P L D 1995 Quetta 1 (PLP)

MIR MUHAMMAD NAWAZ MARRI, J.--This appeal is directed against the judgment passed by learned Senior Civil Judge, Quetta on 3-4-1994, whereby the suit for possession through pre-emption was dismissed.

2. The facts briefly stated are that a suit for possession through pre emption was filed by the appellant in the Court of Senior Civil Judge, Quetta, on 25-7-1990, against the respondents with the averments that the respondents Nos.8 to 43 were the owners of 35 Kittas measuring 2129 Rods and 18 Poles in Khewat No. 60, Khatooni No. 61 situated in Mohal Road Karez Sanzala, Mouza Semzai, Halqa Gangalzai, Tehsil and District Pishin. Respondents Nos.8 to 43 sold a portion of land measuring 98 Rods and 38 Poles under Khasra No. 422 to respondents Nos. 1 to 7 for a consideration of Rs.9,68,800 and the possession of the said land was also delivered to them on 27-7-1989. It was further averred in the plaint that while the appellant was sitting in a Majlis he made Talab-e-Mawasbat and thereafter he went alongwith two witnesses at the site and made the second Talab-e-Ishhad. Thereafter he went to respondents Nos.l to 7 in Killi Shakkarzai and asserted right of pre-emption. On their refusal he filed the said suit.

3. The suit was contested by the respondents Nos. 1 to 7 whereas respondents Nos. 8 to 43 were declared ex parte. The claim of the appellant was repudiated by respondents Nos. 1-to 7 in their written statement.

4. Onthe pleadings of parties following five issues were framed:-- (i) Whether the suit is within time? (ii) What is the actual sale consideration of the land in dispute? (iii) Whether the plaintiff has made the requisite demands? If so, whether they have been made in accordance with law? (iv) Whether the plaintiff is entitled for the relief prayed for? (v) Relief? After framing the issues parties were directed to adduce evidence in support of their respective claim. The appellant produced two witnesses and got his own statement recorded, whereas respondents Nos. l to 7 produced five witnesses besides the statement of respondent No.l for himself and on behalf of respondents Nos. 2 to 7 as their attorney.

5. After assessing the evidence and hearing the counsel appearing for the parties trial Court dismissed- the suit on 3-4-1994. The present appeal has been filed against the abovesaid judgment.

6. We have heard Mr. Arshad Choudhary, Advocate for appellant and Mr. Ehsan-ul-Haq Advocate for the respondents Nos. 1 to

7. R-espondents Nos. 8 to 43 were not present.

7. Mr. Arshad Choudhary, Advocate urged that the trial Court has fallen in error by not properly appreciating the evidence produced by the appellant. His next contention was that both the Talbs were proved by the appellant through evidence but the lower Court has misread the evidence. He further argued that it was proved by the appellant that he was Shareek-e Khatta by producing document 'and through oral evidence. The trial Court failed to take into consideration this aspect of the case. On the other hand Mr. Ehsan-ul-Haq Khan, Advocate, vehemently argued that the appellant miserably failed to prove the Talbs which are indispensable condition for asserting right of pre-emption. He referred the 4" judgment of this Court being Civil Revision No. 81/94.

7. We have considered the arguments addressed by both the learned counsel for the parties and perused the record minutely. It is important to mention here that there are three Talbs for asserting the right of pre-emption which are given hereinbelow :- (i) Talb-e-Mawasbat or immediate demand, or jumping demand. (ii) Talb-e-Ishhad or Talab Taqreer or confirmatory demand also called demand with invocation of witnesses. (iii) Talb-e-Tamleeq or demand of possession also called Talab Khasoomat or demand by litigation. Talb-e-Mawasbat is spoken as first demand and Talb-e-Ishhad is the second demand. The third demand consists of the institution of the suit for pre-emption. The Talb-e-Mawasbat and Talb-e-Ishhad are conditions precedent to the exercise of right of per-emption. To assert of pre-emption it is indispensable condition to make the abovementioned demands in prescribed manner. According to Hidaya "The right of Shuffa (pre-emption) is but a feeble right, as it is the disseizing of another of his property merely in order to prevent apprehended inconvenience". Therefore, the formalities must be strictly observed and there must be clear proof of their observance.

