Pre-Emption

The sole issue was whether the respondent-plaintiff (pre-emptor) proved immediate declaration (Talb-i-Muwathibat) as required by law

Pre-emptor to prove execution of talbs

Onus

Doubt in execution of talbs

Effect

Any doubt regarding proper performance of talbs must be resolved in favour of the vendee

The case concerned a parcel of land which was sold to the petitioners/vendees through a registered sale deed

The respondent/plaintiff claimed a superior right of pre-emption, alleging that he had performed the required talbs (formal declarations) and stated that upon learning of the sale at 7:00 a.m. on 7 June 2001 from "UD" in the presence of another witness, he made a declaration to exercise his right

The courts below accepted his version and decreed the suit, but the Supreme Court examined whether the Talb-i-Muwathibat i.e. the immediate demand, was duly and validly performed by the respondent/plaintiff (pre-emptor) so as to sustain his right of pre-emption

Held: The onus was on the respondent-plaintiff (pre-emptor) to substantiate his claims by producing compelling evidence that demonstrated the completion of Talb-i-Muwathibat

Statement of witness (informer) produced by plaintiff/pre-emptor suggested that enough time had passed between when the witness (informer) first learnt of the sale and when he relayed this information to the respondent-plaintiff (pre-emptor)

Consequently, it undermined the assertion that the respondent-plaintiff (pre-emptor) made the declaration at the stated time

This doubt created uncertainty on whether the respondent-plaintiff (pre-emptor) truly executed the Talb-i-Muwathibat as claimed

Respondent-plaintiff (pre-emptor) upon gaining awareness of the sale, did not immediately formally declared his intention to exercise his right of pre-emption, but merely expressed a desire to do so

This was not sufficient to meet the requirements of Section 13 of the Punjab Pre-emption Act of 1991

If any doubt arose regarding the execution of the talbs, the benefit of that doubt must favour the vendee

Given these circumstances, the respondent-plaintiff (pre-emptor) had failed to prove the execution of Talb-i-Muwathibat

The judgments and decrees rendered by the courts below were set aside, and the suit brought forth by the respondent-plaintiff (pre-emptor) was dismissed

Petition was converted into an appeal and allowed, in circumstances.

The dispute arose over a parcel of land measuring 24 kanals and 3 marlas situated in Dera Ismail Khan, where "MT", the owner, executed a mutation reflecting an exchange of land with the defendant, allegedly for better management

The plaintiff, claiming a superior right of pre-emption, instituted a suit asserting that the transaction, though recorded as an exchange, was in fact a sale

Trial Court treated the mutation as a sale and decreed that both parties, being co-owners in the same khata, were entitled to equal pre-emption rights

The appellate and revisional courts upheld this view

The legal issue requiring determination before the Supreme Court was "whether the transaction through mutation constituted a genuine exchange or a sale disguised as an exchange, thereby determining the applicability of the right of pre-emption under Section 5 of the KPK Pre-emption Act, 1987"?

Held: Courts below incorrectly surmised that the defendant failed to provide sufficient proof that the transaction was an exchange

The onus of proof primarily lay with the plaintiff (pre-emptor), who asserted that the recorded mutation represented a sale rather than an exchange

The mere failure of the defendant to establish the transaction as a legitimate and bona fide exchange did not automatically validate the conclusion that it was a sale

The absence of any credible proof indicating payment of price or a promise thereof led to the conclusion that the transaction documented in the mutation was an exchange rather than the sale claimed by the plaintiff (pre-emptor)

Courts below significantly misinterpreted the evidence presented and they also misapplied the relevant legal principles

According to Section 5 of the Act, the right of pre-emption was contingent upon the occurrence of a sale; this right did not extend to transactions such as gifts or exchanges

In the present case, the plaintiff (pre-emptor) failed to demonstrate that the transaction documented in mutation constituted a sale

Consequently, the plaintiff (pre-emptor) was not entitled to the decree he sought

Judgments and decrees issued by the courts below were legally untenable and same were set aside

Petitions were converted into appeals and petition brought forth by the plaintiff (pre-emptor) was dismissed and one brought forth by the defendant was allowed.

