2005 PLP 1231 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This direct appeal has been preferred against the judgment dated 21-2-2000 passed by a Division Bench of the Lahore High Court, at Multan in R.F.A. No.84 of 1993 arising out of a suit for pre-emption.

2. The relevant facts giving rise to this appeal are that the appellant pre-empting the sale of land measuring 104 Kanals, 12 Marlas situated in Chak No.83/12-L, Tehsil Chichawatni, District Sahiwal vide registered sale-deed dated 17-1-1990, filed a suit on 16-5-1990 claiming superior right of pre-emption on the basis of contiguity. The suit was resisted by the respondents-vendees denying the superior right of pre-emption of appellant and performance of Talbs by him in accordance with law. The learned trial Judge decreed the suit vide judgment dated 12-12-1993 but the High Court in regular first appeal filed by the respondents dismissed the suit by reversing the finding of the trial Court on the issue regarding the fulfilment of the requirement of Talbs.

3. The learned counsel for the appellant has contended that the suit was filed during the period when there was no statutory law and it was to be necessarily governed by the pure Muslim law of pre-emption, therefore, the fulfilment of the requirement of Talbs under the Muslim law could not be judged on the touchstone of the statutory law and the decision of the issue relating to the performance of Talbs in the light of the provisions of section 13 of the Punjab Pre-emption Act, 1991 was not legal. In support of the arguments learned counsel has placed reliance on Haji Qadir Gul v. Moembar Khan and another 1998, SCMR 2102 and Malik Nazar Muhammad v. Haji Abdul Raul and another PLD 1992 Quetta

9. The learned counsel, however, laid much stress on the point that the .High Court without disposing of the application under Order XLI, Rule 27, C.P.C. for additional evidence was not justified to decide the appeal on merits and contended that in similar circumstances, this Court in Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1981 remanded the case to the lower Court for disposal of the application for additional evidence at the first instance, whereas in the present case, on the one hand, the High Court held that there was no evidence of service of notice of Talb-i-Ishhad which was fatal to the suit but on the other hand, did not allow the appellant to bring on record the copy of notice of Talb-i-Ishhad sent by him to the vendee to prove the service of such notice.

4. We having heard the learned counsel for the appellant and also perused the record with his assistance find that the learned Judges in Chambers in the High Court dealt with the matter relating to the production of additional evidence in para. 7 of the judgment in detail and disposed of the application moved by the appellant under Order XLI, rule 27, C.P.C. for additional evidence in the light of law laid down by this Court in Ghulam Jillani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001, therefore, there was no need of passing a separate order on the said application. The additional evidence can be allowed only in exceptional circumstances in a case in which the evidence required to be brought on record was essential for the just decision of case and such evidence was either not available or was beyond the reach of the party concerned at the relevant time or it pertaining to the official record was not in his knowledge. The perusal of record would show that except the oral assertion, the appellant has not been able to bring on record any evidence of service of notice of Talb-i-Ishhad and the respondents in the written statement has clearly denied service of such notice, therefore, the burden was on the appellant to prove the service but he for the first time at the appeal stage after delay of about five years made an application to bring on record the photo-stat copy of the notice in support of his assertion that notice of Talb-i-Ishhad was given. The requirement of law is that notice should be sent through registered post and in absence of service of notice by registered post, no presumption of service of notice on the basis of oral assertion, can be raised, therefore, the photo copy of notice even if would have been produced in evidence, it would not be an evidence of service of notice. In the peculiar circumstance of the case, we find that the request of the appellant for permission to produce the additional evidence in appeal was rightly declined by the High Court.

5. The right of pre-emption is feeble right and the requirement of law is that its existence and enforcement must be strictly observed. The pre-emptor must prove the performance of Talbs through clear evidence which is fundamental requirement for enforcement of the right of pre-emption under the Punjab Pre-emption Act, 1991 and also under Muslim law of pre-emption. The statutory law is based on the concept of Muslim pre-emption law, according to which without fulfilling the requirement of Talbs namely Talb-i-Muwathibai and Talb-i-Ishhad in proper manner, the right of pre-emption is extinguished and Talb-i-Muwathibat must be made immediately on coming to know about the sale. Talb-i-Muwathibat is a first and immediate demand by the pre-emptor to make a proclamation and pronouncement of his intention to exercise right of pre-emption and Talb-i-Ishhad is second demand which must be established to have made in the manner it is required to be made under the law. This is correct that during the period in which the suit was filed, there was no statutory law and the pre-emption suit would be governed in accordance with the Muslim law of pre-emption but it would be seen that according to Muslim law of pre-emption, the right of pre-emption cannot be claimed without fulfilling the requirement of Talbs, and non-performance of Talb-i-Muwathibat, or Talb-i-Ishhad as the case may be, would defeat the right of pre-emption. This Court in Haji Qadar Gul v. Moembar Khan and another 1998 SCMR 2102 held that in the Islamic law of pre-emption Talb-i-Ishhad must be made in the presence of at least two witnesses which should be made with a little delay as is possible in the circumstances and reference should be made at the time of Talb-i-Ishhad that Talb-i-Muwathibat had previously been made. It was observed in Sardar Ali and others v. Additional Secretary Home and T.A. Department and others 1996 SCMR 1480 as under:-- ".... It is now settled once for all that the requirement of Talbs beings a sine qua non for the enforcement of the right of pre-emption recognized by the Muslim Law, its non-compliance had the effect of extinguishing the pre-emptive rights of all the pre-emptors. The statement of law makes no distinction between the cases under the statutory law of pre-emption or under the Muslim Law, pure and simple. Admittedly, the areas under Regulation No.II of 1975 are governed by the pre-emption law under the General Muslim Law under which, the requirement to Talb is one of the essentials for exercising the rights of pre-emption. It would not, therefore, make any difference if the N.-W.F.P. Pre-emption Act (Act No.X of 1987) has not been extended to the Provincially Administered Tribal Areas." Similar view was taken in Khairullah v. Sultan Muhammad and another 1997 SCMR

906. In the present case, in the plaint, there was no mention of particular date and place of making the demand of Talb-i-Muwathibat or when the plaintiff acquired the knowledge about the transaction rather it was stated in the general terms that in the beginning of May, 1990 the plaintiff came to know about the transaction and thus the performance of Talb-i-Muwathibat and Talb-i-Ishhad in the manner in which the law required was not satisfied. The evidence produced by the appellant would not show that two Talbs were made by the appellant either in terms of Muslim law of pre-emption or in, accordance with the statutory provision. The learned Judges in Chambers in the High Court having examined the question of performance of 'albs in the light of the evidence on record held that the Talbs were not performed in accordance with the requirement of law and we having gone through the record have not been able to differ with the above view of the .High Court on the question of performance of Talbs which must be proved through the clear evidence. The appellant has not been able to establish this essential requirement of law, therefore, the finding of the High Court on this precise question was not open to any exception and we hold that dismissal of suit was in accordance with law. The provisions of section 13 of the Punjab Pre-emption Act, 1991 being not in conflict to the concept of Muslim pre-emption law, the reference made by the learned Judges in the High Court to the said provisions while deciding the question of fulfilment of the requirement of Talbs for exercise of right of pre-emption according to Islamic Law would cause no prejudice to him on merit.

6. We having examined the record, with the assistance of learned counsel for the parties, have not been able to find out any defect of misreading or non-reading of evidence or any other legal or factual infirmity in the judgment of the High Court to interfere and consequently, having found no substance in this appeal, dismiss the same with no order as to costs. S.A.K./M-265/S. Appeal dismissed.