1995 PLP 1209 (CLC)

Date of hearing: 2nd October, 1994. Ali Ahmad petitioner before this Court filed a suit to pre‑empt of agricultural land measuring 17 Kanals 19 Marlas situate in the revenue estate of village Beerh, Tehsil Daska, District Sialkot, in favour of the respondent vide registered sale deed dated 31‑5‑1986, on the basis of his qualification of being co‑sharer in the Khata. The plaint was rejected by the learned trial Court vide order dated 3‑10‑1988 on the ground that "Talb‑i‑Muwathibat" and "Talb‑i‑Ishhad" having not been alleged in the plaint, it does not disclose any actionable cause of action. Application seeking amendment in the plaint so as to add making of aforementioned Talabs in the plaint was also dismissed. This judgment and decree and the order was challenged in appeal before District Court, Sialkot, which has been dismissed by the learned District Judge, Sialkot vide judgment and decree dated 23‑4‑1989, hence this civil revision.

2. Ch. Khan Muhammad Bajwa, Advocate, learned counsel for the petitioner has contended that making of allegations of "Talabs" in the plaint was not necessary and it is during the course of trial of the suit that factum of making of Talabs is to be proved by leading of evidence and that too in those cases where the defendant denies that the Talabs were not made by the plaintiff. In support of his contention, he has placed reliance on case of Mehdi Hassan. v. Ghulam Muhammad, etc. (PLD 1964 Lahore 648) and certain paragraphs from report of Islami Nizam‑e‑Adal by Islamic Ideology Council, Islamabad, regarding mode of making of "Talb‑e‑Muwathibat" and "Talb‑e Ishhad", therefore, he contends that plaint could not have been rejected and as such the impugned judgments and decree are illegal.

3. As against the above arguments, Mr. Maqsood Hassan, Advocate, learned counsel for the respondents has placed reliance on the following cases:‑‑ (1) Government of N:‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), (2) Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287), (3) Ghulam Hussain and others v. Mushtaq Ahmad and others (PLD 11994 SC 870). and has argued that without alleging and proving the making of Talbs in accord with the Injunctions of Islam, a pre‑emptor cannot acquire an actionable superior right of pre‑emption as in the case in hand it is admittedly not alleged in the plaint that "Talb‑i‑Muwathibat" and "Talb‑i‑Ishhad" were made by the plaintiff before filing of the suit, the plaint has rightly been rejected by .the learned trial Court which order has been rightly upheld by the learned lower Appellate Court.

4. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record. It is well established a legal proposition that without making of "Talb‑i‑Muwathibat" and "Talb‑i‑Ishhad", a pre‑emptor does not acquire an actionable superior right of pre‑emption. It is also an established legal proposition that question of fact is to be alleged in the pleadings so that it could be proved by evidence. Making of Talabs in accord with the Injunctions of Islam unless alleged in the plaint cannot be allowed to be proved by evidence. A litigant cannot be allowed to adduce evidence beyond his pleadings. The case‑law referred to by the learned counsel for the petitioner is distinguishable on facts and the law declared therein and is not, attracted in the facts of the case in hand. Reference to certain paragraphs in the report of Islamic Ideology Council is also inapt as the same does not relate to the question involved in this case. In the said paragraphs mode of making of Talabs is described, therefore it cannot be argued on the basis thereof, that even without specifically alleging in the plaint that the plaintiff had made Talabs in accord with the Injunctions of Islam before filing of the suit, the suit can proceed. This case is fully covered by law declared in case of Mst: Majeedan and others v. Inam Ullah and others (1994 SCMR 1735) wherein at page 1736 therefore their Lordships of the Supreme Court of Pakistan have observed and held as under: "(3) The suit of the petitioners was dismissed on the principle laid down in Said Kamal Shah's case (PLD 1986 SC 360). The learned High Court also took notice of the judgment of this Court reported as Government of N.‑W.F.P. v. Malik Said Kamal Shah (PLD 1990 SC 865). (4) Learned counsel for the petitioners submitted that the petitioners have a superior right of pre‑emption, therefore, their suit could not be dismissed. The learned counsel has relied upon Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129). Now, the final judgment on the subject has been passed by this court in Rozi Khan v. Karim Shah (1992 SCMR 445) which has specifically stated that "Only those suits which were pending before the commencement of the Act 1987 will not abate where the right of pre‑emption is claimed by such pre emptors in whom the right of pre‑emption vests under section 6 of the said Act and they have made a demand of pre‑emption (Talab) as required under the provisions of section 13 thereof." Section 13 of the Act clearly provides that "the right of pre‑emption of a person shall be extinguished unless such person makes demands, for pre‑emption". The learned counsel admits that no Talabs had been made by the pre‑emptor in the present matter. However, he submitted that no issue was framed, therefore, the petitioners could not prove that the requisite Talabs had been made. Talabs are conditions precedent for institution of a suit. The plaint does not specifically state that any Talab had been made, and (5) All three Courts have taken a correct and legal view. This petition has no force. The same accordingly is dismissed and leave to appeal is refused." Consequently as the plaint did not disclose an actionable cause of action it has rightly been rejected by the learned trial Court which order has been lawfully upheld in appeal. Both the judgments and decree as such being in accord with law declared in cases of Malik Said Kamal Shah, Sardar Ali, Ghulam Hussain , and Mst. Majeedan and others (referred to above), are unexceptionable. The application seeking amendment of the plaint has also rightly been dismissed in view of the law declared in case of. Ghulam Qadir v. Nawab Din (PLD 1988 SC 701) wherein it has been held that in old pre‑emption suits filed under the Punjab Pre‑emption Act, 1913, a pre‑emptor cannot be allowed to add the plea of raising of Talabs, as grant of such permission would result in encouraging litigants to tell lies and hence take false pleas before a Court of law.

5. Resultantly, I see no force in this civil revision, hence the same is dismissed with no order as to costs. AA./A‑761/L Revision dismissed.