P L D 2001 Lahore 194 (PLP)

ASIF SAEED KHAN KHOSA, J.

The necessary facts giving rise to the present appeal are that through a registered sale deed (Exh.P.17) dated 7-8-1990, 656 Kanals and 2 Marlas of agricultural land in Chak No. 130/EB, Tehsil Burewala, District Vehari was sold by one Rashid Afzal to the present respondents for a consideration of Rs.57,60,000 and Mutation No.242 (Exh.D.14) in that regard was attested on 15-9-1990. On 4-12-1990 the present appellant filed a suit for possession through pre-emption in respect of the said sale of land against the present respondents claiming his right of pre emption on the basis of his being Shafi Sharik, Shafi Khalit and Shafi Jar. In the plaint filed by the appellant it had been specifically averred that he had made the requisite Talb-i-Muwathibat as well as Talb-i-Ishhad in that regard. It was further averred in the plaint that the appellant needed to exercise his right of pre-emption on account of ' Zaroorat' and to avoid ' Zarar' . The respondents filed a written statement and contested the suit of the appellant. On the basis of divergent pleadings of the parties the learned trial Court framed as many as eight issues which are reproduced here as under:-- (1) Whether the plaintiff has got superior right of pre-emption? OPP . (2) Whether the plaintiff has completed Talb-i-Muwathibat and Talb-i -Ishhad as envisaged by law? OPP (3) What is the 'Zarar' or 'Zaroorat' of suit-land to the plaintiff? OPP (4) Whether the plaintiff has got no cause' of action to bring the suit? OPD (5) Whether the plaintiff has waived his right of pre-emption, if any? OPD (6) Whether the defendants spent incidental charges Rs.4,95,176 and entitled to receive the same? OPD (7) Whether the plaintiff was served with a notice by the defendants regarding the impugned sale? OPD (8) Relief. 2, In support of his case the appellant appeared before the learned trial Court as P.W.l and produced Javed Rashid (P.W.2) and Muhammad Amin (P.W.3) as witnesses of Talb-i-Muwathibat and Talb-i-Ishhad. Muhammad Yousaf Patwari (P.W.4) produced the relevant Revenue Record and Abdul Hamid Patwari (P.W.5) produced an 'Aks Shajra'. Abdul Majeed appellant appeared again as P.W.6 in rebuttal and he produced Manzocr Ahmed (P.W.7) in rebuttal of the evidence of waiver of right of pre-emption produced by the respondents. Documentary evidence was also produced by the appellant before the learned trial Court in the shape of Exhs.P1 to P

17. As against that Inayat Ali respondent appeared as D.W.1 and produced Abdul Wahid (D.W.2) and Naseer Ahmed (D.W.3) as witnesses to establish waiver of the right of pre-emption on the part of the appellant. Munawar Ahmed, Press Reporter of the daily 'Jung' and Muhammad Safdar Press Reporter of the daily 'Nawa-i-Waqt' appeared as D.W.4 and D.W.5 and they deposed about publication of advertisements in the abovementioned newspapers regarding sale of the suit-land. Allah Ditta, deed writer entered the witness-box as D.W.6 and stated about- scribing of the sale-deed by him and about presence and participation of the appellant in the transaction of sale. The respondents also produced documentary evidence before the learned trial Court in the shape of Exhs. D1 to D21.

3. After appraising the evidence available on the record and hearing the arguments of the learned counsel for the parties the learned Civil Judge 1st Class, Burewala, District Vehari dismissed the suit of the appellant through judgment and decree dated 24-4-1992 while leaving the parties to bear their own costs. The learned trial Court had found issues Nos.1, 2 and 7 against the plaintiff-appellant and Issues Nos.4, 5 and 6 in favour of the defendants respondents. No finding was recorded by the learned trial Court on Issue No.3. The said judgment and decree has been assailed by the appellant before this Court through the present appeal.

4. We have heard the learned counsel for the parties at some length and have also perused the record with their assistance. According to the learned counsel for the appellant only findings recorded by the learned trial Court on Issues Nos. 1, 2 and 5 are to be assailed by the appellant before this Court. It has been maintained by the learned counsel for the appellant that Issue No.4 is only incidental to the abovementioned Issues Nos. 1, 2 and 5 whereas no finding was required on Issue No.3 regarding 'Zaroorat' and avoidance of 'Zarar' as the provisions of subsection (2) of -section 6 of the Punjab Pre emption Act, 1.991 had already ceased to have effect pursuant to a judgment rendered by the Shariat Appellate Bench of the Supreme Court of Pakistan. No other issue is sought to be pressed by the appellant before this Court. As against that the learned counsel for the respondents has supported the findings of the learned trial Court on all the issues and has further maintained that Issue No.3 had never become redundant and, therefore, in the absence of any evidence led by the appellant regarding 'Zaroorat' or avoidance of 'Zarar' the appellant could not assert his right of pre-emption.