According to Section 5 of the Act, a right of pre-emption arises in the case of a sale, which, as defined in Section 2(d) of the Act, refers to a permanent transfer of ownership of immovable property in exchange for valuable consideration

However, this definition explicitly excludes situations where agricultural lands are exchanged for purposes of better management

While the law of pre-emption can be evaded through lawful means, there is nothing inherently illegal about executing an exchange when a vendee or buyer fears that a straightforward sale in his favour might be pre-empted.

Petitioner contended that correction would not cause prejudice to respondents; that contents of plaint supported petitioner's version regarding error being accidental; that Trial Court's order was not a "case decided"

Held, that if an interim order was a final order relating to a part of proceedings/issue and having effect on merits of the case, such an order could be corrected in revisional jurisdiction

Court had general power to amend any defect/error in any proceedings in a suit at any time to determine real question/issue

Correction of error/mistake would depend on nature of mistake/error as per the facts of each case

Mentioning of particulars as to date, time and place of making talb of pre-emption was essential for substantiating such right and failure would be fatal and pre-emptor would face the consequence of omission

Such omission if allowed to be corrected/amended it would change the nature/complexion of the suit

Petitioner did not choose to seek correction until the said facts was not specifically denied by the respondents in the written statements, and that too for correction of time as "12 PM" instead of "12:30 AM" with an object to withdraw the admission made in the plaint and wipe out the defence taken by the respondent, hence not with bona fide intention

Constitutional petition was dismissed accordingly.

Petitioners/ defendants filed revision petition before High Court which was dismissed for non-prosecution vide order dated 26.10.2000

Respondent filed execution petition and during its pendency he filed application on 08.12.2020 before the Trial Court claiming that since the revision petition had been dismissed, stay order issued on 20.07.2000 stood infructuous

Executing Court issued warrant of possession and concerned revenue officials completed the proceedings in compliance; report was submitted to Tehsildar; Assistant Commissioner verified the said proceedings; report was presented before executing Court and possession of the land was handed over to the decree holders

Petitioners/ defendants had filed application on 23.04.2001 for restoration of civil revision which was dismissed due to non-prosecution; vide order dated 31.01.2006 notice was issued to respondents (legal heirs of real respondent); on 27.08.2002 legal counsel appeared on behalf of the respondents and thereafter the case was not fixed, rather it was fixed on 22.06.2011 and on the said date counsel of the petitioners appeared and main civil revision of the petitioners was restored to its original number

During the proceedings of civil revision the respondents were proceeded against ex-parte

On 24.04.2012 High Court allowed the civil revision ex-parte and set-aside judgments/decrees passed by both the courts below and dismissed the respondent's suit with costs throughout

During the period in between dismissal of civil revision due to non-prosecution and the restoration of the same, the petitioners/vendees filed application before Trial Court for withdrawal of pre-emption amount which was allowed and same was withdrawn and received by the petitioners according to their respective shares

Petitioners remained silent for long time and then filed an applications for restoration of possession on 24.04.2015 and thereafter also filed the applications for re-depositing the sale consideration amount which was withdrawn by them earlier

Respondents / pre-emptors filed applications before High Court seeking rehearing of main civil revision wherein respondent was proceeded against ex-parte

High Court dismissed such applications on 05.05.2020 holding that the same had been filed in year 2015 not being within limitation period of 60 days from 24.04.2012

High Court also dismissed the application filed by the petitioners regarding the deposit of sale consideration amount which they had withdrawn from the learned Trial Court and application for restoration of possession was also turned down

Respondents assailed the orders of High Court in Supreme Court which remanded the case on 22.09.2020

Petitioners/ judgment debtors filed application for restoration of civil revision after six months of the dismissal of the civil revision and after four months of the proceedings of warrant of possession

In the said application petitioners did not mention anything regarding the proceedings of warrant of possession of the suit land

Record showed that they were present in such proceedings

Proceedings of the warrant of possession were completed by the revenue officials in accordance with law

Petitioners had not revealed the record of the application filed by them before the Civil Court for withdrawal of pre-emption amount

Conduct of petitioners/vendees showed that they had not come to the Court with clean hands

Relief (discretionary or otherwise) would not be available to a person who came to court with unclean hands

Application for rehearing of civil revision should be converted into the application under S.12(2) of Civil Procedure Code, 1908 because law is based on equity, the discretionary relief would be available to a person who comes to court with clean hands

Petitioners had impliedly accepted the claim of the pre-emptors and withdrew the pre-emption amount from the court and in that regard their application for restoration of civil revision had become infructuous

Applications filed by the respondents for re-hearing of civil revision were converted into the application under S.12(2) of C.P.C. read with S.151 of C.P.C. under the constitutional jurisdiction of High Court which were accepted

Constitutional petitions were disposed of accordingly.

