NAZAR MUHAMMAD Versus ABDUL RAUF

This order shall dispose of Revision Petition riled by petitioner against order, dated 11-8-1990 passed by Majlis-c-Shoora, Loralai whereby order/decree, dated 31-12-1989 in favour of plaintiff/petitioner was set aside and his suit for possession through pre-emption was dismissed.

1. Concisely stating the facts of the case are that on 12-10-1988 petitioner instituted a suit for possession through pre-emption in respect of landed agricultural property entering into Khasra No.850, Khewat No.6 and Khatooni No.7 situated in Mahal Kan Mehtarzai, Tehsil Muslimbagh (hereinafter referred to as 'land in question' on averments that sale of land in question took place between respondent No.2 Abdul Khabir and respondent No.1 Haji Abdul Rauf in pursuance of agreement dated 13th September, 1988. The grounds for enforcing right of pre-emption were:---

(i) Contiguity.

(ii) Common watercourse

On 3-11-1988 respondents Nos.1 and 2 riled separate written statements repudiating claim of petitioner in suit objecting on the sale consideration of the suit in land. it was the case of respondent that according to agreement for sale consideration is Rs.43,000.

The trial Court on perusal of pleadings of the parties struck following issues for determination:--

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2. The petitioner/plaintiff besides his own statement examined 7 witnesses in support of his claim, whereas respondent produced 12 witnesses and also got examined himself to substantiate his stand.

3. The learned Qazi Muslimbagh (the trial Court) vide judgment, dated 31-12-1989 decreed the suit in favour of petitioner against respondent subject to payment of Rs.43,000 towards price of land in question.

4. The respondent No.1 Abdul Rauf appealed against order of trial Court before Majlis-c-Shoora, Loralai. In memo. of appeal for the first time it was asserted that actually Khasra number of land in question is 829 and not 850, therefore, for this reason the decree of lower Court is not executable. The learned Majlis-c-Shoora after hearing arguments of both the parties vide order, dated 21-4-1990 referred the case to trial Court to determine:---

(i) Whether disputed property is covered by Khasra No.850 or not; ,

(ii) For making up deficiency of court-fee;

(iii) For summoning respondent No.2 Abdul Khabir for the purpose of cross-examination.

It is worth to mention here that before trial Court respondent No.2 was not subjected to cross-examination. In the light of above direction the Court of Qazi started inquiry. However, on 7-6-1990 petitioner moved an application under Order VI, Rule 17 read with section 151, C.P.C. seeking amendment in the plaint to the effect that in place of Khasra No.850, Khasra No.829 may be allowed to be incorporated. The reasons advanced for amendment were that due to inadvertence wrong Khasra number has been mentioned. It appears that learned Oazi did not entertain the application for amendment and returned the same to petitioner without passing any order.

Consequently the trial Court afforded opportunity to petitioner of cross-examination on the statement of respondent No.2 on 19-6-1990 whereas Halqa Patwari was examined on 21-6-1990 who proved that suit land is covered by Khasra No.829 and not 850, and after completion of formalities case is returned to appellate Court.

5. The perusal of record reveals that on receipt of the record by the appellate Court, opportunity was afforded to parties to further argue the case, but they declined to avail this opportunity, as such, vide impugned judgment, appeal was disposed of whereby order/decree of Qazi dated 21-12-1989 was set aside and suit was dismissed; thus instant petition has been riled challenging aforesaid order.

6. Mr. Muhammad Aslarn Chishty, counsel for petitioner argued that:---

(1) No opportunity of hearing was given by Majlis-c-Shoora on receipt of record from lower Court after recording statement of Patwari etc.

(2) The plaintiff/petitioner could not be non-suited on technical ground for mentioning incorrect Khasra number in the plaint, because when written statement was filed, no such objection was raised and for the first time while submitting appeal respondent No.1 objected on mis description of the property in dispute.

