PERVAZ AHMAD, J.- The petitioner through this Civil Revision has assailed the legality and propriety of the judgments and decrees of learned Trial Court as well as first Appellate Court dated 13.7.2001 and 6.3.2002 respectively by virtue of which the suit for possession through pre-emption and the appeal against dismissal of suit were dismissed.
2. Briefly stated the facts are that the petitioner brought a suit for possession through pre-emption of the property detailed in the head note of the suit to have been sold by his real brother Dost Muhammad fora consideration Rs.80,000/- vide mutation No. 1160, dated 29.7.1997 but if! Order to deprive thejDresent petitioner from the exercise of right of pre-emption vested with him, the price was got recorded as Rs. 120,000/-, which is a fictitious price and not actually paid. The plaintiff claimed superior right of. Preemption being real brother and co-owner in the estate. The plaintiff on coming to know of the sale alleged to have, fulfilled the conditions of Talbs i.e. Talb-e-Muwathibat on 8.8.1997 (date of knowledge of the sale) and that of Talb-e-Ishhad on 9.8.1997. The defendant contested the suit on various grounds including the ground of actual payment of consideration .As Rs. 120,000/- and to have incurred certain other expenditure on payment of registration fee etc. On the pleadings of the parties, the Trial Court framed the following issues:-
(1) Whether the plaintiff has got no cause of action and locus standi to bring the suit? OPD (2)
Whether the plaintiff is estopped to file the suit by his words and conduct? OPD (3) Whether the suit is based on mala fide and the defendant is entitled to special costs u/S. 35-A, CPC? OPD (4)
Whether the sale price of the suit land was fixed at Rs. 1,20,000/- in good faith and actually paid?
OPD (5) If Issue No. 4 is n6t proved then what was the market value of the suit land at the time of sale? OP Parties.
(6) Whether the plaintiff has fulfilled the requirements of Talabs in accordance with law? OPP (7)
Whether the plaintiff has superior right of pre- emption qua the defendant? OPP (8) Whether the plaintiff is entitled to decree fo: possession through pre-emption as prayed for? OPP (9) Relief.
The Trial Court recorded the evidence of the parties and after giving them an opportunity of hearing came to the conclusion that the suit of the present Petitioner/plaintiff was liable to dismissal and dismissed it accordingly vide judgment and decree dated 13.7.2001. The petitioner being aggrieved of the judgment, and decree dated 13.7.2001 preferred an appeal, which was also dismissed by the first Appellate Court vide judgment and decree dated 6.3.2002. The petitioner now feeling himself aggrieved has filed the present revision petition.
3. The main submission of the learned counsel for the petitioner is that both the Courts below have misread the evidence with regard to the question of Talb-e-Muwathibat by giving undue consideration to die statement of Haq Nawaz PW,3 in cross-examination that on coming to know of sale from Haq Nawaz, Ali Muhammad, the plaintiff/petitioner had gone into his house for the purpose of making arrangement for serving of refreshment i.e. Tea to them and then after having served them with Tea Ali Muhammad made his Talb-e- Muwathibat.
4. After having heard the learned counsel for the petitioner, I feel it necessary to reproduce the relevant portion of the statement of Haq Nawaz, PW.3, made in cross- examinadon. The same reads as under:-- "............................................................ -\ The petitioner also in his cross-examination stated as under:- [1] {{PART MISS}} 5. Now we see that whether, in the presence of above statements of the petitioner as well as Haq Nawaz PW, Talb-e- Muwathibat made by the petitioner was in accordance with the provisions of Section 13(1) of Punjab Pre-emption Act, 1991, which for convenience purpose is reproduced below:- "13. 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 order, namely:-
(a) " Talb-e-Muwathibat.
(b) 'Talb-e-Ishhad') and (c) ' Talb-e-Khusumat'.
EXPLANATION (1) ' Talb-e-Muwathibat' means immediate demand by a Pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of die 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-e-Ishhad? Mean demand by establishing evidence.
(1H) * Talb-e-khusumat' means demand by filing a suit.
(2) ................. (3) ................
(4) ............