5. Due to the controversy between the parties over the continued efficacy of Issue No.3 we have decided to take up that issue first and to see its effect and, if need be, to give a finding thereon on the basis of the evidence available on the record.

6. The provisions of section 6 of the Punjab Pre-emption Act, 1991 are reproduced here for facility of reference: "

6. Persons in whom the right of pre-emption vests --(1) The right of pre-emption shall vest-- (a) firstly, in Shafi Sharik; (b) secondly, in Shafi Khalit; and (c) thirdly, in Shafi Jar. EXPLANATIONS: I. 'Shaft Sharik' means a person who is a co-owner in the corpus of the undivided immovable property sold. II. 'Shaft Khalit' means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation. III. 'Shaft-Jar' means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold. (2) Notwithstanding anything in subsection (1), the right of pre-emption ' shall be exercisable only in case of 'Zaroorat' or to avoid 'Zarar'." The provisions of subsection (2) of the above-reproduced section 6 of the Punjab Pre-emption Act, 1991 were challenged before the Federal Shariat Court on the ground of their repugnance to the Injunctions of Islam. Through its judgment dated 13-5-1991 the Federal Shariat Court in the case of Muhammad Ismail Qureshi and others v. Government of Punjab and others PLD 1991 Federal Shariat Court 80 declared the provisions of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 to be repugnant to the Injunctions of Islam and it was directed that the said provisions shall cease to have effect on 31-12-1991 unless amended or altered by the Provincial Legislation so as to bring them in conformity with the Injunctions of Islam. The said judgment was assailed before the Shariat Appellate Bench of the Supreme Court of Pakistan through the case of Haji Rang Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 but through the judgment dated 2-9-1993 the said appeal was dismissed by the Shariat Appellate Bench of the Supreme Court of Pakistan upholding the findings of the Federal Shariat Court regarding repugnancy of the provisions of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 to the Injunctions of Islam. Through the said judgment Shariat Appellate Bench of the Supreme Court of Pakistan declared that the said provisions shall cease to have effect on 31-12-1993.

7. While dealing with Issue No.3 the learned trial Court in the present case had observed that the provisions of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 had already been declared to be repugnant to the Injunctions of Islam by the Federal Shariat Court and the said provisions had ceased to have effect and, therefore, it was neither proper nor necessary to give any finding on the said issue which, according to the learned trial Court, had become infructuous. However, despite those observations having been made the learned trial Court still proceeded to observe on that issue that: "The plaintiff as P.W.I asserted that he is in need of suit land, moreover he has got sale price furthermore the defendants blocked the road after purchasing suit-land and also got stay order against 'Pulli' hence Zaroorat has been caused to the plaintiff because the road and Pulli is still incomplete. It has been observed under Issue No.1 that neither the plaintiff is Shafi Khalit nor Shafi Jar. The plaintiff is not a participator in the special rights attached to the suit-land, such as right of passage or right of passage of water, therefore, the question of Zaroorat to the plaintiff fr9m the suit-land does not arise, moreover the Zaroorat has not been specified by the plaintiff rather statement of the plaintiff is vague and not self explanatory. In that backdrop the learned counsel for the appellant has argued before us that although in paragraph N6.8 of the amended plaint filed by the appellant it has specifically been averred by the appellant that he needed to pre-empt the sale in question on account of "Zaroorat" and to avoid "Zarar" yet on account of the declaration of repugnancy to the Injunctions of Islam vis-a-vis the provisions of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 by the Federal Shariat Court no evidence was led by the appellant before the learned trial Court on that issue. As against that the learned counsel for the respondents has maintained before us that the provisions of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 had not ceased to have effect when the evidence of the appellant was recorded before the learned trial Court. Thus, according to him, no evidence was available on the said issue and in the absence of proving "Zaroorat" or avoidance of "Zarar" a claim for possession through pre-emption could not lawfully be asserted by the appellant.