8. Admittedly the land in dispute was purchased by the respondent on 27-7-1989, and on that very day the mutation entries were made in the name of respondents. The suit was filed by the appellant on 25-7-1990, after lapse of one year. The plaint does not disclose about the fact that when he came to know or when he got information about the sale. The witnesses produced by the appellant also could not tell the date, month and year when the Talbs were made. P.W. 1 Abdul Ali stated that when he was sitting in a Maidani of his village with Habib Ullah, Abdul Bari and the appellant, Abdul Baqi came there and informed the appellant about the sale of the disputed land. Appellant' immediately asserted the right of pre-emption and took them to the village of Taj Muhainmad Agha, who was sitting with five/six persons. He demanded possession of the land as he had a right of pre-emption. In cross-examination he showed his ignorance about date of the sale. He further stated that except Taj Muhammad Agha, they did not know rest of the respondents. P.W. 2 narrated same story except he did not say anything about making of Talb-e Mawasbat. He further added that Abdul Ali, Habib Ullah and appellant were his cousins. The appellant Abdul Ghias deposed in his statement that the sale transaction took place about four years ago. Abdul Baqi informed him about the sale one year after sale. He gave the details, the manner in which he made Talbs. He did not remember the date, month and year when Abdul Baqi informed him about the sale. In cross-examination he denied that the land was levelled through Tractor. He denied that Abdul Baqi, Habib Ullah, Abdul Ali and Abdul Bari were his cousins. He further stated that Abdul Baqi did not tell him the name from whom he got this information. It is worthwhile to mention here that Abdul Baqi who informed the appellant about the sale transaction was not examined. After examining the whole evidence it is quite clear that on the same day when sale transaction took place the entries were made in the revenue record. It is evident from bare perusal of the pleadings filed by the appellant that possession of the suit land was delivered to the respondent. It has also come on record that the distance between the two villages is hardly two Killumeires, by walking ii would take hardly few minutes to reach there. There is nothing on record to show that inhabitants of both the villages were hostile with each other or the land was sold secretly. Furthermore he claimed that the ' land in dispute adjacent to the land of appellant. In these circumstances it is beyond our comprehension that appellant came to know about the sale after 'I lapse of one year. In this regard the statement of P.W. 4 Tractor driver is very retevani as he was an independent witness. He had levelled the land dispute. He deposed that while he was levelling the suit land by his Tractor the appellant came there who happens to be his friend. He took tea with him and did not claim his right of pre-emption over th,, suit land.

9. Though it is not necessary to the validity of the Talb-e- Mawasbat that it would be performed in presence of witnesses. It is enough if the pre emptor makes known his intention in some way. But as for Talb-e-Ishhad is concerned it is essential that it should be made before witnesses. It is also necessary that when Talb-e-Ishhad is performed pre-emptor should expressly refer Talb-e-Mawasbat which he has made earlier. As we have observed hereinabove that to assert right of pre-emption both the abovementioned Talabs are indispensable condition. In case in hand none of the witnesses has deposed that pre-emptor while making Talb-e-Ishhad had referred Talb-e Mawasbat which he had supposedly made earlier. As it has been observed that the right of pre-emption is feeble right' and meant to avoid inconvenience to the owner of the adjacent land. It may be pointed out that respondents are not strangers there. It has also come on record by the official witnesses through documents that adjacent land belongs to respondents, therefore, it can easily be held that the respondents had right of pre-emption over the suit land as being Shafi-i-Jar. For the foregoing reasons appeal has no force which is accordingly dismissed leaving the parties to bear their own costs. These are the reasons of our short order dated 5-9-1994. AA./498/Q Appeal dismissed.