good faith. On the basis of finding on Issue No,3 for non- performance of the Talbs under the law the learned Civil Judge proceeded to dismiss the suit of the appellant vide his judgment and decree dated 9-2-1999.
Since Issues Nos,1, 2 and 4 have been decided in favour of the appellant and no cross-objections have been tiled by the respondents. therefore, the findings on the above issues are maintained.
On Issues Nos, 5 and 6 no evidence has beep produced by the appellant to show that Rs,5,50,000 were not paid in good faith or that it was fictitiously entered in the sale-deed, therefore., we observe that Rs,5,50,000 the price of suit-land was paid in good faith. Findings on Issue Nos, 5 and 6 are also maintained.
Before us. the learned counsel for the appellant has argued that the finding on Issue No,3 regarding performance of Talbs has been given against the appellant by the learned Civil Judge by misreading of evidence. According to him, the appellant produced P.Ws.1 and 2 and himself also appeared to prove Talb-e-Muathibat which has totally been ignored by the learned Trial Judge.
We have examined the evidence with the assistance of the learned counsel for the appellant.
Muhammad Malik P.W.1 has stated that on 8-7-1995 In the meeting of Murad Khan, Bahadur Khan and Ghaus Khan, a person namely Saifullah told them that the suit-land has been sold. From the statement of Muhammad Malik, it is clear that the appellant has not stated on having the knowledge of the sale of the suit-land that he would exercise his superior right of pre-emption.
Similar is the position with Muhammad Ghaus, General Attorney of the appellant-plaintiff who appeared as P.W.2. In his statement he has said nothing about the announcement of superior right of pre-emption of the appellant. Saifullah, who had provided information about the sale of the suit- land has not been produced by the. appellant. It has been ruled in the cases reported as:- Gul Hassan Shah v. Mulazim Hussain 1999 SCMR 294: Muhammad Ramzan v. Lal Khan 1996 SCM R 294: 1995 SCM R 1510 .That pre-emption right cannot be exercised unless the pre-emptor has performed ceremony of Talb-e-Muathibat immediately on hearing of the sale. Plaintiff in every way has to prove that he had made such a demand before filing of the pre-emption suit. If the plaintiff fails to do so, the right of preemption extinguishes.
We therefore, maintain the finding of the learned Civil Judge by observing that the appellant has failed to prove that on obtaining the knowledge of sale on 8-7-1995 he made Talb-e-Muathibat in accordance with law.
As far as the making of Talb-eIshhad is concerned, notice of Talb-e-Ishhad has been produced on the record as Exh.P.1, which reveals that Muhammad Malik and Bahadur Khan are the attesting witnesses of the notice. 'The notice has not been signed or thumb-marked by these witnesses. We. therefore, hold that there is no performance of the requisite Talb-e-Ishhad as envisaged under section 13(3) of the Pre-emption Act, 1991. No proof of the fact has been produced that notice Exh.P.1 has been served to the respondents. Mere sending of notice is not enough in the matter. Receipt of such a notice by the defendant has to be established as held in Muhammad Rafiq v. Ghulam Murtaza (1998 M.L.D. 292). The finding of the learned Civil Judge, whereby he observed that the appellant has not performed Talh-elshhad, is also maintained.
For what has been discussed above, there is no force in this appeal which is dismissed accordingly with costs.