8. It has already been observed by us above that the relevant judgment had been rendered by the Federal Shariat Court on 13-5-1991 and it was to have effect on 31-12-1991. A perusal of the order-sheet of .the learned trial Court in the present case shows that all the evidence of the appellant was recorded by the learned trial Court on 30-10-1991 on which date the provisions of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 were very much a part of the said Statute. It may also be relevant to mention here that even on 31-12-1991 the abovementioned provisions of subsection (2) of section 6 of the said Act did not cease to have effect on account of the fact that an appeal had been preferred against the judgment of the Federal Shariat Court before the Shariat Appellate Bench of the Supreme Court of Pakistan. A reference to the proviso to clause (2) of Article-203-1) of the Constitution of the Islamic Republic of Pakistan, 1973 shows that a judgment rendered by the Federal Shariat Court is not to take effect during the period of limitation prescribed for preferring an appeal there against before the Shariat Appellate Bench of the Supreme Court of Pakistan and throughout the pendency of such an appeal, if preferred. It has also been noticed by us above that the relevant judgment was rendered by the Shariat Appellate Bench of the Supreme Court of Pakistan on 2-9-1993 which was to take effect from 31-12-1993. Thus, till 31-12-1993 the provisions of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 effectively remained a part of the said statute. However, by 31-12-1993 the suit filed by the present appellant had already been decided by the learned trial Court on 24-4-1992. In this view of the temporal sequence of developments it is quite clear that at all the stages during the trial of the present case the provisions of subsections (2) of section 6 of the Punjab Pre-emption Act, 1991 were very much a part of the said statute and admittedly the appellant had led no evidence at all on the scores of "Zaroorat" or avoidance of "Zarar". A reading of the provisions of section 6 of the Punjab Pre-emption Act, 1991 shows that subsection (2) thereof defined the philosophy of the Islamic right of pre-emption and subsection (1) thereof only mentions the persons who are entitled to exercise that right. Thus, unless a pre-emptor fulfilled the criteria of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 he could not maintain a suit for pre-emption under subsection (1) of the said section. While observing this we are fortified by the judgments rendered in the cases of Sardar Khan and others v. Muhammad Siddique 2000 MLD 616; Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200; Muhammad Ali v. Muhammad Hussain 1995 MLD 5; Fazal Ellahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85 and some observations made in the case of Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC

870. In view of this settled position of law and in view of the legal position that subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 was very much a part of the said Statute at all the relevant stages of the trial of the appellant's suit and also in view of the admitted position that the appellant had not led any evidence on the all important requirements of "Zaroorat" or avoidance of "Zarar" we are left with no option but to hold that because of the failure of the appellant to prove "Zaroorat" or avoidance of "Zarar" under subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 the appellant's suit could not be decreed in his favour even if he could succeed in proving his right of pre emption under subsection (1) of section 6 of the Punjab Pre-emption Act, 1991.

9. When confronted with this legal hurdle the learned counsel for the appellant stated that the appellant had averred about "Zaroorat" and avoidance of "Zarar" in Ills plaint and had also adverted to the same in his statement made before the learned trial Court as P.W.1. Suffice it to observe in this context that controverted pleadings can never be equated with positive evidence and the cursory mention of a blockade of some road or obtaining of a stay order regarding a "Pulli" mentioned by the appellant in his statement made before the learned trial Court as P. W.1 were hardly sufficient to prove the requisite "Zaroorat" or avoidance of "Zarar" for maintaining a suit for possession through pre-emption. Apart from that admittedly the said alleged incidents were developments which had statedly taken place after the impugned sale and the same could not by themselves positively reflect upon the appellant's requisite "Zaroorat" or avoidance of "Zarar".

10. For what has been observed above we have arrived at an inescapable conclusion that in the absence of meeting the requirements of subsection (2) section 6 of the Punjab Pre-emption Act, 1991 the appellant's suit for possession through pre-emption could not have been decreed in his favour en if he could succeed in establishing his right of pre-emption under subsection (1) of section 6 of the said Act.

