2000 PLP 1654 (CLC)

The applicant has impugned the judgment and decree, dated 31‑12‑1999 passed by learned IInd Additional District Judge, Nawabshah dismissing his appeal filed against the decree, dated 12th December, 1998 passed by the learned IInd Senior Civil Judge, Nawabshah whereby the suit of the applicant/plaintiff viz F.C. Suit No.50 of 1995 for pre‑emption was dismissed.

2. Learned counsel for the applicant submits that the trial Court in the above suit, had framed in all 10 issues out of which except issue No.5 were decided in his favour, however, the remaining issue No.5, which relates to the making of requisite demand was decided against him and while doing so, learned trial Court based its judgment entirely on the finding given on the said issue and dismissed his suit. His grievance is that learned trial Court has decided the said issue without appreciation of the material evidence available on record in its true spirit inasmuch as that the requisite jumping demand (Talab‑e‑Mowasbat) made duly by attorney of the applicant has been considered devoid of legal force. Similarly, learned counsel viewed that the Appellate Court has maintained the finding of trial Court without applying its mind judiciously thereby, committing :an illegality. Next he averred that the said attorney of the applicant made the requisite demand in exercise of his powers specifically vested in him as per general power of attorney produced in the evidence.

3. On examination of record, it, however, is vividly clear from the impugned judgment of trial Court that the said Court has given specific finding in the terms that the first demand has not been made immediately, but, after getting knowledge of the sale of the suit land, the attorney of the plaintiff first called the witnesses, went to their houses, consumed a lot of time there and thereafter, he made his first demand. Learned counsel has not denied these facts instead he argued that it was not so much delay to discard Talab‑e‑Mowasbat made in this manner. I am afraid, on this, I do not feel p, myself in agreement with learned counsel for the applicant. According to paragraph 236 of Islamic Law (Principles of Mohammadan Law by D.F. Mulla in Pakistan edition by Dr. M.A. Marian) reproduced below, entitlement to right of pre‑emption is only created when the pre‑emptor asserts the right immediately on receipt of the information of sale:‑‑ "

236. 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 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) Thus, the trial Court has correctly. held that by making the demand in aforesaid manner the applicant has lost the right of pre‑emption, so the learned Appellate Court has also rightly maintained this finding.

4. Besides, on scrutiny of contents of alleged general power of attorney it has been discovered by the trial Court that the attorney was not empowered to exercise the right of pre‑emption on behalf of the applicant. This finding on issue No.5 has also been maintained by the Appellate Court. I have myself gone through the above referred power of attorney with the assistance of learned counsel for the applicant who has placed a copy thereof on record and has also loudly read same in Court. Admittedly, this power, of attorney does not disclose anywhere that the attorney of the applicant was authorized to make requisite Talab oil behalf of the applicant. To substantiate his arguments learned counsel for the applicant has referred to Explanation No 11 to paragraph 236 of Islamic Law of same edition referred to above, that the attorney could make a demand to pre‑empt the property. It will be pertinent to reproduce the said explanation as it appears in the aforementioned book, as under: "Explanation II.‑‑‑ It is not necessary that the Talab‑i‑Mowasibat or Talab‑e‑Ishhad should be made by the pre‑emptor in person. It is sufficient if it is made by a manager or a person previously authorized by the pre‑emptor to make the demand. " From the aforementioned provision of law it is crystal clear that only a person previously authorized may make the demand but in the instant case as has been held by the two Courts below concurrently that the attorney of the plaintiff was not previously authorized by the applicant i.e. pre‑emptor enabling him to make the requisite demand.

5. I have already stated in the above lines that the attorney of the applicant was not authorized muchless previous to sale of the suit land or at least before making the requisite Talab. I, therefore, do not find any substance in the contentions of learned counsel for the applicant to interfere with the said finding and dismiss this Revision Application in limine alongwith the listed applications. H.B.T./M‑53/K Revision dismissed.