Suit for possession through pre-emption filed by predecessor of appellant/plaintiff claiming his preferential right being son of vendor, as his heir, co-sharer in joint khata, khewat holder in mauza, was remanded by High Court

Respondents controverted the suit on many legal/ factual objections including that suit was benami/collusive; that plaintiff was present at time of bargain/execution of sale deed

In second round of litigation suit was decreed by Trial Court but appeal was allowed by appellate Court

Validity

Appellate Court dismissed the suit on ground that plaintiff was estopped from filing suit, observing the fact that plaintiff did neither file any replication to controvert the specific assertion of respondents/ defendants that plaintiff was present at time of bargain/ execution of sale nor the defendant was cross-examined on such point; that relationship between vendor and appellant (being father and son) was cordial; that vendor being an aged man was dependent on appellant; that plaintiff failed to cross-examine crucial portions of statements of defendants' witnesses

Evidence of defendants remained uncrossed/unchallenged/un-rebutted

Conduct of appellant/pre-emptor suggested the ill-motive behind the suit

Mala fide on part of pre-emptor was apparent

Suit of appellant/ pre-emptor was liable to be dismissed on ground of limitation and barred by law to the extent of one defendant

Appellate Court had rightly accepted respondent's appeal and dismissed the suit

Appeal was dismissed accordingly.

Omission on part of the plaintiff to implead one of the vendees, defendant was impleaded after remand (i.e. in second round of litigation) through amended plaint, as defendant within prescribed period of limitation, did not protect him to give benefit of bona fide mistake

Appellant's suit to the extent of such defendant/vendee was hit by the O.I., R.10(5) of Civil Procedure Code, 1908 read with S.22 of Limitation Act, 1908.

Onus probandi was upon the pre-emptor to prove that he, besides being owner of adjoining area, was a participator in amenities and appendages of the sold land.

Petitioner contended that he deposited Rs.3,83,333/- as Zar-e-Soim keeping in view the sale price of Rs.11,50,000/- within time allowed by the Court

Validity

Required deposit of Zar-e-Soim was subject to the order of the Court,therefore, if the Court failed to pass an order to deposit Zar-e-Soim then the pre-emptor could not be penalized for such non-deposit

Trial Court wrongly calculated the 1/3rd of the sale price (Zar-e-Soim) as Rs.3,83,334/- instead of Rs.3,83,333.3333/

Court was only required to direct the plaintiff to deposit 1/3rd of sale price (Zar-e-Soim) and the Court was not bound to mention specific amount of Zar-e-Soim

Petitioner deposited less amount of Rs.1/- in the light of direction of the Trial Court and deposited less amount of 33 paisa in the light of S.24 of the Punjab Pre-emption Act, 1991

Such less deposit was very meager amount

Petitioner deposited deficient amount due to bona-fide mistake which would deserve serious/earnest/compensate consideration as the Courts were under obligation to decide the lis on merit rather as per technicalities

Petitioner made Zar-e-Soim round figure in a lesser side rather the greater side because paisas (coins) were not counted now a days and he was not guilty of contumacy

Revision petition was allowed accordingly.

If talb-i-mawathibat is not made immediately on acquiring knowledge of the sale then it will be deemed that the shaafi has foregone his right of pre-emption.

Right of pre-emption being a feeble right, the pre-emptor is to be put to strict proof as to the making and the observance of the requisite talbs.

Plaintiff had gone over to the suit shop with the intent to invoke the right of pre-emption as he had prior knowledge of the sale

Talb-i-mawathibat, in circumstances, could not be said to be a "jumping demand"

Impugned judgments and decrees did not call for interference

Revision application was dismissed.