(3) The impugned order suffers from inconsistencies of reasonings because at one place in the judgment it is mentioned that Talab-i Muwasabat was made with delay, whereas on other place it is written that Talab-i-Muwasabat is not proved, as such, interference is warranted.

(4) The petitioner has proved Talab-i-Muwasabat and Talab-i-lshhad in accordance with law, but Majlis-e-Shoora dismissed the suit without legal justification.

7. On the other hand counsel for respondent Mr. Muhammad Zafar argued as under:---

(1) On receipt of record from lower Court, Majlis-e-Shoora afforded opportunity to both the parties to advance further arguments in support of their contentions, if any, but both the parties declined to further argue the case, as such, Majlis-e-Shoora decided the appeal according to law.

(2) The petitioner failed to mention correct description of disputed property which would mean that no 'Talab' as envisaged under law was performed, as such, Majlis-e-Shoora has rightly set aside the order of trial Court.

(3) The impugned order does not suffer from any inconsistency on question of Talab-i-Muwasabat. However, petitioner failed to prove Talab-i-Muwasabat, as such in absence whereof the right of pre-emption cannot be enforced.

4)' The petitioner also failed to perform Talab-i-Ishhad in accordance with law, thus due to this reason as well, suit was liable to 'be dismissed.

I have heard both the learned counsel for parties 'and with their lance record of case has also been perused.

8. Now, first of all taking up objection of the learned counsel for petitioner with regard to non-providing opportunity of hearing, it may be seen that on receipt of file by appellate Court after conducting inquiry both the parties on 4-8-1990 stated that no further arguments are required in this case. Resultantly case was adjourned to 11-8-1990 for announcement of judgment. As parties themselves have chosen no( to make any further submission, therefore, the objection of non-providing opportunity of hearing appears to be incorrect and contrary to record. I

9. Perusal of Majlis-e-Shoora's order reveals that petitioner/plaintiff was non-suited for one of the reasons that suit property is not properly described in plaint. It may be observed that when suit was instituted Khasra number was mentioned as 850 in the plaint and when written statement was filed no objection was raised relating to correctness of description of property. In as much as it was admitted that land in question was purchased by respondent No.1 in pursuance of sale agreement, dated 13-9-1988 which would mean that respondent confirmed that the property in suit was purchased by respondent No.1 from respondent No.2, similarly vendor Abdul Khabir in his statement confirmed that disputed property was sold by him to vendee, i.e. respondent No.1 on sale consideration of Rs.43.(X)O. As before trial Court no objection in this behalf was raised and for the first time, in the memo. of appeal filed by respondent No.1 before appellate Court, the objection of misdescription of property was raised, as such, keeping in view these facts appellate Court vide its order, dated 21-4-1990 directed to trial Court to record the statement of the concerned Patwari in order to ascertain description of property.

10. The material facts available on. record are sufficient to establish that both the parties were diligently pleading their cause before lower Court in respect of property which was sold by respondent No.2 to respondent No.1,1 irrespective of the fact whether Khasra No. is 850 or 829. Therefore, due to mistake of wrong Khasra number in the plaint, the claim of the petitioner A cannot be disbelieved. In- such like case reported in PLD 1985 Kar. p.1611 'Hussain Bakhsh v. Mir Muhammad and three others" honourable Single Judge of Sindh High Court observed that failure to quote survey number or to expressly mention exact location of property etc. would not render right of pre emption ineffective.

Now, reverting to next contention of the learned counsel for petitioner namely, that in impugned judgment there arc inconsistent reasonings on question of proving "Talab-e-Muwasabat". The perusal of relevant portion of the judgment visualises that appellate Court came to the conclusion that Talab i-Muwasahat was not performed, for two reasons:--

(i) That Talab was made, but not instantly or immediately-,

(ii), That due to delay in making Talab-i-Muwasabat petitioner had failed to prove the same.

