1998 PLP 2102 (SCMR)

KHALIL-UR-REHMAN KHAN, J.

This appeal by leave of the Court arises out of a suit for possession of house through pre-emption filed on 22-8-1991 by the appellant before the Assistant Political Agent/Deputy Commissioner under Provincially Administered Tribal Areas Regulation (hereinafter referred to as PATA Regulation) against Moember Khan respondent No.

1. On appearance respondent No.1 disclosed that he had purchased the suit house in the name of his son Naveed Gul who is minor with the result that the plaint was returned on 29-1-1992 for presentation before the competent Court i.e. Senior Civil Judge. Amended plaint was then filed on 14-2-1992 impleading along with Moembar Khan the father, Naveed Meombar the minor son through his father as the next friend. Learned Senior Civil Judge Malakand Camp Dargai, vide order dated 12-4-1992 dismissed the suit, inter alia, observing that no notice was sent to the defendant No.2, the real vendee and that even the notice placed on the file which was sent to defendant No. l on 25-7-1991 at the time of filing the suit with the Assistant Political Agent/Deputy Commissioner does not fulfil the requirements of Talb-i-Ishhad as the same has not been attested by two truthful witnesses and as plaintiff was under obligation to fulfil Talbs as he himself chose to sue under the new Pre-emption Act, which he has not fulfilled, his right to pre-empt extinguishes. The appeal filed by the appellant was dismissed by the learned District Judge, Malakand Batkhela vide judgment dated 14-7-1992 affirming the afore-noted view of the learned trial Court. It was, however, added that it appears that instead of rejection of the plaint, the trial Court dismissed the suit inadvertently, which was a mere irregularity and that the suit was not maintainable. Thus, according to the learned District Judge, judgment of dismissal of the suit was in effect an order rejecting the plaint under Order VII Rule 11 C.P.C.

2. This judgment of the learned District Judge/appellate Court was then challenged by the appellant by filing a Revision Petition under section 115 C.P.C. before the Peshawar High Court which was also dismissed vide impugned judgment dated 26-9-1993 observing that no decree could be passed in favour of the plaintiff/appellant in the absence of fulfillment of requirement of Talbs. Reference was made to judgment of the Shariat Appellate Bench of this Court in Suo Motu Shariat Review Petition No. l-R of 1989 (PLD 1990 SC 865). The appellant then filed a Petition for leave to appeal before this Court wherein leave to appeal was granted on 24-5-1994 to consider the contentions that:-- (1) there had been a specific allegation in the plaint that on having come to know of sale of the house in question plaintiff had declared there and then his right of preemption and had sent a Jirga and also a notice as required under the law; and (2) the N.-W.F.P. Pre-emption Act, 1950 was extended to the area in question and after the decision of this Court in Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), the N.W.F.P. Pre-emption Act, 1987 having not been extended to the area, the Courts below were wrong to dismiss the suit without recording the evidence on merits of the case, though the provision of Talb had been fully complied with.

