1991 PLP 1015 (MLD)

Mian M. Younis Shah for Petitioners. Shah Wazir Muhammad for Respondents. Date of hearing: 16th January, 1991. By a deed 'dated 4-2-1986, Muhammad Ayaz Khan and Haroon Khan defendants-vendors sold 10 kanals of the disputed land to Muhammad Zarif Khan defendant-vendee No.1. The grievance of the petitioners is that they had already sold their share of land measuring 41 Kanals 12 Marlas and 3 Sarsahis and were thus left with no more land to transfer it to the defendant-vendee No.1. They have, apart from seeking a declaration of their title to and confirmation of their possession over 19 Kanals 12 Marlas of the disputed land, challenged the propriety and legality of the sale-deed dated 4-2-1986 on the grounds of its being fraudulent and deceitful to the extent of 10 Kanals of land in dispute. The alternative relief claimed is of possession by pre-emption of 10 Kanals of land on payment of Rs.1,000 at which the pre-emptors-petitioners valued its price.

2. On 17-9-1988 Muhammad Zarif Khan vendee-respondent moved an application for dismissal of the suit. The gravamen of the vendee-respondent was that the pre-emptors having made no `Talabs' as envisaged by law stood. non-suited on this score alone. The learned trial Judge placed reliance on Government of N.-W.F.P. v. Malik Said Kamal and others P L D 1986 S C 360 and Sardar Ali v. Muhammad Ali and others P L D 1988 SC 287 and dismissed the pre-emptors-petitioners' alternative relief for possession by pre-emption and ordered the remaining suit to proceed. The appeal against this order was also dismissed by a learned Additional District Judge, Charsadda, obliging the pre-emptors-petitioners to come to this Court in the civil revision petition.

3. Mian Younas Shah, learned counsel for the petitioners contended that notwithstanding the dictum of the Supreme Court that a pre-emptor having failed to make statutory talabs' stood non-suited, the learned trial Judge ought to have decided the case after giving his Findings on all the issues joined by the parties including that of declaratory relief claimed by the petitioners.

4. There is no cavil with the broad proposition canvassed at the Bar by Mian Mohammad Younas Shah. Order XIV, Rule 2, C.P.C. is quite clear, namely, that where issues both of law and fact arise and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first and postpone the settlement of issues of fact until after the issues of law have been framed. Order XIV, C.P.C. gives no power to Court to frame a preliminary issue of fact, but where, however, the Judge has framed all the issues which properly arise in a case, he may select one or more of those issues to be tried first and independently, where the evidence on such issue or issues can be conveniently separated from the rest of the evidence and the finding on that issue or those issues may render the trial of other issues unnecessary.

5. There is thus every force in the contention of the learned counsel for the petitioners, because in this case the finding on the issues of superiority of pre-emptive rights does not at all render the trial of the other issues unnecessary. It would, therefore, have been proper and legal for the trial Judge to have not disposed of the issue of pre-emption at the instance of the respondent. Frankly speaking by virtue of impugned order the suit had not been finally disposed of. Nevertheless, since the petitioners are not shown to have suffered any injustice from proceeding with suit piecemeal and the objection is mere of a technicality rather than of any substance, I am not inclined to interfere with the impugned order.

6. The law on the subject of `Talabs' is by now finally settled. In Suo Motu Review Petition titled Malik Said Kamal v. Government of N.-W.F.P. PLD 1990 S C 865 which had been re-affirmed in C.Ps. Nos.6-R and 7-R of 1990 titled Soyed Ghalib Intisar Gillani v. Zahoor-ud-Din and others it has been held "that `Talabs' are conditions precedent for enforcement of pre-emption. Admittedly no `talabs' had been made in the present case. No decree had been passed before 31-7-1986, therefore, no decree could be passed on the basis of the claim made by the respondent." The finding of the two Courts below on the relief of pre-emption, therefore, is unexceptionable.

7. Without approving the procedural aspect of the case, this petition in revision is, however, dismissed with no order as to cost. The file should be sent back to the trial Judge expeditiously. AA./1169/P. Revision dismissed.