Evidence for exercise of such right being oral was required to be direct and confidence inspiring and duly supported by the witnesses

Suit property was commercial and no right of pre-emption was enforceable with regard to such property

Vendee was not stranger for the plaintiff and on this score alone suit was liable to be dismissed

No right of pre-emption existed with regard to property situated in Cantonment area

Pre-emptor was bound to establish and prove the requirements of two demands i.e. Talb-i-Muwathibat (jumping demand) and Talb-i-Ishhad

Evidence of pre-emptor was not in line with his pleadings

Material contradictions with regard to acquiring knowledge of sale and performing Talb-i-Muwathibat and Talb-i-Ishhad were on record which could not be ignored

Pre-emptor had failed to prove the performance of Talb-i-Muwathibat and Talb-i-Ishhad in circumstances

Appellate Court had not committed any illegality while setting aside the judgment and decree passed by the Trial Court

Revision was dismissed in circumstances.

Counsel for the plaintiff stated that he had no objection if the petition for impleading of parties was allowed, but later on, before conclusion of the arguments, he retracted his admission and opposed the impleadment

Said conduct of the plaintiff, had shown his active connivance with the petitioners which was an abortive attempt on the part of the petitioners and the plaintiff to drag the legal heirs of defendant in the subject litigation

Petition was dismissed in circumstances.

Any rights or liabilities created under the Punjab Pre-emption Act 1913 could not survive past the date fixed in the case of Government of N.W.F.P v. Said Kamal Shah (PLD 1986 SC 360), namely 31.07.1986

Suit filed during the interregnum, commencing 01.08.1986 until 28.03.1990 [where-after the Punjab Pre-emption Ordinance (V of 1990) dated 29.03.1990 was enforced] the classic Islamic law governed the right of pre-emption

Hence, the rule of specification of particulars of Talb-i-Muwathibat under the classic Islamic law applied to a pre-emption suit filed during the interregnum period.

Suit for possession through pre-emption was decreed by the High Court in terms of a compromise to the extent of 16 kanals 13 marlas of land ("disputed land") in favour of pre-emptor

High Court directed that vendee would continue to own and hold possession of the remaining land measuring 14 kanals 10 marlas

On appeal the decree passed by the High Court was set aside by the Supreme Court

Review petition filed by the pre-emptor was also dismissed by the Supreme Court by finding that the decrees obtained by the pre-emptor were incompetently passed (by the High Court) and for such reason they could not be sustained

Pre-emptor had sold disputed land to different purchasers during pendency of litigation before the Supreme Court

Vendee filed an application before Trial Court for restitution of possession of disputed land, which was contested by the pre-emptor and the purchasers of disputed land

Validity

Held, that pre-emptor had taken possession of disputed land through warrant dakhal and mutation which was sanctioned on the basis of the judgment and decree of the High Court

Once the judgment and decree of the High Court had been set aside by the Supreme Court, the entire superstructure built thereon fell to the ground and the parties were restored to the same position as if no judgment and decree had been passed by the High Court

None of the purchasers mentioned the date of their purchase in their written reply before the Trial Court nor when they appeared as witnesses

Purchasers could not claim that they were bona fide purchasers without notice because they knew all along that litigation was pending between the pre-emptor and vendee

Principle of lis pendens was applicable to the present case and any person who purchased the land during pendency of the proceedings before the Supreme Court or raised construction thereon did so at his own risk and cost

Right, title and interest of vendee in disputed land stood accepted and recognized by the Supreme Court, therefore, he had a right to be placed in the same position as if no decree had been passed by the High Court

Petition for leave to appeal was dismissed accordingly.

Plaintiffs had not mentioned the exact date and time when they came to know about the factum of sale nor was there any mention of the date and time of performance of Talb-i-Muwathibat

Exact date and time of performance of Talb-i-Muwathibat must be clearly mentioned in the plaint which would be subject to confirmation by the witnesses

Talb-i-Muwathibat was not performed promptly and properly in the present case

Nothing was on record that plaintiffs had made a reference of Talb-i-Muwathibat before performance of Talb-i-lshhad which was a condition precedent

Trial Court should have considered such aspect of the case instead of decreeing the suit ex parte

Suit was decreed without properly appreciating the evidence by Trial Court which was an illegality

Impugned judgment and decree were not sustainable and set aside

Suit was dismissed.

