1991CLC209 (PLP)

For the purposes of this second civil appeal filed under section 100, C.P.C. the following statement of facts would suffice.

2. Mohammad Achar, predecessor of the respondents was brother of one Basar (defendant No.4 m Civil Suit No. 189 of 1966). Mst. Bhanul (defendant No.3 in Civil Suit No. 189 of 1966)'as the wife of said Basar. Muhammad Achar and Basar had jointly owned a house bearing C.S. No. 241, situated in Khairpur. This house was inherited by both the brothers from their father Safar. The parties resided in separate rooms with a common courtyard. The said Basar had gifted half of the share in this house to his wife Mst. Bhanul. On 5‑9‑1966 Basar and his wife Mst. Bhanul sold the portion in their possession to Mumtaz Hussain, predecessor of appellants Nos.l (i), (ii), (iii), (iv) and (v) and Pir Bux, appellant No.2, through a registered Bald‑deed for an ostensible consideration of Rs.3,500 though a sum of Rs.2,000 was actually paid. On 10‑9‑1966 Muhammad Achar came to know about this transaction and immediately thereafter he made `Talab e‑Mowasibat' (demand of jumping) followed by `Talab‑e‑Ishhad' (demand with invocation of witnesses), but with no result. On 28‑11‑1966, Muhammad Achar filed a suit against Mumtaz Hussain, Pir Bux, Mst. Bhanul and Basar for pre emption in the Court of Civil Judge, Khairpur. The suit was contested by all the defendants who controverted the allegations based on facts. Basar and Mst. Bhanul claimed themselves to be 'Shia' by faith and they disputed the fight of Muhammad Achar for pre‑emption. The making of demands in accordance with law was also questioned.

3. The parties went to trial on the following issues:‑‑ (1) Whether the suit is not maintainable according to law? (2) Whether the suit is time‑barred? (3) Whether the plaintiff is pre‑emptor of the premises in suit? (4) Whether the amount of Rs.3,500 was the real consideration paid by defendants of the suit property? (5) Whether the demands were made by the plaintiff according to law? (6) What should the decree be?

4. Muhammad Achar examined himself (P.W‑1) Kalandar Bux (P.W‑2), and Kirir (P.W‑3), while the defendants (now appellants) examined Syed Qaim Ali Shah, Advocate (D.W‑1) Muhammad Usman (D.W.‑2), Basar Khan (D.W‑3) Muhammad Alim (D.W‑4), and Gul Muhammad (D.W‑5).

5. On the assessment of evidence both oral as well as documentary, the learned Civil Judge, Khairpur decided almost all the issues against the appellants and decreed the suit filed by Muhammad Achar vide judgment dated 23‑6‑1969. The appellants challenged the judgment and decree passed by Civil Judge, Khairpur before District Judge, Khairpur in Civil Appeal No.75 of 1969, which was dismissed by learned District Judge, Khairpur vide judgment dated 14‑10‑1972. It is in these circumstances that IInd Civil Appeal No.55 of 1973 was filed before the principal seat, which on transfer was re‑numbered as Ilnd Civil Appeal No.5 of 1983.

6. I have heard Mr. Kadir Bux Memon, learned counsel for appellants and Mr. Gul Bahar Korai, learned counsel for respondents. I have also gone through the record of this case carefully.

7. There is concurrent finding of the Courts below on almost all the issues. Ordinarily, a finding of fact cannot be, disturbed in a second appeal. The cases reported as Fateh Muhammad, repretented by his legal heirs v. Suba Khan 1988 C L C 1520, Masud Sarwar v. Mst. Farah Deeba 1988 C L C 1546, Muhammad Akram v. Syed Imrao Ali Shah 1988 C L C 2228, and Shah Muhammad v. Sardar Habibullah Khan and others 1998 S C M R 72, which are cited on behalf of respondents are clear on this point, but in all these cases the findings on question of fact were supported by evidence on record and were based on proper and legitimate conclusions. A finding of fact is open to review in a second appeal if it is based on no evidence or where it is in utter disregard of the evidence or where the conclusion of fact is not warranted by the facts, on which it is based. In Monajal Huq v. Shafiullah and another, reported in P L D 1964 Dacca 640, it was held that where finding of fact is based on no evidence, the same is not binding in second appeal. The case of Luqman v. Allah Diwaya and others reported in P L D 1967 Pesh. 166, is again relevant on this point. At page 171, it was observed:‑‑ "A decision of a Court must, in law, be based on the evidence, oral and documentary, legally adduced in the case. A Court will, therefore, be committing an error of law, if it bases its decision on no evidence at all, and on mere surmises and conjectures. Note 13 to section 100, C.P.C., runs in the following words:‑‑ "A Court will therefore be committing an error of law‑‑ (1) if it bases its decision on no evidence at all, and on mere surmises and conjectures, (2) if it bases its decision on irrelevant and inadmissible evidence as such evidence is no legal evidence, (3) if it misreads the evidence, i.e., assumes certain evidence to exist where there is none or vice versa, (4) if it disregards or fails to consider material evidence in arriving at the conclusion."

