' The petitioners through this revision petition have assailed the judgment and decree of the First Appellate Court dated 15-10-1998 by virtue of which the judgment and decree passed by the learned trial Court on 12-6-1995 in their predecessor's favour in a suit for possession through pre- emption brought by him was set aside and resultantly his suit as above stated was dismissed.
2. The facts on the basis of which Muhammad Baig, the predecessor-in-interest of the present petitioners, filed a suit for possession through pre-emption of the property detailed in para. No,1 of the plaint alleged to have been sold by one. Muhammad Ashraf in favour of the respondents/defendants for a consideration of Rs,1,30,000 but price ostensibly was fixed as Rs,200,000 to defeat the pre-emptive right of the petitioner/plaintiff. The above transaction of sale allegedly took place through a registered sale-deed executed on 5-3-1989. The plaintiff in the civil suit claimed his superior right of pre-emption as being co-sharer and alleged that the sale came to his knowledge in the month of December, 1989 and he in presence of Muhammad Baig son of Wali Muhammad and Muhammad Ishaque son of Ghulam Muhammad made his Talb-i- Muwathibat and then on 4-1-1990 in presence of Aswar Shah, Walayat Shah and Manzoor etc. He made Talb-i-Ishhad. It was further alleged that the defendants on making of his Talb-i-Ishhad sought for sometime to consider his request wherein ultimately they decided to transfer this property in favour of the plaintiff on payment of Rs,2,18,700 and in consequence of this agreement the plaintiff went to the office of the Tehsildar for the purpose of the completion of the transaction but the defendants did not come there, as such the transaction could not be completed.
Resultantly, the plaintiff had to file the abovesaid suit for possession through Pre-emption. The defendants contested the suit on various grounds including the ground of abatement of the suit in view of the provisions of section 35 of the Pre-emption Act, 1991 and that the conditions of Talbs were not fulfilled. The learned trial Court on the pleadings of the parties, framed the following issues:--
(1) Whethei the pre-emption law has been abated, if so, what effect? OPD.
(2) Whether the suit is barred by limitation? OPD.
(3) Whether the plaintiff is estopped in his words and conduct to file the instant suit? OPD.
(4) Whether the plaintiff has fulfilled the requirements of Talb, if so, what effect? OPD.
(5) Whether the plaintiff has not deposited the Zar-i-Soaim in the Court, if so, what effect? OPD.
(6) Whether the plaintiff has not come to this Court with clean hands? OPD.
(7) Whether the ostensible sale price of Rs,2,18,700 was in good faith or was actually paid? OPD.
(8) If the above issue is not proved then what was the market value of the suit-land at the time of sale? OPD.
(9) Whether the plaintiff has got a superior right of pre-emption against the vendees/defendants?
OPP.
(10) Relief.
' The trial Court after recording the evidence of the parties decreed the suit in favour of the plaintiff on 12-6-1995. The defendants filed an appeal before the First Appellate Court from where their appeal was allowed and the judgment and decree of the trial Court was set aside and resultantly the suit of the plaintiff before the trial Court was dismissed. The petitioners (successors-in-interest of the original plaintiff) have filed the present revision petition being aggrieved of the judgment and decree of the First Appellate Court.
3. Learned counsel for both the parties have been heard and the record available has been perused with their assistance.
' The main submission of the learned counsel for the petitioners is that in view of the provisions of section 35 of the Punjab Pre-emption Act, 1991 having come into force when his suit for possession through pre-emption was pending adjudication, it was required from them to have made Talb-i- Ishhad and other Talb was necessary to be performed by them. It is also submitted that the First Appellate Court has misread the evidence on record and ignored the superior right of pre-emption and also the fact of offer by the defendants to transfer this property in favour of the predecessor- in-interest of the present petitioners to which offer they at a later stage did not comply with.
4. On the other hand, learned counsel for the respondents has submitted that not only the question of performance of Talb-i-Ishhad was mandatory but also the question of Zaroorat and avoidance of Zarar was also to be alleged and proved by the predecessor-in-interest, of the present petitioners as laid down in section 6(2) of the Punjab Preemption Act, 1991, which has not been done in this case.
5. According to facts on record the civil suit was instituted in 'the month of February, 1990. In view of the provisions of section 35 of the Punjab Pre-emption Act, 1991 it is incumbent upon the pre- emptor to prove Talb-i-Ishhad. In the present case making of Talb-i-Ishhad is not proved on record. The predecessor-in-interest of the petitioners, i,e, the plaintiff before the trial Court did not appear in the witness-box to state this fact of making of Talb-i-Ishhad. Although the son of the plaintiff holding his power of attorney appeared in the witness-box but nothing is on record that his attorney was present at the time when the plaintiff made his Talb-i-Ishhad. It is the personal knowledge of the plaintiff to have made Talb-i-Ishhad, which he should have corroborated by making his appearance as a witness in the Court. The plaintiff did not do so, as such making of Talb-i-Ishhad is not proved on record. At the time of the commencement of the Punjab Pre- emption Act, 1991 coupled with the provisions of section 35 of the Act (ibid), the provisions of section 6(2) i,e, mentioning of Zaroorat and avoidance of Zarar with regard to the pre-empted suit property was also in force and the plaintiff was required to prove Zaroorat and avoidance of Zarar.
In this behalf, I am guided by the law laid down in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1) and Falak Sher v.
Muhammad Mumtaz and 2 others (KLR 1993 Revenue Cases 62).
6. In view of the provisions of section 6(2) of Punjab Pre-emption Act, 1991 were declared un-Islamic on 31-12-1993 and prior to that it remained in force. In a suit for possession through pre-emption the preemptor is to prove his right of pre-emption not only at the time of sale, at the time of institution of suit and also at the time of decision of the suit. In the present case the provisions of section 6(2) of Punjab Preemption Act, 1991 were in force and were not complied with.
7. Apart from it I am being guided by the judgment in the cases of Fazal Elahi v. District Judge, Attock (1993 CLC 85) and Muhammad Saif v. Mirza Mushtaq (1994 MLD 308) that apart from complying with the provisions of section 35 with regard to making of Talb-i-Ishhad, it is also mandatory to have complied with the completion of Zaroorat and avoidance of Zarar but in the present case this aspect is lacking.
8. In view of the above discussion, neither there is any misreading or non-reading of evidence nor any illegality or material irregularity is established in the judgment of the First Appellate Court and the judgment of the learned trial Court was neither legal nor based on cogent evidence, as such not sustainable in law. The judgment of the First Appellate Court in the light of above is legal and is to be maintained. Hence the present revision petition is without any substance or force and is dismissed with no order as to cots.