2015 PLP 1228 (MLD)

MRS. IRSHAD QAISER, J.

The petitioner, Saadullah Khan filed the present revision petition against the judgment and decree dated 13-3-2013 passed by learned Additional District Judge, Haripur whereby the appeal filed by the petitioner against the judgment and decree dated 14-7-2011 passed by trial Court, Haripur in Suit No.91/1 of 2010 was dismissed.

2. Shortly put the facts, necessary for the disposal of the instant civil revision are, that suit land measuring 8 Kanals 9 Marlas located in Khasra No.1927 in the area of Mauza Sarai Naimat Khan Tehsil and District Haripur was purchased by respondents/defendants on the basis of registered sale deed No.504 attesed on 24-3-2010 for sale consideration of Rs.300,000.

3. The petitioner/plaintiff instituted suit seeking possession on the basis of having superior right of pre-emption in respect of suit land. He claimed to have obtained the knowledge of the suit transaction on 21-5-2010 at 10-00 a.m. at his house through Ahmed Zaman son of Kala Khan and he immediately expressed his intention to purchase suit property and made Talb-e-Muwathibat followed by notice of Talb-e-Ishhad dated 26-5-2010. The suit was resisted on all grounds, legal as well as factual. Relevant issues were framed and after recording such evidence as the parties wished to adduce, learned Civil Judge-VIII, Haripur, seized of the matter, by her judgment and decree dated 14-7-2011 dismissed the suit, holding that the plaintiff has failed to prove Talb-e-Muwathibat in accordance with law. An appeal was preferred there against, which also met the same fate through impugned judgment and decree. Petitioner, feeling aggrieved, has filed the instant civil revision under section 115, C.P.C. assailing the concurrent judgment and decree of both the Courts below.

4. I have heard learned counsel for the parties and perused the available record with their assistance.

5. In order to appreciate the arguments of the learned counsel for the parties, I consider it appropriate to reproduce below Section 13 of the Pre-emption Act 1987 which reads as follows:--

13. Demand of Pre-emption.

(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order namely:-- (a) Talb-i-Muwathibat: (b) Talb-i-Ishhad; and (c) Talb-i-Khusumat. Explanation. I "Talb-i-Muwathibat" means immediate demand by a pre-emptor in sitting or meeting (Majlis) in which he had come to know of the sale declaring his intention to exercise the right of pre-emption. Explanation. II. "Talb-i-Ishhad" means demand by establishing evidence. Explanation. III. "Talb-i-Khusumat" means demand by filing a suit.

2. When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat. 3. [Subject to his ability to do so, where] a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section (34), or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.

6. The three demands asserting the right of pre-emption have their own respective connotations. The first demand, i.e. Talb-i-Muwathibat or what it literally means, the jumping is defined in the first explanation to Subsection (1) of Section 13 which envisage firstly the act of prospective pre-emption coming to know of the factum of a sale, secondly such knowledge/ information emanating from sitting or meeting i.e. Majlis and thirdly declaration of his intention to exercise the rights of pre-emption immediately on gaining the knowledge of the sale.

7. This is settled proposition of Islamic law in pre-emption cases and as repeatedly held by superior Courts that pre-emption right cannot be exercised unless and until the pre-emptor has performed the right of Talb-i-Muwathibat immediately after hearing the sale in the same majlis. The delay in performing the talb is fatal to that right. When this Talb-i-Muwathibat is not made instantly on coming to know of the sale, the right of pre-emption is lost. A short delay would not be excused. The pre-emptor is required to perform and fulfill its requirements meticulously and any failure in this behalf would deprive him of success in getting a pre-emption decree as held in 1997 MLD 2945 Peshawar, Guidance is also sought from Kitab-Al-Shufa of Fatawa-Alamgiri and, Fatawa-i-Kazee Khan wherein it is mentioned "By Talb-i-Muwathibat is meant that when a person entitled to pre-emption hears of sale, he must claim his right immediately at the very instant, and if he remains silent without claiming the right, it will be extinguished. This is the accepted view of our jurists. According to the saying of our Holy Prophet (PBUH) "the right of SHUFFA is established in him who prefers his claim without delay". Our superior Courts also give great importance of this Talbs. Reference is made to 2000 CLC 1127 Peshawar, 1996 CLC 902, 2000 CLC 1853 Peshawar and 2011 MLD 974 Peshawar, wherein it is held; "Talb-i-Muwathibat means immediate demand by a pre-emptor in the sitting or meeting (Majiis) in which he has came to know of the sale declaring his intention to exercise the right of pre-emption. The words "immediate demand" put limitation on the prospective pre-emptor that he must express his intention immediately". In case Naimat Ali v. Abdul Ghaffar (2000 CLC 1067) Lahore it is held "Talb-i-Muwathibat was to be made before disposal of Majlis in which the pre-emptor gained knowledge of sale. Guidance is also sought from PLD 2007 SC 302 wherein it is held "Talb-i-Muwathibat is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale".

8. Keeping in view the above principle in mind now it is to be seen whether petitioner has been able to prove that on receiving the information about sale of suit land from the informer Ahmed Zaman he immediately declared that he intended to pre-empt the sale in the same meeting/majlis or not. In Para No.2 of his plaint, the petitioner has contended that when he got the knowledge of the impugned sale on 21-5-2010 at 10-00 a.m. at his house through Ahmed Zaman he immediately pronounced Talb-i-Muwathibat. During trial he was examined as P.W.4. In his examination in chief he reiterated the same fact but in his cross-examination he admitted:-- He also admitted that he got fard pertaining to suit property prior to registry. Same facts had been admitted by P.W.4 informer Ahmed Zaman in a different way whereby he had admitted;

9. All the above facts revealed that the petitioner had not made immediate demand in the same meeting on the receipt of information. Thus both the Courts below have rightly held that petitioner failed to fulfill the requirement of talbs. The petitioner has not been able to substantiate his claim by producing convincing, cogent, reliable and confidence inspiring evidence to prove talbs in accordance with law. Thus the Courts below have legally and correctly appreciated the evidence produced by the parties and rightly rejected the claim of petitioner. The concurrent findings of both the Courts below are based on correct appreciation of evidence and the law applicable thereto. No misreading and non-reading of evidence or jurisdictional error was pointed out by the counsel for petitioner.

10. Accordingly, for the reasons stated hereinabove, the revision petition being without force is hereby dismissed with no order as to cost. AG/227/P Revision dismissed.