Meaning.

Plaintiff was co-owner of 75% share in a survey and 25% of the survey belonged to defendants which they had inherited, who later on sold said 25 % to another person (defendant)

Plaintiff declared his intention to exercise his right of pre-emption by making Talb-i-Muwathibat and later Talb-e-Ishhad in presence of witnesses but did not produce any witnesses therefor

Plaintiff, after making Talbs, filed suit for pre-emption which was dismissed

Contention raised by plaintiff was that he having major share in said survey was Shafi-e-sharik and having made necessary demands/Talbs was entitled to pre-emption

Defendants took the plea that plaintiff, besides the present case, had filed four suits three for specific performance of contract and one for damages which were dismissed, and concurrent findings of courts below were not subject to interference in revision

Validity

Land owned by plaintiff was situated in boundary wall and there was no danger that any person buying adjacent land would cause any nuisance to him

Purchaser was also one of co-sharers and not a stranger who might cause inconvenience to other partners/co-sharers and it would not be proper and just to force a person to sell his property to neighbour rather than to his kith and kin

Plaintiff had not only claimed to have purchased suit land from its owners on basis of agreement to sell, but he had also filed the present suit for pre-emption, thereby admitting that suit land was validly sold by owners to purchaser

Demands (talbs) made by plaintiff were contrary and did not fulfill requirements of Talb-i-Muwathibat and Talb-i-Ishhad

Plaintiff was bent upon depriving defendants of small piece of land and had failed to show any misreading or non-reading of evidence

High Court dismissed petition for being devoid of merit.

Object and purpose of law of pre-emption is to prevent inconvenience, which may be caused to co-sharer/neighbourer of same land due to introduction of disagreeable stranger as a co-partner or as a neighbour

When a person files suit for pre-emption, prime object will be to prevent any vexation/ trouble to partners/co-sharers, etc. and not to enrich him.

Document of power-of-attorney contained no specific delegation of power in favour of attorney for exercising the right of pre-emption over suit land on behalf of the pre-emptors

Effect

Special attorney in such circumstances could not have made the Talb-i-Muwathibat and Talb-i-Ishhad on behalf of the pre-emptors

For all intents and purposes no right of pre-emption was legally exercised on behalf of pre-emptors in the present case

Moreover, the said attorney also did not bother to appear in the witness box to offer himself to the test of cross-examination as regards his purported authority to exercise right of pre-emption on behalf of pre-emptors

Withholding of such evidence by the pre-emptors had not been explained anywhere, which gave an adverse presumption as regards the merits of their claim of making Talb-i-Muwathibat and Talb-i-Ishhad, strictly as mandated under the provisions of Islamic Law

Suit for pre-emption was dismissed accordingly.

Under statutory law of pre-emption furnishing the date, time and place in the plaint was necessary to establish performance of Talb-i-Muwathibat and Talb-i-Ishhad

Principles of Islamic Law of pre-emption, which was the original source of statutory law on the subject, set out equally high standards for making Talb-i-Muwathibat and Talb-i-Ishhad, as prescribed under the statutory law

For making valid demands of Talb-i-Muwathibat and Talb-i-Ishhad the language and legal requirements under statutory law and Islamic law were substantially one and the same, except that under the statutory law condition of written notice of Talb-i-Ishhad, had been added, which of course was not the requirement under the Islamic Law of pre-emption.

Suit for possession through pre-emption was instituted by the pre-emptors on 25-2-1992, when there was no statutory law of pre-emption in force in the area where suit land was situated, and pre-emption proceedings were regulated under the general principles of Islamic Law of pre-emption

Pre-emptors submitted two lists of witnesses, first after the framing of issues, and second during post remand proceedings in the suit

Both lists contained names of two different sets of witnesses

Surprisingly, name of the two witnesses of Talb-i-Muwathibat and Talb-i-Ishhad did not appear in the first list of witnesses submitted by the pre-emptors

Even the second list of witnesses submitted by the pre-emptors did not contain name of one of the witnesses of Talb-i-Muwathibat and Talb-i-Ishhad, who only surfaced at the time of deposing in the witness box

Such fact alone was sufficient to show that introduction of their names as the witnesses of Talb-i-Muwathibat and Talb-i-Ishhad was an afterthought and for such reason alone names of said two witnesses were also withheld by the pre-emptors in their pleadings

