1984 PLP 33 (CLC)

(7) To what relief, the plaintiffs are entitled (8) What should the decree be ? In support of the suit respondents Nos. 1 and 2 examined themselves and also examined the alleged two witnesses namely P. W. Abdul Khalik and P. W. Khuda Bux. On the other hand present appellants examined appellant No. 1 D.W. 1 Karim Bux and two witnesses, namely D. W, Abdul Sattar and D. W. Muhammad Usman. The learned trial Court after hearing the parties decreed the suit. The appellants being aggrieved by the above judgment decree have filed the present First Appeal.

2. In support of the above appeal Mr. Ghulam Ali Khokhar learned counsel for the appellants has urged as follows :‑ (i) That in fact the respondents have not made any demand for exercising right of pre‑emption. (ii) That the alleged demands made were not in accordance with law. (iii) That the appellants' right of pre‑emption was superior to the alleged right of pre‑emption of respondents Nos. 1 and

2. On the other hand Mr. Rehman Ali Naqvi, learned counsel for the, respondents has urged as follows (i) That in fact the demands were made in accordance with law. (ii) That the appellant's alleged right of pre‑emption was not superior to respondents Nos. 1 and 2's right.

3. Mr. Khokhar in support of his above first and second contentions has invited my attention to the testimony of respondents Nos. 1 and 2 and their witnesses and also to the evidence of the appe4lants. It has been vehemently urged by him that the version given by respondents Nos. 1 and 2 is highly improbable and in fact they failed to prove that they have made the two demands in accordance with law. He has also invited my attention to the finding recorded by the learned trial Court to the effect that while making second demand, namely Talb‑e‑Ishhad no reference to the first demand Talb‑e‑Mowasibat was made. The question which re quire consideration are, whether respondents Nos. 1 and 2 made two required Talbs and if so whether the same were in accordance with law. From the reading of the testimony of respondents Nos. 1 and 2 and their witnesses, it is evident that except respondent No. 1 neither respondent No. 2 nor their two witnesses have made any reference to the fact that respondents Nos. 1 and 2 while making Talab‑e‑Ishhad had made reference to Talab‑e‑Mowasibat. In this view of the matter the learned trial Court could conclude that no reference to Talab‑e‑Mowasibat was lade while making Talab‑e‑Ishhad. However, the learned trial Court has concluded that in spite of absence of the above reference, the two Talabs were in accordance with law. Mr. Khokhar has vehemently urged that in the absence of any reference of Talab‑e‑Mowasibat while making Talab‑e -Ishhad, there could not have been any valid Talab‑e‑Ishhad. In support of the above contention he has referred to the case of Muhammad Lokman Mondal v. Amir Ali Mondal and others (P L D 1969',Dacca 64) and the case of Jadal v. Abdul Majid and 2 others (P L D 1978 Kar. 732). In the first case a learned Single Judge of the Dacca High Court has held that omission to make express reference of Talab‑i‑Mowasibat at the time of making Talab‑i‑Ishhad will be fatal to a claim for pre‑emption. The same view found favour with Z.A. Channa, J of this Court in the above Karachi case of 1978. On the other hand Mr. Rehman Ali Naqvi learned counsel for the respondents has urged that the relevant case on the point in issue is the case of Abdul Majtd and others v. Qamaruddin and others (A I R 1945 All. 375) in which Bennett, J, sitting S.D. took the view that when both the vendor and vendee and the witnesses who are specifically invoked, have all been present when the two demands are made and there is no delay in giving information to the vendor and vendees, it is unnecessary to refer at the second demand expressly to the Talab‑i‑Mowasibat and that the second demand is supererogatory. In the instant case respondents Nos. 1 and 2 and their two witnesses have deposed that both the demands were made simultaneously in their presence and therefore, the learned trial Court could rely upon the above Allahabad Case of 1945 provided the version given by the respondents Nos. 1 and 2 and their witnesses is to be believ ed. I am also inclined to hold that if Talab‑i‑Mowasibat and Talab‑i- Ishbad are made simultaneously at one place and in the presence of the witnesses, who were invited to witness the exercise of right of pre‑emption by the pre‑emptor, the fact that no reference is made to Talab‑i‑Mowasibat while making Talab‑i‑Ishbad expressly, will not be fatal to suit for pre‑emption. The two cases relied upon by Mr. Khokha referred to hereinabove are distinguishable inasmuch as in the aforesaid cases Talab‑i‑Mowasibat and Talab‑i‑Ishhad were not made simultaneously at one place in the presence of two witnesses.

4. However, basic question remains, whether the version given by respondents Nos. 1 and 2 and their witnesses as to the mode of making two Talabs is probable and believeable. In this regard it may be per tinent to quote hereinabelow the relevant portions of the testimony of respondents Nos. 1 and 2 and their witnesses, which reads as follows;

"Mushtaq All Shah, Respondent No. l.