3. We have heard the submissions of the learned counsel for the parties. It is pertinent to observe that the suit was filed by the appellant on 22-8-1991 before the Assistant Political Agent/Deputy Commissioner under PATA Regulation to pre-empt the sale of a house in village Kherki. Tehsil Dargai, Malakand Agency situated in PATA. The N.-W.F.P. Pre-emption Act, 1950 (Act XIV of 1950) which held the ,field was repealed on 28-4-1987 by section 35(1) of N.-W.F.P. Pre-emption Act, 1987 (Act X of 1987). Act X of 1987 itself was enacted in response to a direction given to the Government of N.-W.F.P. by Shariat Appellate Bench of this Court in Malik Said Kamal's case (supra). The exact direction given was to amend N.-W.F.P. Pre-emption Act, 1950 according to Islamic injunctions before 31-7-1986 otherwise the said Act would be considered void thereafter. Act X of 1987 was though enacted but the same was not extended to PATA of the N.-W.F.P. for years till 25-9-1994 when notification No. Legis, 1 (9)/70 Vol. VIII was issued applying the N.-W.F.P. Pre-emption Act, 1987 to the PATA of the N.-W.F.P. except Kala Dhaka of District Mansehra. A question "whether the Muslim Law of pre-emption applied to PATA during the period that Act X of 1987 had not been extended to PATA" arose in the case of Sardar Ali and others versus Additional Secretary Home and T.A. Department and others (1996 SCMR 1480) and it was observed as under:-- "3 It is now settled once for all that the requirement of Talbs being a sine qua non for the enforcement of the right of pre-emption recognized by the Mulsim Law, its non-compliance had the effect of extinguishing the pre-emptive rights of all the pre-emptors. This 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 right 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 reiterated by this Court in Khairullah versus Sultan Muhammad and another (1997 SCMR 906). The law thus enunciated is that the areas under Regulation No.II of 1975 are governed under the principles of pre emption law as enunciated by the Muslim jurists and these principles recognise the requirement of Talbs as one of the essentials for exercising the right of pre emption. The aforesaid position of law is not disputed by the learned counsel for the parties.

4. The contention of the learned counsel for the appellant was that the requirement of Talb under the general Muslim law does not require a written notice attested and authenticated by witnesses and as such learned Courts below acted illegally in non-suiting the appellant/plaintiff on account of the fact that the notice sent was not authenticated by the two witnesses. According to him, such a notice has been provided under section 13(3) of Act X of 1987 but Act X of 1987 itself,having not been applied to the PATA, non-service of notice as required by section 13 thereof cannot be made basis for rejecting the plaint. Learned counsel for the respondents, on the other hand, relied upon the observations contained in Khani Zaman v. Shah Hussain and others (PLD 1998 SC 121) which read as under:-- "Admittedly, no date of ' Talb-i-Muwathibat' is mentioned in the plaint nor place of acquiring knowledge of transaction is mentioned therein, nor the names of any of the witnesses are given. Admittedly, the transactions pre-empted by the petitioner were distinct and separate but the plaint is silent with regard to making of ' Talb-i-Muwathibat in respect of each transaction. The evidence examined by the petitioner about the time of making ' Talb-i-Muwathibat' and ' Talb-i-Ishhad' is in conflict with the case set up by him in the plaint. In the plaint two - Talbs' are said to have been made on one and the same day, whereas the evidence led by the petitioner showed that ' Talb-i-Muwathibat' was made two days prior to 'Talb-i-Ishhad'. The detail regarding time and place of ' Talb-i-Muwathibat' is an important factor because the period of limitation for 'Talb-i-Ishhad' is calculated therefrom."

5. A very perusal of the above quoted observations would show that the precedent relied upon by the learned counsel for the respondents is distinguishabld. In the said suit, more than one transactions were sought to be pre-empted and the plaint was silent with regard to making of ' Talb-i -Muwathibat' in respect of each transaction and then the evidence examined about the time of making ' Talb-i-Muwathibat' and ' Talb-i-Ishhad' was in conflict with the case set up in the plaint. In the instant case, even written statement was not filed and the plaint was rejected as held by the learned District Judge under Order VII Rule 11 C.P.C. observing that the notice sent was not ~authenticated or attested by two witnesses as required by law he Court thus applied the provisions of section 13(3) of Act X of 1987 which read as follows:-- "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 32, or knowledge, whichever may be earlier, make Talb-i-Isshad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement 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-e-Ishhad in the presence of two truthful witnesses."