11. Adverting now to Issue No.2 regarding the mandatory 'Tales' to be made for maintaining a suit for pre-emption we have noticed that elaborate reasons had been recorded by the learned trial Court for holding that the requirements under section 13 regarding mandatory "Tale-i-Mawathibat" and 'alb-i-Ishhad" had not been fulfilled by the appellant according to the spirit d import of the relevant law. According to the learned trial Court the appellant had himself stated about making of the said Talbs as P.W.1 and d produced Javed Rashid (P.W.2) and Muhammad Amin (P.W.3) in support of the said facts. In this context the learned trial Court had observed at the appellant had admitted that he did not know about the Talbs or the requirements thereof and he had acted on the advice of his counsel. In this view of the admitted position, according to the learned trial Court, the claim the appellant that he had made "Tale-i-Muwathibat" even before meeting s lawyer was palpably false. Javed Rashid (P.W.2) and Muhammad Amin .W.3) were very closely related to the appellant whereas there were other dependent witnesses available in that regard but they had never been produced before the learned trial Court in support of the assertion regarding making of the requisite Talbs. "Tale-i-Muwathibat" was allegedly made by e appellant after three months and twenty-three days of the sale in question d the said inordinate delay never stood properly explained. The appellant, view of his position in the locality, was quite likely to come to know of e sale in question soon after its bringing about as he was an owner of the neighbouring land, his brother was a tenant over a part of the suit-land, a use relative of the appellant was posted as Registry Moharrir and the mutation had been sanctioned in the village itself. All this, according to tl learned trial Court, clearly showed that the appellant had failed to meet the requisite requirements of "Tale-:-Muwathibat". As regards "Tale-i-Ishhad the learned trial Court had mentioned that respondent No.5 was a minor an a notice under section 13(3) of the Punjab Pre-emption Act, 1991 could not have lawfully been served upon respondent No.5 due to his nunority. It was further observed by the learned trial Court that the notice was served upon the respondents with a considerable delay and that there were contradiction between the contents of the notice (Exh.P.l). and the statement of the appellant at P.W.1. It was further observed by the learned trial Court the notice (Exh.P.1) was deficient in necessary details, there went contradictions in that regard between the statements made by P. W.1, P. W. and P.W.3 on the one hand and the notice (Exh.PI) and the averments in the plaint on the other hand. The learned trial Court had also found that the necessary formalities required for the mandatory "Tale-i-Ishhad" had no been complied with by the appellant. It has also been noticed by us that the notice (Exh.PI) had been sent by the appellant to the respondents almost four months after the sale in question. Such a delay in service of such a notice i more often than not fatal to a claim regarding pre-emption. A reference ii this regard may be made to the case of Muhammad Rafique v. Muhammad Ashiq and 2 others 1996 SCMR

441. It is also to be observed that if Talb-i Muwathibat is not made according to the established requirements thereof then the same can also be fatal to a pre-emptor's right of pre-emption. A reference in this regard may be made to the case of Mst. Ulfat Butt v Muhammad Arif, etc. 2000 YLR 2753. The learned counsel for the appellant has failed to point out any misreading or non-reading of the relevant record on the part of the learned trial Court. After assessing the evidence available in this case we are also in complete agreement with the learned trial Court regarding his finding on this issue, which are fully endorsed by us. According to section 13 of the Punjab Pre-emption Act; 1991 the right of pre-emption of a person is to stand extinguished unless making of the requisite "Tales" is properly established before the learned trial Court. Thus, in view of these findings on Issue No.2 the right of pre-emption of the appellant stood extinguished and the same had become incapable of enforcement.

