' Appellants filed a suit for possession through pre-emption to pre-empt the sale of the suit land in Mouza Nainman Wali, Tehsil Kharian, District Gujrat. Contesting written statement was filed by the respondent who also moved an application under Order VIII, rule 11, C.P.C. For rejection of plaint on the ground that Mst. Raj Begum, through whom appellants had filed their suit, was not the authorised attorney, competent to file the said suit. The learned Civil Judge, vide order/decree dated 12-3-1992 dismissed appellants' suit with costs. Appeal filed there against was also dismissed by the learned Additional District Judge, Kharian through judgment and decree dated 16-3-1995. Though/dismissal of the suit was converted to rejection of plaint under Order VIII, rule 11, C.P.C. By the learned Additional District Judge, hence the present second appeal.
2. The learned counsel for the appellants concisely but arduously contended that the suit was filed through a properly appointed attorney and during appeal another power of attorney in favour of Mst. 'Raj Begum was placed on record through which the appellants ratified the acts done by said attorney on their behalf thus also rectified the absence of authority if any, bestowed upon her. It was further contended that as held in 1991 MLD 364, that right of pre-emption was attached to the property under sale. And that upon grant of second power of attorney, the defect of the original delegation and as well as in filing of the suit was rectified as was held in 1987 CLC 1366, 1987 CLC 1366, PLD 1990 Lahore 208. It was further stated by the learned counsel for the appellant that act of filing etc., was a matter of procedure which was rectifiable and was so done, therefore, the plaintiff/appellant should not have been denied the opportunity of advancing their case on merits.
Contrarily, the learned counsel for the respondent supported the impugned judgment and decrees and rejection of plaint on the ground that mere examination of the plaint would show that the Talbs were not exercised by the appellants in,accordance with law wherefore plaint was barred by law. It was further contended by respondents counsel that rectification could not be done with retrospective effect of acts which were not authorised at all.
3. I have considered the arguments of the learned counsel for the parties and have also examined the record. Upon Court question, the learned counsel for the appellants conceded that:--
(i) Appellants were residing in United Kingdom and had not personally made Talbs: and
(ii) Talbs were also made and the right of pre-emption was exercised through their mother/attorney Mst. Raj Begum and the suit as well as appeal was also filed through her.
4. The right of pre-emption of the person can only be exercised by such person after making demands/Talbs in the manner and order prescribed in section 13 of the Punjab Pre-emption Act, 1991, which is reproduced as under:-- "Demand of pre-emption.---(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders, namely:--
(a) Talb-i-Muwathibat;
(b) Talb-i-Ishhad; and
(c) Talb-I-Khusumat.
Expalantion 1.-' Talb-I-Muwathibat' means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption.
' Note.--Any words indicative of intention to exercise the right of pre-emption are sufficient.
(II) 'Talb-i-Ishhad' means demand by establishing evidence.
(III) 'Talb-i-Khusumat' means demands by filing a suit.
(2) When the fact of sale comes within the knowledge of a preemptor through any source, he shall make Talb-i-Muwathibat.
(3) 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 preemption: ' Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-iMuwathibat under subsection (2) and Talb-i-Ishhad under subsection (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption".
5. Bare reading' of the above provisions of law shows that right to pre-empt a sale gets extinguished unless the pre-emptor makes demands as laid down in section 13 (ibid). It is mandatory that prior to institution of a suit, a person claiming right of pre-emption must make demands otherwise he shall have no right to pre-empt a sale or to file a suit for pre-emption.
6. In the present case, sale was made on 17-10-1991. The special powers of attorney, were executed in favour of Raj Begum by the appellants on 20-11-1991 and were not raised at Pakistan Consultant by the United Kingdom on 21-11-1991 and was registered in Pakistan on 10-12-1991 respectively bearing Documents Nos.847 and 848 on Behi No,4, page No,39. The suit for pre-emption was filed on behalf of appellants on 17-12-1991, i,e, within the six days of the registration of the said powers of attorney.
' It is thus evident that Mst. Raj Begum had no power of attorney in her favour till 10-12-1991 to make necessary demands under section 13 of the Punjab Pre-emption Act, 1991 as prerequisite for maintenance of appellants' claim of pre-emption.
' In para. 3 of the plaint, the appellants have pleaded that upon gaining knowledge of the sale, they made Talb-e-Muwathibat, and then Talb-e-Ishhad through Registered A/D Notice. No date, source, place or time of knowledge of sale has been specified. Even dates of Talb-eMuwathibat and Talb- e-Ishhad have not been particularized. Notice of Talb-e-Ishhad bear the date of 10-12-1991 and postal receipt is dated 11-12-1991. So if Talb-e-Ishhad was made on 10-12-1991 (the date of registration of power of attorney in Pakistan) then Talb-e-Muwathibat must have been exercised within two weeks preceding thereof when Mst. Raj Begum had no power of attorney or authority.
The only inference possible from above-stated sequence of events is that no Talbe-Muwathibat was made by appellants themselves or their attorney who was not clothed with requisite authority at the time relevant for making Talab-e-Muwathibat.
7. Even otherwise, the above-referred powers of attorney respectively made by appellants in favour of Mst. Raj Begum contained no authority to make demands or Talbs for and on behalf of the appellants. Restricted powers of attorney only authorized the agent/attorney "to act and appear in any Court in connection with my land and property in Pakistan...". The suit land was not the land owned by appellants to be categories as appellants' property in Pakistan. Mst. Raj Begum was not conferred with the power to raise demands upon lands not owned by the appellants. In view of the above, appellants have not been able to plead, show or particularize in the paint that the demands/Talbs were properly exercised and made by them to entitle them to file a suit for pre- emption. In absence of such Talbs their right to pre-empt a sale stood extinguished. The plaint, therefore, did not disclose a triable cause of action and the same was duly rejected by the learned Additional District Judge through the impugned judgment and decree, though, on the basis of absence of attorney's authority to file the suit.
' The learned counsel for the appellants has not been able to show that Mst. Raj Begum was conferred the authority to file, maintain and pursue a suit of pre-emption on behalf of the appellants. There is no need to go into the effect of subsequent ratification by appellants of the institution of the suit by their attorney, as I have,already recorded my opinion that Mst. Raj Begum had no authority for and on behalf of the appellants to at least make Talb-e-Muwathibat.
Therefore, appellants' right to pre-empt the sale stood extinguished. Presuming that the act of incompetent attorney to file a suit on behalf of the principal could be rectified through subsequent ratification by appellants, yet act of making Talbs prior to a suit for pre-emption, being strictly time tied, cannot be rectified through subsequent ratification. Talb-i-Muwathibat has to be exercised instantaneously upon knowledge of sale, to be followed by Talb-i-Ishhad within two weeks from the date of knowledge/Talb-iMuwathibat. Talabs, if not so made, destroy the claim to pre-empt the sale. Relinquishment so occurring is absolute and cannot be undone by any act of resurrection, rectification or ratification. Having concluded that appellants' right to claim pre-emption stood extinguished, no decision need be made on other grounds urged by the learned counsel for the appellants as the same relate to the maintenance of the suit and not to the right to maintain a suit.
8. In view of the above, there is no justification to interfere in the impugned judgment and decree.
This appeal is, therefore, dismissed being without merits. Parties are left to bear their own costs.