6. The Trial Court, thus, rejected the plaint on the basis of the provisions of pre-emptioq law which by then had not been made applicable to PATA. It is pertinent to note that under general principles of Muslim law of pre-emption, C service of notice authenticated by two witnesses is not one of the requirement of Talb-i-Ishhad. In Hamilton's Hedaya (1975 edition) Volume III, Book XXXVIII, Chapter II at pages 550-551 the subject of Talbs is discussed as under:-- "The first of these is termed Talb Mawasibat, or immediate claim, where the Shafee prefers his claim the moment he is apprised of the sale being concluded; and this it is necessary that he should do, insomuch that if he make any delay his right is thereby invalidated When news of the sale is brought to the Shafee it is not necessary, according to Haneefa, that he asserts his intention of claiming the Shaffa before witnesses unless the news be communicated to him by two men or one man and two women, or, one upright man. The two disciples maintain that he ought to declare his intentions before witnesses as soon as the news is communicated to him by one person, being either a freeman or a slave, a woman or a child,

provided, however, that the person be, in, his belief; a true speaker ..The second mode of claim to Shaffa is termed the Talb Takreer was Ishhad, or claim by affirmation and taking to witness; and this also is requisite; because evidence is wanted in order to establish proof before the magistrate; and it is probable that the claimant cannot have witnesses to the Talb Mawasibat, as that is expressed immediately on intimation being received of the sale. It is, therefore, necessary afterwards to make the Talb Ishhad was Takreer, which is done by the Shafee taking some person to witness. " Mr. Baillie in his Digest of Muhammadan Law says:-- "By Talb-i-Ishhad or demand with invocation of witnesses, is meant a person calling on witnesses to attest his Talb-i-Mawasibat or immediate demand; to give validity to the Talb-i-Ishad, it is required that it be made in the presence of the purchaser or seller, or on the premises which are the subject of sale." The requisites of valid ' Talb-i-Ishhad' and conditions necessary therefor are

(1) It must be made in presence of at least two witnesses. [Pachumuddin Naye versus Abdul Ghaffur and others (AIR 1937 Calcutta 283)]. (2) It should be made with a little delay as possible in the circumstances. [Muhammad Raza Ali Khan versus Mohammad Israr Hasan Khan AIR 1929 Allahabad 459)]. (3) A reference should be made at the time of Talb-i-Ishhad (second demand) to the fact that Talb-i-Muwathibat (first demand) had previously been made. [Rejjub Ali Chopedar versus Chundi Churn Bhadra and others (ILR 17 Calcutta 543)]. (4) Damand of pre-emption may be made to the vendee or to his agent or to the vendor or on the premises sold on different circumstances. [Faqir Shaikh versus Syed Ali Shaikh and others (AIR 1955 Calcutta 349)].

7. It is to be noted that the question whether Talb-i-Ishhad made to the father who is guardian of the minor son was valid or not could only be gone into had the suit been allowed to proceed on merits. The averments as to Talb are admittedly contained in the plaint. As such, the plaint could not legally be rejected under order VII Rule 11 C.P.C. as if the plaint failed to show a cause of action on account of omission to plead the fulfilment of requisite Talbs.

8. Reference may also be invited to Amir Jan and 3 others versus Haji Ghulam Muhammad (PLD 1997 SC 883) as it was observed therein that requirement of law as to Talbs will be fully met if it is alleged in the pleading that after having come to know of sale, pre-emptor declared his intention to pre-empt such sale and material fact is to be proved at the trial through evidence on issue framed in that regard, as evidence to be led need not be alleged in the plaint. Learned trial Court thus misconceived the position of law obtaining in the matter and the mistake so committed was not noticed by the learned District Judge in appeal and the learned Judge of the High Court while dismissing the revision petition. Hence, the impugned judgments cannot be sustained.

9. The result of the above discussion is that the appeal is accepted. The impugned judgments of the Courts below are set aside and the matter is remanded to the learned Senior Civil Judge Malkand for trial of the suit afresh on merits in accordance with law which shall be decided within six months positively from the date of appearance of the respondents/defendants before the learned Senior Civil Judge. The parties are directed to appear before the learned Senior Civil Judge on 24-7-1998. No order is made as to costs. A.A./Q-4/S Case remanded