1997 PLP 1017 (MLD)

(i) Whether the plaintiff has got right of pre‑emption over the suit land? (ii) Whether the plaintiff made the requisite demands in exercise of his right of pre‑emption? If so, what is the effect? (iii) Whether the defendants are Mourosi Haris of the suit land and they have got first preferential pre‑emption right? (iv) Whether the suit is maintainable? (v) What should the decree be? The parties led their evidence. All the issues were decided against the plaintiff/respondent and the suit was dismissed. However, Civil Appeal No.86/1986 preferred by him was allowed and the said suit was decreed. I have heard Mr. Ghulam Rasool Qureshi, learned counsel for the applicant and Mr. Ejaz Ali Hakro, learned counsel for the respondent and have perused the record. Learned counsel for the applicant referred to section 236 of Muhammadan Law by (D.F. Mulla) and submitted at the outset that if any of the ingredients of the right of pre‑emption is not pleaded in plaint the suit would fail. It would be relevant to reproduce the aforesaid provisions as under: "

236. Demands for pre‑emption.‑‑ No person is entitled to the right of pre‑emption unless‑‑ (1) he has delcared his intention to assert the right immediately on receiving information of the sale. This formality is called Talab‑i- Mowasibat (literally, demand of jumping, that is immediate demand); and unless (2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the Talab‑i‑Mowasibat had already been made, and has made a formal demand‑‑ (a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale, and (b) in the presence at least of two witnesses. This formality is called Talab -i‑Ishhad (demand with invocation of witnesses)." According to the learned counsel for the plaintiff had nowhere pleaded in the plaint that he made the demands in the presence of two witnesses and, therefore, the suit is not competent and liable to be dismissed on this sole ground. In support of his submissions he cited Mumtaz Hussain and another v. Muhammad Achar and 2 others 1991 CLC 209 (216h) and Jadal v. Abdul Majeed and 2 others PLD 1978 Karachi

732. He further contended that the plaintiff tried to fill in the lacuna by examining two witnesses. He elaborated that the fact that the demands were made in presence of two witnesses was not peladed in the plaint and hence no evidence could have been led under the law to prove that fact. He relied on the legal proposition that the facts not pleaded cannot be permitted to be proved at trial by means of evidence and Courts are not to consider the evidence upon plea not raised in pleadings. Learned counsel for the respondent in reply submitted that the lower Appellate Courts has properly appreciated the evidence in the light of the facts pleaded in the plaint and documentary evidence brought on the record. He submitted that this objection was neither raised in pleading nor agitated before the lower Court and thus it cannot be raised for the first time in revision before the High Court. There is no denying the fact that a plea of law can be raised at any stage. A person is required to state in his pleadings all the material facts on which he relies for his claim or defence. The material facts would imply such facts as the plaintiff as to prove to establish the cause of action. In the instant case a bare reading of the plaint would demonstrate that the respondent/plaintiff while stating that the Talabs were made did not mention in the plaint that those Talabs were also made in the presence of two witnesses. The effect of such omission on the maintainability of the suit is a pure question of law and can be raised in the present proceedings. In order to establish a right of pre‑emption it is not only necessary that p there should be Talab‑i‑Mowasibat and Talab‑i‑Ishhad but also that the Talabs should be made in presence of at least two witnesses. As such making of Talabs before the witnesses is a necessary ingredient, for their validity. Right of pre emption cannot be said to have been pleaded according to the law unless all those facts which constitute such a right are mentioned in the plaint, The actual name of witnesses may not be given but the facts that the demands were made in presence of witnesses should be stated in the plaint so that necessary evidence may be led to prove this fact. Admittedly since this was not done, therefore, this omission is fatal to the claim of the plaintiff. Pre‑emption needs strict proof and in this connection it will be relevant to refer to what the Honourable Supreme Court observed reported in Lal Khan v. Ghulam Muhammad 1973 SCMR 252 is as under: "The right of pre‑emption being in the nature of a piratical right the Courts have always learned against it and while allowing such a right have always insisted upon a strict compliance of the law applicable to pre‑emption." The plaintiff/respondent, however, produced two witnesses before the trial Court who have supported his case. But there is no escape from the well‑established legal position that when the pleadings omitted material facts a party will not be permitted to lead evidence regarding such facts. As such the statements of the witnesses do not merit any consideration. In view of what has been stated above this revision application is allowed and the judgment dated 24‑4‑1990 is set aside and the suit is dismissed. A.A./R.305‑K Revision application dismissed.