P L D 1969 Dacca 64 (PLP)

Defendants' case, however, is that the plaintiffs knew about the sale when a deed of sale was registered on 13‑9‑

61. It is further asserted that there was neither a first demand, nor a second demand, as alleged in the plaint. It is further claimed that the defendant is not a stranger and he has his house in the neighbourhood and the land is in the possession of the defendant with effect from 14‑9‑61, on which date certain trees were cut and removed by him. On a consideration of the evidence led in the case the trial Court held that talab‑i‑mowasibat was followed by talab‑i‑ishhad and that an amount of Rs. 1,000 was tendered as the price of the land. The suit was accordingly decreed. On appeal, the learned Additional District Judge affirmed the judgment and decree of the trial Court. Mr. B. N. Chowdhury assisted by Mr. P. K. Guha appears on behalf of the appellant. Mr. M. A. Mottalib appears for the respondents. Mr. Chowdhury's contention is that there is neither evidence, nor any finding to the effect that while making talab‑i‑ishhad, reference was made to talab‑i‑mowasibat, and the absence of evidence is fatal to the plaintiffs' case for pre‑emption. Mr. Mottalib, learned counsel for the respondents who has presented his clients case with fairness submits that while making the talab‑i‑ishhad express reference to talab‑i‑mowasibat was not made. The contention of learned counsel, however is that talab‑i‑mowasibat was, in fact, made and the witnesses have deposed to that effect. Mr. Chowdhury has placed the judgments of the Courts below. It is found that no reference has been made to this requirement. Requirement of making reference to talab‑i mowasibat while making a talab‑i‑ishhad is set out in Mulla Principles of Mahomedan Law at page 221 in the following terms: - "Demands for pre‑emption‑No person is entitled to the right of pre‑emption unless‑ (1) he has declared his intention to assert the right imme diately 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 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). It will, therefore, be seen that after having made talab‑i‑mowasibat, the pre‑emptor has to affirm his intention with the least practic able delay referring expressly to the fact that talab‑i‑mowasibat had been made. It, therefore, requires the pre‑emptor to make an express reference to talab‑i‑mowasibat. In this case there is no finding, nor any evidence has been pointed out to me that a reference was made to talab‑i‑mowasibat while making talab‑i -ishhad. This omission at the time of making the talab‑i‑ishhad is indeed fatal to the claim of pre‑emption. The view expressed above, finds support on a decision of the Calcutta High Court in the case of Rujjub Ali Chopedar v. Chundi Churn Bhadra and others (I L R 17 Cal. 543). In that case a full Bench of the Calcutta High Court consisting of Petheram C. J. Princep. Pigot, O'Kinealy and Ghose, JJ. held that it was necessary that when performing the talab‑i‑ishhad the pre‑emptor should declare that he had made the talab‑i‑mowasibat. To the same effect is the decision in the cane of Mubarak Husain v. Kaniz Bano and others (I L R 27 All. 160). In that case a Division Bench of the Allahabad High court, consisting of Stanley C. J., and Surkitt, J. held that express reference to talab‑i‑mowasibat is necessary when second demand, namely, talab‑i‑ishhad is made. This question also came for consideration in the case of Sadiq Ali v. Abdul Baqi Khan and another (I L R 45 All. 290). The view expressed was that if the pre‑emptor in making the second demand failed to call the attention of the witnesses to the fact that he had already made the first demand, the second demand was not valid. A Division of this Court consisting of Amin Ahmed and Chowdhury, JJ, as their Lordships then were, held in the case of Nazir Ahmed and others v. Mohammad Sheir Ali and another (P L R 5 Dacca 757) that inasmuch as at the time of making the second demand, that is talab‑i‑ishhad before witnesses, no reference was made that the pre‑emptor had already made the and demand of talab‑i‑mowasibat, the second demand was not made in accordance with law, and the pre‑emptors omission to make such reference was fatal to his claim. In the present case the plaintiffs have neither claimed nor adduced evidence to the effect that at the time of making the second demand a reference was made to the first demand. That being so, I am of opinion that the plaintiffs are not entitled to claim pre‑emption and the learned Courts below erred in law in not directing their attention to this question. In the result, the appeal is allowed, the judgments and decrees of the Courts below are set aside and the suit is dismissed. In the facts and circumstances of the case and in view of the fair presentation of the case on behalf of the respondents I make no order as to costs. A. E. Appeal allowed.