8. The main controversy between the parties centres round the sect of the vendors, viz. Basar and his wife Mst. Bhanul. According to Basar (D.W.3) he is 'Shia' by sect and so his brother Muhammad Achar, predecessor of the respondents. The learned Civil Judge rejected the evidence of Basar (D.W.3) to this effect mainly on the ground that he was not able to tell the difference between a Sunni KALIMA and 'Shia' KALIMA, and also failed to give the exact numb‑,r of IMMAMS. This view found favour with the learned District Judge who disbelieved the version of Basar (D.W.3) for the following reasons:‑ "The plaintiff/respondent No.1 has been held by the learned Civil Judge to be a Sunni and so also Basar and Mst. Bhanul. Basar had appeared in evidence and pleaded that lie is a Shia. But he could not even tell the basic principles of Shias regarding number of Imams and Kalmas as stated by the learned Civil Judge. It was further rightly held that Basar was not proved to be a Shia but had taken the plea only for the purpose of defeating the title of his brother. Again if the property is held to be of Mst. Bhanul the wife of Basar then Mst. Bhanul should have appeared in the witness‑box to prove her sect. But she did not appear in evidence. In fact she did not even file a separate written statement. Simply a statement was given on her behalf adopting the written statement filed by her husband Basar. Hence if Mst. Bhanul is taken to be the owner of the house exclusively then Achar will be pre‑emptor of second and third degree and if Basar is also taken to be one of the owner than Achar in the capacity of co‑sharer will be a pre‑emptor of the first degree. The learned Civil Judge has, therefore, rightly decided this point in favour of the pre‑emptor."

9. Any person who professes Islam is a Muslim. The Muslims are again divided in two sects, viz. `Sunni' and `Shia'. Each sect is governed by its own laws. The sects can be renounced by a Muslim, either male or female at any time after attaining the puberty. It, therefore, follows that due credence should be given to the testimony of a person who claims to profess a particular sect and the Courts should not start with any presumption against such person. Basar (P.W‑3) was the only person to speak about the sect to which he belonged and a third person cannot arrogate upon himself the right to determine the faith of other. This view was in fact taken by Ajmal Mian, J (as he then was) in the case of Muhammad Saeed v. Mst. Hajiani Noor Bai and others, reported in 1983 C L C 1883. The grounds which prevailed upon the Courts below for rejecting the evidence of Basar (D.W‑3) on this point were both feeble and faint and I am constrained to take a contrary view.

10. There is marked distinction between `Sunni' and 'Shia' law in respect of I pre‑emption. The `Shia' law recognises the right of pre‑emption in the case of co‑sharers and that too if the number does not exceed two. Unlike the Sunnis, the p Shia school does not recognize the right on the ground of `Shaft‑i‑Khalit' (a participator in immunities and appendages), and `Shaft‑i‑Jar' (owners of adjoining immovable property). This distinction was drawn by a Division Banch of the erstwhile High Court of West Pakistan in the case of Allah Bux v. Jano and others, reported in P L D 1962 Karachi 317, wherein following observations were made:‑ "The respondents claim the right on account of ownership of adjoining land and also on the ground that they had a right to irrigate their land by the same watercourse by which the land in dispute was irrigated. No such right is recognised by the Shia law, though the Sunni Law recognises it. If, therefore, the case is governed by the Shia Law the respondents were not entitled to a decree. They could succeed only if the case is governed by Sunni Law."

11. It is established from the record that Basar, who was one of the vendors was a 'Shia' by faith and consequently the right of pre‑emption will be governed b the 'Shia' law. The above‑referred authority of, a Division Bench has resolved this question also in the following words:‑ "The position has been summed up by another author, Babu Ram Verma, in his Muhammadan Law in India and Pakistan, 3rd Edition, page 544, in the following words:‑ "The sect‑law applicable to pre‑emption cases shall be as follows:‑ (i) Where the vendor and the pre‑emptor are both of one sect (either Sunni or Shia) the law of their sect shall apply. (2) If the pre‑emptor is a Shia and the vendor is a Sunni, the Shia Law shall apply. (3) If the pre‑emptor is a Sunni and the vendor is a Shia, the Shia Law shall apply."