Such admitted facts from the case record were fatal to the claim of the pre-emptors as regards their right of pre-emption under the general principles of Islamic Law

Evidence on record also showed that there were material contradictions as regards the pre-emptors' claim of acquiring knowledge of sale qua making Talb-i-Muwathibat and Talb-i-Ishhad, which shortcomings could not be lightly brushed aside

Pleadings of the pre-emptors in their suit lacked material particulars, which were required to be disclosed/unfolded in the plaint to give a fair chance to the vendee to put up his defence

Apart from non-disclosure of the time, date and place of making Talb-i-Muwathibat and Talb-i-Ishhad, the names of the two witnesses of Talb-i-Ishhad were also not disclosed by the pre-emptors in their pleadings

Non-disclosure of such material particulars at different stages of the proceedings was not a mere mistake or oversight but a deliberate act of the pre-emptors with some ulterior motive, which was fatal to their claim of pre-emption

Moreover, Talb-i-Muwathibat and Talb-i-Ishhad were not made by the pre-emptors in the required manner of vigilance and promptness

Suit for pre-emption was dismissed accordingly.

Meaning.

Found-ation of claim of pre-emption rested on making an immediate declaration of intention to assert one's right (Talb-i-Muwathibat) and if the same was not done, the entire structure collapsed.

Evidence produced by plaintiff and his statement with regard to performance of talbs by him and gaining knowledge of sale was not in consonance with the pleadings

No date, time and place had been mentioned in the plaint with regard to performance of Talb-i-Muwathibat

Averment made in the pleadings did not constitute the evidence but evidence led must be consistent therewith

Pleadings could not be departed except by way of amendment

Anything stated outside the scope of such averment could not be looked into

Evidence and statement of the plaintiff was not only divergent from pleadings but there were inter se contradictions with regard to gaining knowledge of sale of suit land and performance of required talbs

Plaintiff had failed to establish performance of talbs in accordance with law

Findings recorded by the Trial Court were well versed and based on sound reasoning

Appeal was dismissed in circumstances.

No evidence was produced by the pre-emptor to establish his ownership of other land alleged to be abutting with the suit land

Party could not claim to be Shafi-i-Jar or Shafi-i-Khalit to enforce right of pre-emption merely on the basis of unsupported assertions with regard to ownership of some land presumed to be lying next to a sold out piece of land

Certain conditions should stand fulfilled before a person could claim his entitlement to the right of pre-emption

Person should either be a co-sharer in the property (Shafi-Sharik), or a participator in the immunities and appendages such as to use the same way or right to discharge water (Shafi-i-Khalit) and/or he must be the owner of the adjoining immovable property (Shafi-i-Jar) to claim such right

Evidence beyond pleadings could not be looked into

Plaintiff was bound to prove not only on the date of sale but also at the time of instituting proceedings to claim right of pre-emption and up to the time the decree was passed by Trial Court he had the superior right of pre-emption being the owner of adjoining land

Plaintiff had failed to maintain his right of pre-emption to the suit land up to the time the decree in his case was passed

No piece of material brought on record had been excluded out of the consideration by the courts below

Appellate Court had given findings on all the points the parties were at odds with each other by discussing issues framed by the Trial Court

No prejudice had been occasioned to the pre-emptor with regard to non-framing of points for determination by the Appellate Court

Appellate Court had given its judgment in accordance with the provisions of O. XLI, R. 31, C.P.C. as every disputed point had been dealt and findings were supported by reasoning

Technicalities should not be allowed to impede the way of justice

If compliance of the provisions of O. XLI, R. 31, C.P.C. was lacking in the judgment of Appellate Court then such irregularity could be condoned if substantial justice had been rendered

Pre-emptor had failed to establish his right of pre-emption through confidence inspiring evidence

Appellate Court had dismissed appeal after thorough discussion and a proper appreciation of evidence

No illegality, non-reading or mis-reading of evidence or any error in the exercise of jurisdiction by the Appellate Court had been pointed out

Revision was dismissed in circumstances.

Object behind the preferential right of pre-emption was to check the descending of the strangers into one's neighborhood and to preserve the family heritage and honour.