12. Connotation of Talab-i-Muwasabat is ordinarily defined as 'jumping demand'. In this behalf as per Muslim Law of Pre-emption from "Kitab-ul Shifa of Fatawa Alamgiri and Fatawa of Qazi Khan, Talab-i-Muwasabat means that when a person who is entitled to pre-emption, hears of sale, he must claim his right immediately at the very instant and if he remains silent without claiming right, it will be extinguished". In Muhammadan Law by Mullat 'Talab i-Muwasabat' mean that when one has decided his intention to assert his right then immediately on receiving information of the sale he has to make demand of 'jumping'.

In the Digest of Muhammadan Law by Neil B.E. Baillie, 'Talab-i Muwasabat' was defined, "that when a person who is entitled to pre-emption has heard of a sale he ought to claim his right immediately on the instant (whether there is any one by him or not) and when he remains silent without claiming right, then it is lost".

In the case of "Government of N.-W.F.P. v. Syed Karnal Shah" reported in PLD 1980 SC p. 300 it is laid down as under: a-r.j AS ~Att UJ-

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13. The petitioner/pre-emptor acquired knowledge of sale of disputed property through Rozi Khan son of Muhammad Fazal. According to his evidence, at tile instance of the petitioner he asked respondent No.2 Abdul Khabir to sell or exchange his property with respondent No.1, when this message was conveyed to him he told that he has already sold his property to vendee i.e. respondent No.1 on sale consideration of Rs.43,000, as such, this information was passed on by witness to pre-emptor in presence of Hayatullah, Rehmdil and Gulistan. On knowing about the sale of disputed property, petitioner instantly asserted his right of pre-emption. The witness Gulistan had also confirmed the statement of Rozi Khan and he stated that one day he came out of his village and when he was passing near the house of Nazar Muhammad petitioner he saw that plaintiff Nazar Muhammad, Hayatullah and Rehmdil were standing there, in the meanwhile, when witness was enquiring about their welfare, Rozi Khan came there and Malik Nazar asked him that what he has done about the work which was entrusted to him. Rozi Khan told him that Abdul Khabir has sold the land to Abdul Rauf on sale consideration of Rs.43,000, on this Nazar Khan announced about his right of pre-emption, and he also asked Hayatullah and Rehmdil to become witnesses of this announcement. Likewise other witnesses Hayatullah and Rehmdil confirmed the fact of making assertion of right of pre-emption by petitioner in the same Majlis, however, Hayatullah stated that at the time of asserting right of pre-emption, petitioner was standing towards eastern side of the Viala (water channel) from where he came towards western side and there he stated that he urged his right of pre-emption in respect of disputed land, whereas P.W. Rehmdil deposed that plaintiff was standing on western side, from there he asserted right of pre-emption. The petitioner/plaintiff Nazar Muhammad in his statement in the Court stated that when P.W. Rozi Khan informed him about the sale of property he immediately urged his right of pre emption.

Learned counsel for respondent Mr. Muhammad War argued that petitioner/pre-emptor had not urged his right of pre-emption by making Talab-i-muwasabat instantly because as per statement of P.W. Gulistan he had acquired knowledge about the sale of the disputed property sometime back because he enquired from Rozi Khan about the work which was entrusted to him, which means that without making Talab-i-Muwasabat he had sent Rozi Khan to vendor to agree to his claim of pre-emption and similarly according to statement of Hayatullah and Rehmdil, petitioner/plainfiff wasted time by changing his position as he came from eastern side to western side of Viala, it means that petitioner had no clear intention in his mind of making Talab-i Muwasabat. The contention raised by learned counsel is not legally correct.