12. On Issue No.5 regarding waiver of the right of pre-emption by the appellant the respondents had produced Abdul Wahid (D.W.2) and Naseer Ahmed (D. W.3). Inayat Ali respondent had also stated in his deposition a; D.W.1 about the presence of the appellant during the bargain of the sale, regarding obtaining of the requisite papers with the assistance of the appellant and in respect of utterances made by the appellant during the transaction in question. Abdul Wahid (D.W.2) and Naseer Ahmad (D.W.3) had deposed that before the sale in question the land was offered for purchase to the appellant in their presence but he had declined to purchase the same. Allah Ditta (D.W.6), who was the scribe of the sale-deed (Exh.P.17), had categorically stated about the presence and active participation of the appellant in the whole transaction. This witness was an independent witness and he had never been cross-examined qua his interest being adverse to the appellant or regarding any ill-will nourished by him against the 'appellant. The learned trial Court had referred to various pieces of evidence available on the record to conclude that the appellant had indeed waived his right of pre-emption on account of his conduct. The learned counsel for the appellant has failed to point out any misreading or non-reading of the relevant record on the part of the learned trial Court on this issue. It has, however, been argued by the learned counsel for the appellant that even if the statements of the D.Ws. on waiver are accepted as correct still no waiver on the part of the appellant had been constituted in the eyes of law. In this connection he has referred to the case of Abaid-ur-Rehman and others, v. Mahmand and others 1999 SCMR 201 to maintain that failure of a pre-emptor to purchase the suit land, when offered, on account of paucity of funds does not constitute waiver. The learned counsel for the appellant has also referred to the case of Haji Sultan Ahmad (deceased) through his Legal Representatives v. Nasim Raza and 6 others PLJ 1996 SC 1651 to contend that even presence of a prospective pre-emptor at the time of the sale in question does not constitute waiver in the eyes of law. All these submissions made by the learned counsel for the appellant fail to take notice of the wording of the provisions of section 15 of the Punjab Pre-emption Act, 1991 according to which "The right of pre-emption shall be deemed to have been waived if the pre-emptor has acquiesced in the sale in question or has done any other act of omission or commission which amounts to waiver of the right of pre-emption". The word acquiescence has been introduced into the concept of waiver in matters of pre-emption for the first time through the Act of 1991 whereas no such word was used in the Punjab Pre-emption Act, 1913. According to its dictionary meanings the word 'acquiescence' connotes satisfaction, lack of opposition or giving of assent. Thus, deliberate inaction on the part of a prospective pre-emptor, which previously did not constitute waiver, now stands incorporated in the concept of waiver through legislative action. It had come on the record in this case that the land in question had been offered to the appellant for purchase before its sale to the respondents, nine advertisements had been published in the daily 'Jung' and the daily 'Nawa'i'Waqt' regarding the proposed sale of the said land which advertisements had been proved by Munawar Ahmad (D.W.4) and Muhammad Safdar (D.W.5) and active participation of the appellant during the transaction in the question had been deposed about by Inayat Ali respondent as D.W.1 and by Abdul Wahid (D.W.2), Naseer Ahmad (D.W.3) and Allah Ditta (D.W.6). A reading of the totality of evidence available on the record inescapably creates an impression that it was simply not possible for the appellant not to know of the proposed sale of the suit land and his inaction in that regard shows acquiescence on his part. The appellant lives in the same village where the land in question is situate, the land of the appellant abuts the suit-land, a real brother of the appellant was a tenant over a part of the suit-land, a close relative of the appellant was posted as Registry Moharrir and he was involved in purchase of the non-judicial stamp papers for the sale-deed and in other steps regarding the transaction in issue, the mutation of the sale was sanctioned in a 'Jalsa-i-Aam' in the village of the appellant, the appellant was a former member of the District Council, Vehari and, thus, was very well placed in the locality and was likely to be well-informed and the appellant did not make any 'Talb' after the sale in question for three months and twenty-three days. The statements made by the D.Ws. in respect of acquiescence on the part of the appellant are so convincing and the rebuttal of the appellant in that regard is so evasive that no other finding on this issue was reasonably possible than the one rendered by the learned trial Court in this case. The totality of the effect of the evidence available on the record is that the appellant's actions during the transaction of sale in question and his subsequent inaction for so long after the sale show nothing but acquiescence on his part to the said sale. The requisite 'Talbs' were allegedly made by the appellant and the suit for possession through pre-emption was filed by the appellant at a time when the period of limitation for filing such a suit was about to run out. This clearly showed a change of heart on the appellant's part which also reflects upon the initial acquiescence arid waiver on the part of the appellant. For all these reasons we have felt no hesitation in concluding that the appellant had indeed waived his right of pre-emption in this case and, thus, the learned trial Court's finding on this issue is upheld and endorsed by us. On account of this waiver on the part of the appellant any right of pre-emption possession by the appellant was surely lost by him.

13. In view of our findings on Issues Nos. 2, 3 and 5 recorded above the appellant's right of pre-emption, if any, had not only been lost due to, waiver but the same had also been extinguished on account of failure of the appellant to meet the requisite requirements regarding the mandatory 'Talbs' Over and above all that the failure of the appellant to prove "Zaroorat" or avoidance of "Zarar" in terms of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 had rendered his asserted right of pre-emption to be incapable of enforcement. As a sequel to these findings we deem it unnecessary to discuss Issues Nos. 1 and 4 pertaining to the appellant's superior right of pre-emption and his cause of action to file a suit for possession through pre-emption.

14. For what has been discussed above this appeal is dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K:/A-161/L Appeal dismissed.