P L D 1993 Supreme Court 391 (PLP)

WALT MUHAMMAD KHAN, J.‑‑ The instant appeal, through leave of the Court, is directed against the judgment of the High Court of Balochistan 1993 Muhammad Khan v. Zakir Hussain SC 393 dated 4‑4‑1990, whereby the revision' petition riled by Haji Syed Abdul Haleem Shah, appellant herein, against the judgment and decree dated 16‑12‑1089 passed by Majlis‑e‑Shoora, Kalat at Mastung, was dismissed. The leave granting order is as follows‑ "Leave to appeal is granted in view of the fact that the Majlis‑e‑Shoora have found evidence on Talab‑e‑Mowasibat deficient while the High Court by the impugned judgment has found evidence on Talab‑c Ishhad deficient. The learned counsel for the petitioner has referred to the evidence on record to establish that there was deficiency in neither." The Facts of the case, brifly stated, arc that the appellant filed a suit for possession through pre‑emption against Haji Noorullah, predecessor in interest of the respondents in the Court of Assistant Commissioner Dalbandin under the provisions of Balochistan Civil Disputes Shariat Application Regulation, 1976. The defendant contested the suit whereupon the Assistant Commissioner, Dalbandin referred the matter to Qazi for decision according to law. After recording such of the evidence ' 'as the parties wished to adduce before it, the learned trial Court decreed the suit of the plaintiff/appellant vide judgment dated 31‑3‑1989. The respondents challenged the same before the Majlis‑e‑Shoora Kalat at Mastung Which was accepted and the judgment and decree of the trial Court was set aside and the suit dismissed. The revision riled against it having been dismissed through the impugned judgment, the instant appeal through leave of the Court has been riled. We have heard Mr. S.A.M. Quadri, Advocate, for the appellant; Raja M. Afsar, Advocate, for respondents 1 to 5; and have perused the record of the case. The ground which prevailed with the learned appellate Court in reversing the finding of the trial Court was that the plaintiff/appellant had not fulfilled the requirement of Talab‑e‑Ishhad as required under the Muslim Law of Pre‑emption inasmuch as it was neither made in‑ the presence of the vendee/defendant nor in the ‑presence of two witnesses. The only witness produced in support of Talab‑e‑Ishhad is Syed Swali P.W. but his statement is to the effect that he was informed by the pre‑emptor about his intention to pre empt the sale transaction' in question and that he had also disclosed his intention to Subedar Muhammad Afzal. At this juncture neither the vendec/defendant was present nor the vendor nor any other person to witness the Talab‑e‑Ishhad., Needless to emphasis that under Muslim law of pre‑e mption Talab‑e‑Ishhad has to be made either in the presence of the buyer, or the seller if he is still in possession or on the premises which are the subject matter of sale and in the presence of at least two witnesses. Since the essential requirements of Talb‑e‑lshhad have not been established by the plaintiff/pre emptor, he had lost his right of pre‑emption, and, as such, the judgment of Majlis‑e‑Shoora did not suffer from any legal infirmity and the learned High Court rightly declined to interfere with it. Resultantly, riding no merit in the instant appeal, the same is dismissed with no order as to costs. AA./A‑1003/S Appeal dismissed