15. On overall re-assessment of the evidence produced by petitioner in this context, it is proved that there was no delay on the part of pre-emptor in making claim of pre-emption relating to disputed property. Merely for the reason that he had sent Rozi Khan to Abdul Khabir vendor to enquire about the sale of property would not amount to having knowledge of sale between respondents Nos.2 and 1. The right of pre-emption can be enforced when it is proved that there is clear sale between vendor and vendee and in order to ascertain this fact it is necessary to make inquiries and after that it is prima facie proved that sale has taken place then pre-emptor becomes entitled to assert right of pre-emption by performing, firstly 'Talab-i-Muwasabat', likewise petitioner/pre-emptor would not be held disentitled to claim right of pre emption on the ground that he has changed his position from eastern to western side while standing on the Viala before making Talab-i-Muwasabat. In the judgment of honourable Supreme Court of Pakistan, relevant portion whereof has been reproduced above, the principle has been laid down that pre emptor is bound to make 'Talab-i-Muwasabat' in the same Majlis. However, if he had consumed some time. in thinking over about the price of sale consideration etc. it does not mean that he is not interested in the pre-emption, therefore, applying this principle on the facts of ' the present case, there is no doubt in holding that petitioner had rightly performed Talab-i-Muwasabat on acquiring knowledge of sale of property, and appellate Court has erred in law in disbelieving the claim of petitioner on the ground that Talab-i-Muwasabat was not performed in accordance with law, as such on this score he cannot be non-suited.

16. In view of the above discussion, now it is essential to examine as to whether Talab-i-Ishhad was duly performed by the pre-emptor or not. The learned counsel for respondent emphatically argued that on the basis of available record the petitioner had failed to fulfil the second demand in accordance with law. In order to elucidate his contention, he referred to statement of plaintiff's witnesses namely Rozi Khan, Gulistan, Hayatulgah and Rehmdil and urged that none of the witneses stated that petitioner/pre emptor while performing Talab-i-Ishhad did refer to earlier demand i.e. Talab i-Muwasabat, therefore, without its reference Talab-i-Ishhad could not be completed. Mr. Muhammad Zafar counsel for respondent referred to Muslim Law of Pre-emption from Kitabul Shufa and Fatawa-e-Alamgiri and Fatawa Qazi Khan, p.117, according to which Talab-i-Ishhad is defined as follows:--

"Talab-i-Ishhad or demand with invocation of witnesses, is meant the calling of witnesses by the pre-emptor to attest the Talab-i Muwasabat, the immediate demand and his right of pre-emption is thereby strengthened. The invocation of witnesses is not required to give validity to the demand, but only to provide the pre-emptor with proof., should the vendee deny the demand, saying, "you did not demand your right, when you heard of the sale, nay, abandoned your right, and rose from the meeting; while on the other hand, the pre emptor asserts, 'Irdid demand' and since under the law the word of the vendee may be trust it is necessary to call on witnesses to attest the Talab-i-Ishhad in order to give validity to the Talab-i-Muwasabat. Hence it is required that Talab-i-Ishhad should be made in the presence of the vendee or vendor, or on the premises, the subject of sale and the person claiming the right of pre-emption should say in the presence of one or other of these, such a person has purchased this mansion; or a mansion (specifying its boundaries) and I am its pre emptor, and have demanded pre-emption and now do demand it, bear you witness to this."

In the Digest of Muhammadan Law by Neil B.E. Baillie, page 489 the connotation of "Talab-i-Ishhad" has been defined almostly in the same words and phrases which have been reproduced above from the book of Muslim Law of Pre-emption.

Similarly in the principles of Muhammadan Law by Mulla "Talab -I-ishhad" is defined as under-.--

"Demand for Pre-emption.-- No person is entitled to the right of pre- emption unless--

(i) he has with the least practicable delay affirmed the intention referring expressly to the fact that the Talab-i-Muwasabat had already been made and made a formal demand---

(a) either in the presence of the buyer or the seller, or on the premises which are the subject of sale (a) and

(b) in the presence at least of two witnesses.

(c) This formality is called Talab-i-Ishhad (demand with invocation of witnesses).

In the Muhammadan Law by Syed Ameer Ali Talab-i-Ishhad means: ---

"In order to entitle the claimant to perform the second demand in the presence of the vendee it is not necessary that he should be in possession of the property in respect of which the right is claimed (2). For the performance of the ceremony of Talab-i-Ishhad the pre-emptor must take some witnesses with him to the vendor if the property sold be still in his possession, or to the vendee or to the property which is the subject-matter of the claimed. And there in the presence of the witnesses he must say to the following effect: 'such a person bought such a property (sufficiently indicating the same) of which I am the Shafi; I have already claimed my right of Shufa and now again claim it, be therefore m thereof."