Plaintiff having not pleaded in the plaint assertion of right of pre-emption in the presence of witnesses, could not be allowed to set out a new case beyond the scope of his pleadings

Right of pre-emption would be extinguished where plaintiff did not make talbs in accordance with law

Talb-e-Muwathibat, the first demand had to be made in the same meeting

Plaintiff, in the present case, neither declared his intention nor asserted the right of pre-emption immediately after receiving information of sale rather he went to the suit-land to claim right of pre-emption in the presence of notables which did not constitute Talb-e-Muwathibat in accordance with law

Plaintiff did not satisfy the requirements of Talb-e-Muwathibat

Appeal was dismissed.

Plaintiffs had neither claimed nor adduced evidence to the effect that at the time of making Talb-e-Ishhad they referred Talb-e-Muwathibat

Such omission at the time of performing Talb-e-Ishhad was fatal to the claim of pre-emptors

Two talbs had not been satisfactorily discharged and proved through evidence by the plaintiffs

Versions of witnesses of plaintiffs were contradictory to each other which had destroyed their case

Plaintiffs were not entitled to claim pre-emption

Revision was dismissed in circumstances.

Suit for pre-emption can be filed only by the class of persons namely, (1) a co-sharer in property/Shafi-i-Sharik (2) a participator in immunities and appendages, such as a right of way or a right of discharge water/Shafi-i-Khalit and (3) owners of adjoining immovable property/Shafi-i-Jar but not tenants, nor persons in possession of such property without any lawful title.

Difference between suit for pre-emption and other suit with regard to maintainability was that in the former case the party only had to plead his status and that of having completed requisite formalities to claim title in exercise of right of pre-emption while in the latter the party not only had to establish his status but infringement or denial of any of his right or character; in the former the question of cause of action had to be examined only within the meaning of Islamic Law while in latter within the meaning of C.P.C. and other law; in the former only relief of recovery was available while in the latter multiple reliefs could be sought.

If right of pre-emption had ceased or come to an end before date of decree then suit for pre-emption could not succeed.

Any person within rights of his/her category could avoid introduction of stranger by getting the title of sold property by exercising right of pre-emption.

Object of right of pre-emption was to avoid introduction of stranger and was an exception over absolute right of owner of property to sell the same which was protected and guaranteed by other laws of the land

Such right would accrue only when there was sale and not otherwise

Sale alone would give right to the pre-emptor to exercise right of pre-emption and not otherwise

Sale should be valid, complete and bona fide.

Contention of defendant was that cause of action had ceased to exist on account of cancellation of sale-deed and revival of suit-land in favour of original owner

Application for rejection of plaint was accepted by the Trial Court but same was dismissed by the Appellate Court

Validity

Exercise of jurisdiction under O.VII, R.11, C.P.C. in the pre-emption suit could only be invoked where the suit did not prima facie establish category of pre-emptor and any failure in performing talbs

Once there was a valid, complete and bona fide sale which had given rise to right of pre-emption to the pre-emptor then defendant could not frustrate such right by any way

Pre-emption could be claimed on the basis of ownership existing at the time of sale and not on the basis of subsequent ownership

Improvement in the status of vendee after institution of suit did not defeat the right of pre-emptor whether same was his intentional act or was natural event

Subsequent cancellation of sale or re-transfer of suit-land or any other attempt made by the vendee-defendant would not affect the right of pre-emption

Impugned sale-deed did not specify whether same was conditional or incomplete

Defendant had failed to point out any illegality or irregularity in the impugned order passed by the Appellate Court

Revision was dismissed.

Revision was dismissed.

Talb-e-Ishhad must be made in presence of the buyer, or the seller, or on the premises which were the subject-matter of the sale

Talb-e-Ishhad made by pre-emptor at his own house was not in accordance with Islamic law

Omission was fatal to the claim of applicant as pre-emption required strict proof

Right of pre-emption being in the nature of a piratical right had always insisted upon a strict compliance of the law applicable to pre-emption.