12. The perusal of record also shows that the disputed house was separate in all respects. It was divided by a partition wall and has a separate entrance. The partition wall was demolished by Muhammad Achar and the F.I.R. to this effect dated 25‑10‑1966 is on record (Ex.48). The evidence of Muhammad Usman (P.W.‑2) who was Chairman of the Ward further makes this position clear. Besides the above evidence this fact of private partition is established from the f documentary evidence (Exhs.49, 50 and 51). The first two documents relate to the permission for opening of door in the year 1961 and (Ex.51) is an extract of assessment register in which a separate number was assigned to the said house. No doubt Muhammad Achar was a co‑sharer in the disputed house at the initial stage, but subsequently he had agreed for a private partition for all practical purposes. The house was no more a joint property. The case of Shah Hussain v.Abdullah Khan and others, reported in P L D 1967 Peshawar 284, which although relates to N.‑W.F.P. Pre‑emption Act, 1950, is relevant in the circumstances of the present case. At page 288 it was held:‑ "The right of pre‑emption is not purely a personal right but is available to the pre‑emptor as a co‑sharer and is lost with the loss of ownership by transfer. The object of the right of pre‑emption appears to be that. The pre‑emptor should have tangible objective right in the property which affords him basis for the exercise of the right of 'pre‑emption and untangible subjective or paper right does not give the pre‑emptor the right to assail the transaction of sale."

13. Even if it is accepted for arguments sake that the said Muhammad Acha; will be pre‑emptor of first degree, being the co‑sharer, still he had lost the right by not making proper demands in accordance with law. It is the case of Muhammad Achar, predecessor of respondents that he had learnt about this sale for the first time when he met Kalandar Bux and Kirir at the Karbala near Khairpur. Both Kalandar Bus (P.W. 2) and Kirir (P.W.3) support Muhammad Achar in this behalf and they have testified that Muhammad Achar expressed that he would like to purchase this house for the same consideration. The evidence of these witnesses further shows that Muhammad Achar made second demand, viz. `Talab‑e‑Ishhad' in their presence to Basar when his wife was also there.

14. It is essential for claiming the right of pre‑emption under Muslim Law that there must be clear proof of the observance of all the formalities. The essential requirements of `Talab‑e‑Ishhad' were examined in Jadal v. Abdul Majeed and 2 others, reported in P L D 1978 Kar. 732, and it was observed: "The essential requirements of Talab‑e‑Ishhad thus would appear to be:‑ (a) that the Talab should be made against the seller, if the property sold is still in his possession, or against the purchaser, or upon the property sold; (b) that the Talab should be made in the presence of not less than 2 witnesses (see section 236, Mulla's Principles of Mohomedan Law, 1977 Pakistan Edition); (c) that while making Talab‑e‑Ishhad, reference is required to be made to the Talab‑e‑Mawasibat, as also pointed out in Muhammad Luqman v. Amir Ali P L D 1969 Dacca 64.

15. While making the `Talab‑e‑Ishhad' a reference is required to be made about the Talab‑e‑Mowasibat'. The evidence of Muhammad Achar (P.W.1), I Kalandar Bux (P.W.2) and Kirir (P.W.3) is silent about the reference of `Talab‑e- Mowasibat' while making `Talab‑e‑Ishhad'. The case of Loung represented by his Legal Heirs v. Dur Muhammad and another, reported in P L D 1987 Kar. 515, supports the above view in the following words:‑‑ "The consistent view of this Court as well as of the other superior Courts, as pointed earlier, has been that at the time of making second demand non‑reference to the first demand was fatal to the case of the claimant of the right of pre‑emption." presence of Mst. Bhanul only but he has not uttered a word that demand was also made to her. Kirir (P.W.3) has testified to this effect in the following words:‑ "We asked Basar to give the house to Achar, but he refused. Achar also requested him to give him the house as he would pay the money, but Basar told him that he had sold for Rs.3,500."

17. In order to invoke the provisions of Muslim Law while claiming pre emption the formalities prescribed by law must be strictly complied with and the J doubt, if any, in respect of `Talabs' is to be resolved in favour of the vendee.

18. Lastly, it was half‑heartedly suggested on behalf of appellants that Muhammad Achar had himself refused to purchase this property when offered to him for sale. The evidence of Syed Qaim Ali Shah. Advocate (D:W.1) lends support to this assertion. He speaks about a FAISLA made by him, before the actual sale. Paragraphs 242 and 243 of Mulla's Mahomedan Law, Pakistan Edition (1983) are self‑explanatory The right of pre‑emption is not lost by refusal to buy before sale or even by previous notice of sale, prior to actual sale.

19. For the foregoing reasons the judgments and decrees of the lower Courts are liable to be set aside and they are accordingly reversed. The suit filed by Muhammad Achar is dismissed and the appeal is allowed with no order as costs. AA./M‑1214/K Appeal accepted.