1991 PLP 365 (MLD)

Nemo for Petitioner (absent). Nemo Respondents Nos. 1 to 10 (absent). Kadir Bux Memon for Respondents Nos. 11 to

13. Date of hearing: 8th November, 1990. This First Appeal has been filed challenging the orders passed by the Senior Civil Judge, Sukkur in F.C. Suit No. 5/1982 whereby the plaint of the present appellant had been rejected under Order 7 Rule11 C.P.C. with no order as to costs. The facts giving rise to the present appeal are that the property in dispute bearing C.S. No. B-1129 situate at Bunder Road, Sukkur is adjoining to the property owned by the present appellant. This property in dispute was owned by the respondents Nos. 1 to 10 which was in occupation of 'respondents/defendants Nos. 11 to 13 which was sold by the owner to the present respondents Nos. 11 to 13 through a registered sale-deed dated 12-3-1981. Consequently the plaintiff/appellant filed the suit for possession by pre-emption claiming in the plaint that he had made the required Talabs: The defendants moved an application under Order 7 Rule 11 C.P.C. for rejection of the plaint on the ground that plaint does not disclose any cause of action and that the respondents/defendants. Nos. 11 to 13 being non-Muslims they are not subject to the Muslim Personal Law. The learned Senior Civil Judge relying on the case of Hamediya Badamiya- Sahib reported in I L R 1929 Bombay 525 held that in case of sale of property by a Muslim to a non-Muslim, the right of pre-emption as provided under Muhammadan Law would not be applicable unless a usage or custom is pleaded. He further observed that in the plaint no such usage and custom was pleaded and, therefore, the plaint was rejected under Order 7, Rule 11, C.P.C. None is present for appellant though notice was issued to him on 20-10-1990. Respondents Nos. 1 to 10 are served through publication but they are called absent. Mr. Kadir Bux Memon is present for respondents Nos. 11 to

13. I have heard Mr. Kadir Bux Memon, the learned counsel. It is settled law that in order to invoke the provisions of Order 7 Rule 11 C.P.C. only the plaint and its accompaniments are to be taken into consideration and not the case of the defendants that may be set up by them in their defence. In the present case the plaintiff has stated in his plaint that the subject-matter of the suit was owned by the present respondents Nos. 1 to 10 who are Muslims and the plaintiff himself is also a Muslim and therefore, they are governed by the Muslim law of pre-emption. It, is also stated in the plaint that the subject-matter of the suit is immovable property which has been sold by the present respondents Nos. 1 to 10 to the respondents Nos. 11 to 13 who are non-Muslims and also that the plaintiff had made the required Talab Mowasibat and Taiab Ishhad. In view of above the point which requires consideration in the present case at this stage is as to whether the law of pre-emption is one which applies to persons or to the property. As against above case of 1929 relied on by the learned Senior Civil Judge our own High Court in the case of Smt. Sundri Bai v. Ghulam Hussain 1982 CLC 2441 has held: "It is simply a right of substitution entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It is in effect, as if, in a. sale the vendee's name was rubbed out and the pre-emptor's name substituted in his place. I am accordingly of the view that in order to enforce a claim of pre-emption it is not necessary that both the pre-emptor and purchaser should be Muslims. The right of pre-emption being in the nature of a legal servitude running with the land, it could be enforced against the property in whosoever hand it may be. The respondent was, therefore, entitled to enforce the claim of pre-emption against the appellant in respect of the suit premises: It may further be observed that the law of pre-emption contemplates both the right and obligation. A Muhammadan owner of property is under an obligation imposed by Muhammadan Law to offer the property to his Muhammadan neighbour or partners before he can sell it to stranger and this is incident to his property which attaches to it whether the vendee be a Muhammadan or a non-Muhammadan. The right of pre-emption is an incident annexed to the property and, therefore, the same can be enforced against the property in whosoever hand the same may be. It is immaterial if the vendee is a non-Muslim where the pre-emptor and, the vendor are Muslims. In view of the above discussion I set aside the orders passed by the Senior Civil Judge, Sukkur in F.C. Suit No. 5/1982 and remand the suit to the trial Court with the direction to proceed with the same in accordance with law. However, there will be no order as to costs. M.B.A./A-971/K Order accordingly.