‑On 18th September, 1977 I alongwith my brother Mumtaz Ali had left our house and were going towards tine shop of Mumtaz Ali Shah. We saw that the Tam bells of defendant No. 1 which was situated in his property the defendants Nos. 1 to 4 were standing. We also went inside the Tambella of the defendant No. 1 P.W. Abdul Khalik was standing outside the Tambella. P.W. Haji Khuda Bux was' sitting on the stop of my brother which was adjacent to the Tambella of de fendant No.

1. As soon as we entered into the Tambella of defen dant No. 1 P. W. Abdul Khalik and Haji Khuda Bux also followed us. The defendant No. 1 has informed us that he had sold his property bearing C.S: No. D‑1519/6 to the defendants 2 to 4 for Rs. 50,

000. He had further told us that the transaction had taken place on 13th September, 1977 and the same has been submitted before the Sub‑Registrar for registration purpose. After bearing the above facts I and my brother imme diately jumped from our place and told the defendant No. 1 that we had the right of pre‑emption over the property and we demanded our said right from the defendant No.

1. Immediately after our first demand we in presence of two witnesses namely Abdul Khalik and Haj Khuda Bux told the defendant Nos. 1 to 4 that we are ready to purchase the property for Rs. 50,000 and we had demanded our right of preemption from him. We had told our witnesses that they should be our witnesses to the above facts and we had already demanded our right and we were demanding our right secondly. But the defendants Nos. 1 to 4 refused to sell the property to us. I produce the certified true copy of the sale deed as Exh. 38." "Mumtaz Ali Shah, Respondent No. 2.‑On 18th September, 1977 at about 6‑0 p.m. I alongwith my brother Mushtaq Ali Shah left our house and went to our shop. We found the defendants No. 1 to 4 were standing in the Tambella of the defendant No. 1 situated in the property bearing C.S. No. 1519/6. 1 and my brother went inside the godown as it was opened. P.W. Abdul Khalik was standing outside the Tambella. P.W. Khuda Bux my customer was sitting in my shop. Both the witnesses had also entered into a Tambella alongwith us. The defendant No. 1 had informed us that he had sold the property bearing No. 1519/6 to the defen dants Nos. 2 to 4 for Rs. 50,

000. He had further informed us that the sale‑deed has been registered on 13th September, 1977. On hearing this I and my brother jumped from our place and told the defendants that we demand our right of pre‑emption.. Again for second time in presence of witnesses Abdul Khalik and Haji Khuda Bux we demanded our right of pre‑emption. We had also told them that we were ready to pay the price. We had told our witnesses that they should be our witnesses as we were first to demand the property but the defendants Nos. 1 to 4 refused to sell the property to us." "Abdul Khalik, P.W.‑On 18th September, 1977 at about 6‑0 p. m. I was standing in front of the shop of Mumtaz Ali plaintiff No.

2. P.W. Haji Khuda Bux was sitting in the shop of plaintiff No.

2. The defendants Nos. 2 and 3 were inside the Tambella of defendant No. 1 at the said time. I also saw at the above time plaintiffs Nos. I and 2 coming from their house towards the shop of plaintiff No.

2. As they found the Tambella of defendant No. 1 opened, therefore, the plaintiffs Nos. I and 2 went inside the Tambella. I and P.W. Haji Khuda Bux followed the plaintiff in the Tambella." "Khuda Bux, P.W.‑On 18th September, 1977 at about 6‑0 p. m. I was sitting at the shop of plaintiff No. 2. 1 saw the defendants Nos. 1 to 4 had opened their Tambella which was adjoining to the shop and entered into the shop. After some time I saw both the plaintiffs were coming from their house towards the shop. As soon as they reached the Tambella of defendant No. 1 they found it opened and they entered into it. P.W. Abdul Khalik was stand ing outside the Tambella. It may be noticed that according to the above testimony the above two witnesses entered into Tambella even without being asked by respon dents Nos. 1 and

2. In my view, this version seems to be highly improbable. These two witnesses had no reason whatsoever to enter into Tambella of appellants without being asked by respondents Nos. 1 and