In Muhammadan Jurisprudence by Sir Abdul Rahim it is defined that :-

"Talab-i-Muwasabat must be followed by Talab-i-Ishhad and Shafi (pre-emptor), as soon as he receives information of the sale he decide immediately and he must assert his claim (Talabu'l - muwathibt) and follow it by repeating it in presence of two witnesses before ven the purchaser or on the spot (talab'l-taqqir wa'l-ishhad) and h then without loss of time enforce his right in Court unles Khusmat."

Reliance was also placed on the precedented law reported in 1987 Quetta p.209, PLD 1989 Kar. p.246; PLD 1990 p.2399; PLD 198 p.155 and PLD 1986 SC p. 360.

17. The counsel for petitioner controverting the stand taken by respondent's counsel contended that Majlis-e-Shoora has not accepted appeal of respondent on the ground that Talab-i-Ishhad was not performed, therefore, question which has not been attended to by the appellate Court ordinarily is not taken up by the High Court in exercise of revisional jurisdiction. Ho, he further stated that Talab-i-Ishhad was also duly performed by the petitioner in accordance. with law and this fact has been proved through evidence adduced in the trial Court. The counsel argued that in the case "Hussain Bakhsh Muhammad" reported in PLD 1985 Kar. p. 161, it was held that, invocation of witnesses while performing Talab-i-Ishhad would not be f. the case of pre-emptor, learned counsel also referred to various pieces of evidence in order to canvass that Talab-i-Ishhad has also been duly performed by petitioner.

The Majlis-e-Shoora has not given findings in the impugned judgement to the effect as to whether Talab-i-Ishhad has been performed or not.

18. Thus in such like situation, there are two options available to Court.

(i) Instead of deciding the issue at revisional stage, case be remanded to first appellate Court for decision to the extent of performance of Talab-i-Ishhad; or

(ii) To save the parties from further expenditure and also to shorten the litigation between them, issue of performance of Talab-i-Ishhad should be decided on the basis of material available on record in revisional jurisdiction.

In my opinion the second option would be more just and appropriate in view of the facts and circumstances of the case. It is worth to mention here that in exercise of revisional jurisdiction, although such exercise is not undertaken, but in a peculiar circumstance of the case, when there is no request of adducing additional evidence, and appellate Court would also decide any controversy between the parties on material which has already come on record, all such questions can be settled at revisional jurisdiction with a view to shorten the litigation and to save the parties from further expenditure of litigation, as such this issue would be settled in revisional jurisdiction.

18. It is imperative for the pre-emptor to prove performance of Talab-i Ishhad in such manner that it should indicate that at the relevant time pre emptor called the witnesses to attest that earlier Talab-i-Muwasabat was made in their presence instantly/immediately by the claimant, and the pre-emptor should also attribute such words which would be sufficient to gather his intention that he made Talab-i-Muwasabat earlier and again while performing Talab-i-Ishhad he is demanding his right of pre-emption in presence of witnesses.

19. It may be seen whether evidence available on record is sufficient to prove Talab-i-Ishhad in accordance with principles discussed above. I have gone through evidence of petitioner thoroughly, it is noticed that Talab-i-Ishhad has not been performed by the petitioner in accordance with law. Although witnesses were present at the appropriate time, but petitioner in his own deposition as well as his other witnesses had failed to make reference of the Talab-i-Muwasabat which was earlier made by pre emptor.

The net result of the above discussion is that petitioner/plaintiff is not entitled for right of pre-emption for want of performance of Talab-i-Ishhad, -as such, his suit for pre-emption is ordered to be dismissed for the reasons other than noted in the judgment of appellate Court. Consequently the revision is dismissed and parties are left to bear their own costs.

AA./398/Q

Revision dismissed