2007S1037 (PLP)

ABDUL HAMEED DOGAR, J.

This appeal with leave of the Court is directed against the judgment dated 29-2-2000 passed by learned Judge in Chambers of the Lahore High Court, Lahore, whereby R.F.A. No.114 of 1998 filed by appellant was dismissed.

2. Briefly, stated, facts giving rise to the filing of instant appeal are that on 10-2-1990 appellant filed a suit for pre-emption on the grounds of being Shafi-i-Sharik, Shaki-Khalit and Shafi-i-Jar regarding land measuring 41 Kanals, 2 Marlas situated in Chak No.260/RB and the land measuring 43 Kanals, 15 Marlas situated in Chak No.262/RB (both Chak in Tehsil and District Faisalabad) sold by his brother Din Muhammad to respondent Muhammad Bashir against a consideration of Rs.2,50,

000. The respondent in order to defeat the right of pre-emption shown it as an exchange. Appellant went to respondents and his brother Din Muhammad without loss of time and declared his intention to purchase the property and made jumping demand i.e. Talb-i-Muwathibat but respondent declined. Whereafter appellant took P.Ws. Taj Din and Muhammad Sharif and approached respondent again and asked him that he had earlier declared his intention to assert his right of pre-emption and made Talb-i-Mowasibat and now he affirms earlier intention and makes Talb-i Ishhad in presence of above mentioned witnesses and offered sale price but he refused to do so. Respondent in his written statement raised preliminary objection and while controverting the assertions of the appellant stated that he obtained the suit property in exchange as such is not pre-emptible. The trial Court framed as many as 7 issues and after recording evidence dismissed the suit with cost vide judgment, dated 11-3-1998. Feeling aggrieved, appellant preferred R.F.A. before the learned High Court which was dismissed vide impugned judgment.

3. Leave to appeal was granted 'by this Court on 27-7-2001 to consider as under:-- (a) That in such suits, there was no requirement of proving Talb-i -Muwathibat; (b) That Talb-i-Ishhad in the presence of two witnesses only was required to be proved and in such a case the requirements of making the sane through notice attested by two witnesses had been dispensed with and the petitioner led evidence in this case to prove Talb-i-Ishhad in the presence of two witnesses which has been ignored on the erroneous assumption of law that Talb-i- Muwathibat and Talb-i-Ishhad were required to be proved and the latter too through registered notice attested by two truthful witnesses.

4. We have heard Mr. Muhammad Hussain Awan, learned Advocate Supreme Court for the appellant and Ch. Riasat Ali, learned Advocate Supreme Court for respondent and have gone through the record and proceedings of the case in minute particulars.

5. Learned counsel for the appellant contended that appellant has performed the requisite Talbs as required by law. He contended that after the judgment delivered by this Court in the case of Government of N.-W.F.P. through Secretary, Law Department. Malik Said Kamal Shah PLD 1986 SC 360 whereby the Punjab Pre-emption Act, 1913 was declared against the Injunctions of Holy Qur'an and Sunnah and before the enforcement of Punjab Pre-emption Act, 1991, the Islamic Law of Pre-emption was to hold the field and it cannot be said that during that period no law of pre-emption was in the field. According to him, the plaintiff has, fulfilled all the required Talbs in accordance with the Islamic Law of Pre-emption. He contended that appellant on coming to know about the sale, declared his intention to exercise his right of pre emption, therefore; he along with the two witnesses, namely, Taj Din and Muhammad Sharif approached the respondent and demanded from him to receive the sale price amounting to Rs.2,50,000 and transfer the suit property to him.

6. On the other hand, learned counsel for the respondent controverted the above contentions and supported the impugned judgment which according to him does not suffer from any legal flaw. .He contended that appellant has not examined Taj Din in whose presence he allegedly fulfilled the requirement of Talb-i-Ishhad as such he has failed to fulfil the requirements of Talbs. He vehemently urged that the requirement of Talb-i-Muwathibat cannot be fulfilled unless the details particulars, date, time and place are specifically indicated in the plaint and the names of persons in whose presence such Talb was made. He further contended that the case of the appellant would fall within the ambit of Mohamedan. Law according to which right of pre-eruption was to be claimed by making immediate/jumping demand on receiving the knowledge of the sale which was called as Talb-i-Muwathibat in the presence of buyer or seller or on the premises subject of sale. As regard Talb-i-Ishhad it is to be made in presence of at least two witnesses wherein it is expressly mad clear that the pre-emptor had the intention to purchase the proprty under sale. He went on to argue that witnesses, namely, Ali Muhammad appellant and (P.W.2) Muhammad Sharif, even did not disclose in their respective statements in evidence the time and the date of sale, therefore, the Talb-i-Ishhad cannot be said to have been made in accordance with law. Even notice of Talb-i-Ishhad did not bear the time and date of re-confirmation of Talb-i-Muwathibat while making Talb-i-Ishhad.

7. Admittedly the suit was filed on 10-2-1990 whereas Punjab Pre emption Act, 1991 was promulgated on 6-4-1991. This Court in the case of Malik Said Kamal Shah referred (supra) declared Punjab Pre-emption Act, 1991 against the Injunctions of Holy Qur'an and Sunnah as such the instant case would be covered under the provisions of Mohamedan Law. It would be appropriate firstly to reproduce hereinbelow its section 225:-- Demands of pre-emption.

No person is entitled to the right of pre-emption unless-- (1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called Talb-i- Muwathibat (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 Talb-i-Muwathibat 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 Talb-i-Ishhad (demand) with invocation of witnesses).

8. On bare perusal of above, the performance of above mentioned Talbs is mandatory and non-performance of any of them would result in dismissal of suit. In this case, out of two witnesses of Talb-i-Ishhad, only one witness is examined which stands established that the said Talbs have not been performed in accordance with law. In this case even neither time nor particulars such as date, and place have been specifically mentioned by the plaintiff in the plaint claiming right of pre-emption on the basis of being co-sharer in the property. A larger Bench of this Court in the case of Mian Pir Muhammad v. Faqir Muhammad (deceased) through L.Rs. and others C.A. No.1951 of 2000 decided on 12-12-2006 held that a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of section 13 of the Act are not provided it would be fatal to the pre emption suit.

9. The learned High Court while dismissing R.F.A. No.114 of 1998 has taken into consideration the provisions of section 13(3) of the Act but has not dilated upon the factum as to whether the Act was applicable at the time of making Talbs about pre-empting the suit-land. In fact as stated above, it was the principle of Mohamedan Law used to govern the law of pre-emption at the relevant time.

10. For what has been discussed above, we are of the opinion that the appeal being devoid of force is dismissed with no order as to costs. M.H./A-39/SC Appeal dismissed.