Pre-emptor in the plaint had claimed to be Shafi-i-Khalit and Shafi-i-Jar but while recording his statement before Trial Court, he mentioned boundaries and was not found either Shafi-i-Jar or Shafi-i-Khalit

Pre-emptor, in circumstances, was not entitled and competent under Islamic law to file suit for pre-emption, therefore, post-sale requisites were immaterial

High Court declined to interfere in judgment and decree passed by Trial Court as the same did not suffer from any illegality, irregularity, impropriety or perversity

Appeal was dismissed in circumstances.

Right of pre-emption could be transferred or inherited only after passing of decree in favour of pre-emptor, but not prior thereto

Principles.

Contention of the defendant was that the prerequisites were missing in the plaint and therefore Trial Court should have rejected the same under O. VII, R 11 of the C.P.C.

Validity

Plaint of the plaintiff did not qualify the status and standard of a suit required to be filed in pre-emption cases

Contention of the plaintiff that the mere use of the word "shifa" was sufficient and details of Talbs would have been provided by witnesses; lacked legal sanctity for the reason that evidence beyond pleadings was inadmissible

Plaintiff was bound to mention the date, time and presence of witnesses before whom the "Talb-e-Muwathibit" and "Talb-e-Ishhad" were performed and suit lacking such prerequisites was not maintainable

Courts were required to inevitably consider and look at the maintainability and competency of the suit by examining the contents of the plaint and analyzing the same within the framework of O.VII, R. 11 of the C.P.C.

Talbs were sin qua non for enforcement of right of pre-emption and admittedly the same had not been performed by the plaintiff

High Court set aside concurrent findings of the courts below

Revision was allowed

Civil Procedure Code (V of 1908), O.VII, R.11.

Any lawful device to save oneself from a prospective pre-emption is valid.

Pre-emption right is a feeble right and unless it is proved through credible and cogent evidence that each of the Talb was preformed strictly in accordance with law, the right of pre-emption is lost.

Plea raised by vendees was that after death of pre-emptor the suit had abated and pre-emptor failed to prove Talb-e-Muwathibat

Validity

With the death of pre-emptor the suit would not abate but legal heirs of deceased had no right on the date of sale and thus they could not improve their right after the sale by inheritance as the cause of action had already come into existence

Subsequent qualification by inheritance could not vest legal heirs of pre-emptor with superior status after the accrual of the cause of action

Omission to mention the time, date and place of making Talb-e-Muwathibat in plaint was fatal to the suit of pre-emption

High Court declined to resolve the dispute between parties as to whether or not the pre-emptor possessed superior right of pre-emption because, pre-emptor failed to meet the requirements of plaint

High Court declined to interfere in the judgment passed by Lower Appellate Court

Second appeal was dismissed in circumstances.

By making statement to the effect that he was ready to give sale consideration amount as he was shareholder in the same Survey Number, plaintiff had fulfilled the requirements of valid talbs

Pronouncement/uttering of the word `Talb' was not necessary as the law looked at the substance and not at the form.

Land having been sold from joint Khata, eligibility of pre-emptors is to be determined vis-a-vis the share of land sold.

In order to succeed in a suit for pre-emption a party has to have a superior right of pre-emption at the time of sale, at the time of filing of suit and also at the time of final decision of suit.

Plaintiff in the plaint had stated that he had made Talb-i-Muwathibat at the same time and on the same day in presence of two witnesses he made Talb-i-Ishhad

Plaintiff appeared as his own witness and also produced two witnesses to prove making of Talbs in accordance with law

Both witnesses who proved making of Talbs by the plaintiff, remained unshaken in cross-examination

Plaintiff had fully established that not only the suit property was liable to be pre-empted but also he exercised both his Talbs in accordance with the requirements of the law

Judgment and decree of Appellate Court was set aside and that of the Trial Court were upheld.

Plaintiff claimed right of pre-emption on the ground that suit property was adjacent, contiguous and connected with his house in which he was residing with his family for the last 17 years

Plaintiff had also claimed that he had made Talbs in accordance with law

Trial Court decreed the suit filed by the plaintiff, but Appellate Court set aside judgment and decree passed by the Trial Court

Validity

Plaintiff had fully proved that suit property was adjacent, contiguous and connected with his house

Plaintiff, in circumstances, had fully proved his right of pre-emption in respect of suit property being `Shafi-ul-Jaar' (owner of adjacent property).

Disputed lands could not escape the incidence of pre-emption, according to law.