6. The word immediate' used in the explanadon of Talb-e-Muwathibat has great significance, therefore, it is advantageous to re-produce the its meaning as given in different dictionaries:-Black's Law Dictionary (Fifth Edition)
"Immediate" present: at once, without delay, not deferred bv any interval of time, in this sense, the word, without any very precise signification, denotes that action is or must be taken, either instantly or without any considerable loss of time. A reasonable' time in view of a particular facts and circumstances of case under consideration." Chamber 21 st Century Dictionary: "Immediate" Nearest or next in space; havine a direct effect and without anything coming in- between.Concise Oxford Dictionary (Ninth Edition): "Immediate" occurring or done at once or without delay; Nearest or next in space; (an immediate!
Reply) nearest, next; not separated bv either.
7. Now we see the Talb-e-Muwathibat in the light of view of Sexena, a well-known author of .Muhammadan Law and the law down by the Courts.
(I) Sexena in his . Book known Muslim Law, 1954 edition at page 689 while discussing about the promptness of Talb-e-Muwathibat observed as under:- "Under the Muslim System it is necessary that a preemptor should make demands known as Talabs. For performing the first Talab called Talb-e-Muwathibat it is necessary that the Shafi or pre-emptor must declare his intention to assert his right as pre-emptor immediately on receiving Information of the sale, it is not necessary that he must do so in the presence of any witnesses, nor it is necessary that he must make any offer or tender the price at that stage.. " (ii) in the case of Monajal Huq v. Shafiullah (PLD 1964 Dacca 640) His Lordship Idris, ). While dealing with the Talb- e- Muwathibat held" as under;- "7. A person entitled to. Pre-emption must make the immediate claim to the right of pre-emption called Talb-e-Muwathibat as soon as the fact of sale is known to him. The right is lost if there be any delay in claiming it." (Iii) in the case of Smt. Sundri Bai v. Ghulam Hussan ((1982 CLC 2441) may Lord Mr. Justice Saeeduzzaman Siddiqui made this subject more clear in the following words:- " Talb-e-Muwathibat" is defined as the immediate claim. The ' Shafee' must make this claim the moment he leams of die sale of the property and any delay in asserting this claim will invalidate the right of Shafa' for the right of 'Shafa' is but of feeble nature. The Prophet (peace be upon him) has said "the right of Shafa is established in him who prefers his claim without delay (see Hedaya by Hamilton at page 550). The respondent has not explained the delay of about 1-2/2 hour in making the Talb-e-Muwasibat. It has come in the evidence that the appellant was residing on the 1st floor while the respondent was on the ground floor of the same building, in these circumstances the delay of 1-1/2 hours in making the first demand (Talb-e- Muwasibat) was fatal. To the claim of '
Shafa' asserted by the respondent).".
(iv) In the case of Budho through Legal Representatives v. Karim Bux and 5 others (1985 CLC 1037)
Honorables Ibadat Yar Khan, J. (as he then was) while discussing the importance of Talb-e- Muwathibat observed as under:- "It may be stated that Talb-e-Muwathibat or the "jumping demand" must be made as soon as the pre-emptor is informed of the fact that the property in which he is claiming the right of pre- emption has been sold away. This demand cannot be delayed for a single moment. Delay of even minutes or seconds would defeat the right".
2. It is dear from the above that it is incumbent upon a pre-emptor to make Talb-e-Muwathibat at once without loosing any moment on coming to know of the sale in which he is interested to exercise his right of pre-emption. It is crystal clear from the statements of the plaintiff/petitioner as well as Haq Nawaz PW.3 that the petitioner has failed to make Talb-e-Muwathibat (jumping demand) immediately/instantly and not deferred by any interval of time7 on coming to know about the sale, as required under Section 13 of the Punjab Pre-emption Act, 1991. As he has failed to make Talb-e- Muwathibat in accordance with Section 13 of Act, 1991, therefore, he is not entitled to pre-empt the sale and the Courts below have rightly dismissed his suit and appeal. There is no illegality or material irregularity established on record. The present revision petition is without any substance or force, as such the same is dismissed in limine.