2. They could not have any information in advance that respondents Nos. 1 and 2 were entering into appellant's Tambella for the purpose of exercis ing right of pre‑emption. According to respondents Nos. 1 and 2 they had first time discovered about the sale transaction when they entered into appellant's Tambella and found the appellants alongwith respondent No. 3 and inquired from them. Strictly speaking above 1945 Allababad case is not applicable to the instant case as in the above case Bennett, J has clearly observed that both the demands should be made in the pre sence of the vendor and the vendee and in the presence of witnesses who are specifically invoked. According to the above two witnesses of the respondents, they were not asked by respondents Nos. 1 and 2 to be wit nesses. I am, therefore, inclined to hold that respondents Nos. 1 and 2 have failed to prove that they have made two demands in accordance with law. The presence of the two witnesses and the fact that they had gone to the Tambella and found it open on 18th September, 1977 and discovered about the sale is belied from the other evidence on record. It may be pointed out that according to the appellants and their witnesses, they were put into possession of the suit house on 14tb August, 1977. How ever, in the cross‑examination the respondents Nos. 1 and 2 have suggest ed to appellant No. 1 and to their witnesses that in fact appellants were put into possession on 13th September, 1977 i.e. on the date when the sale‑deed was executed and registered before the Sub‑Registrar in the instant case. This suggestion in the cross‑examination made by the Advocate for respondents Nos. 1 and 2 amounts to an admission on the part of the above respondents that in any case appellants were in posses sion of the house in question since 13th September, 1977. However, Mr. Rehman Ali Naqvi attempted to explain this admission by saying that probably it was a typing error and 13th September, 1977 has been typed instead of 18th September, 1977 in the record of the trial Court. I am not impressed by the above explanation. The question put by the learned counsel for respondents Nos. 1 and 2 to appellant No. 1 and to his two witnesses that they were not in possession of the house in suit prior to 13th September, 1977 seems to be a pertinent question in context with the fact that appellants were claiming to have been given possession on 14th August, 1977, whereas the sale‑deed was executed and registered on 13th September, 1977. It is a normal practice that the possession of the subject‑matter of the sale‑deed is handed over either before the date of execution and registration of the sale‑deed or on the same day i.e. on the date of execution and registration of a sale‑deed. The above admission on the part of respondents Nos. 1 and 2 clearly indicates that in any case they had the knowledge of the fact that appel lants were put into possession of the house on 13th September, 1977. In my view, the respondents Nos. l and 2 who were living in the adjacent house, as a prudent man, would have inquired from the new occupants as to the reason of their occupation. The version that they found Tambella open on 18th September, 1977 and found that appellants and respondent No. 3 were present, viewed with the background of the above fact does not inspire confidence. Furthermore, even if it is to be con ceded that in fact respondents Nos. I and 2 made demand on 18th Sep tember, 1977 though they discovered on 13th September, 1977 that appellants were put into possession of the suit house, their demand on 18th September, would not be valid.

5. It may also be pertinent to point out that respondents Nos. 1 and 2 bad claimed the right of pre‑emption in respect of the suit house on the basis of joint ownership in respect of C. S. Nos. 1519/5 and 1519/3 purchased by them jointly under a registered sale‑deed, dated 29th August, 1977 i.e. respondents Nos. 1 and 2 had purchased the above two survey numbers hardly two weeks prior or the execution and registration of sale‑deed in favour of appellants by respondent No.

3. It is most probable that respondents Nos. 1 and 2 must have been busy in finalizing their own transaction instead of lodging any claim for pre‑emption. It may also be pertinent to refer to the Supreme Court of Pakistan case, namely, Abdul Wahid v. Mst. Zamrut (PLD1967SC153) in which the Hon'ble Supreme Court of Pakistan was pleased to observe as follows; "Pre‑emption has been described in authoritative judgments for a great many years as a predatory right, and while it must be allowed, where the necessary conditions are satisfied, the Court have frequently given their approval to certain modes by which title can be acquired, which place difficulties in the way of pre‑emptors. There is no duty upon persons, who are parties to an intended pre‑emptible transaction to publish their intention to all pre‑emp tors. They may use whatever means and methods are allowed by law to carry out their intention and one of the means allowed to the parties by law for making an effective transfer of title in im movable property, is by the certain of an encumbrance in the first instance, and later at a time suitable to the parties, to dispose of the equity of redemption in favour of the mortgage. As between the parties to the transaction this is perfectly effective and perfectly legitimate. If this method is one which imposes a higher degree of vigilance on pre‑emptor than the method of an outright sale might entail that is not a circumstance for which the parties to the trans fer can be penalised in any way." Though there is no duty cast upon a person purchasing an immovable property, which may be pre‑emptible to make publicity but in the instant case there was certain publicity in any case according to respondents Nos. 1 and 2's own showing from 13th September, 1977 when admittedly appellants were put into possession.

6. In my view, it is not necessary to examine other contentions of Mr. Khokhar as on the question of fact I have held that respondents Nos. 1 and 2 have failed to prove that they had made valid Talabs in accordance with law.

7. For the aforesaid reasons the appeal is allowed with no order as to costs and the judgment/decree of the learned trial Court is set aside. These are the detailed reasons in pursuance of short order of even dated. M.Y.H. Appeal allowed.