MUHAMMAD HASSAN Versus SHAFIUDDIN

JAVED IQBAL, J: --This is an appeal preferred under section 4(3) of Balochistan Civil Disputes (Shariat Application) Regulation, 1976 against the judgment and decree dated 27-4-1994 passed by learned Majlis-e-Shoora Loralai, whereby the suit filed by the appellants/plaintiffs has been dismissed.

2. Briefly stated the facts of the case are that the appellants/plaintiffs filed a suit for possession through pre-emption in the Court of Majlis-e-Shoora Loralai, against the defendants/respondents with the averment that respondent No.l is owner of the agricultural land bearing Khasra No.1011/49 measuring 41 Rodes and 30 Poles situated in Mohal and Mouza Shah Karez Halqa Shah Karez Tehsil Bori District Loralai, which was sold through mutation entry No.274 attested on 18-7-1992 and possession was handed over to respondents Nos.2 and 3 for consideration of Rs.8,35,800 as sale price, but factually respondent No.l sold the land at a rate of .Rs.40,000 per acre. The appellants/plaintiffs also mentioned that the land in question bears the same Khasra numbers as 49 and Khawat No.52 situated in Mohal and Mouza Shah Karez and entered as jointly in the name of appellants/plaintiffs and respondent No.l and furthermore, that the appellants/plaintiffs are also shareek in the lands adjacent to the land in question whereas respondents Nos.2 and 3 are strangers in the area and they do not have any land there. It is also averred that the respondents are Nasir and are Afghan Refugees residing at Duki Tehsil and appellants/plaintiffs have superior right of pre-emption. It_ is also averred that after having the knowledge of sale they immediately performed Talabs as prescribed under Muhammadan Law and requested for possession which was turned down by the respondents and resultantly a suit was filed, which was subsequently dismissed by the learned Majlis-e-Shoora.

3. The above explained position was repudiated strenuously and written statement was filed wherein various objections were taken including that the plaintiffs/appellants had no right of pre-emption and furthermore, that no Talbas whatsoever were made as prescribed under law and moreso, that the land in question was not agricultural land, but declared as commercial by the Government for residential purposes.

4. The learned trial Court on the basis of pleadings, framed the following issues:--

In order to substantiate their respective claim the appellant produced four witnesses namely Mir Dad (P.W.1), Abdul Ghafoor (P.W.2) Noor Muhammad (P.W.3) Shah Muhammad (P.W.4) and got recorded their own statements. The respondents in rebuttal produced three witnesses namely Malang (D.W.1) Darzi (D.W.2), Muhammad Khan (D.W.3) and also got recorded their own statement. The learned Majlis-e-Shoora vide its judgment and decree dated 27-4-1994 dismissed the suit of the appellants/plaintiffs, hence this appeal.

5. It is mainly contended by Mr. Khushnood Ahmed, Advocate, on behalf of the appellants/plaintiffs that the legal and factual position could not be appreciated properly by the learned lower Court, and moreso, that the case law cited by him was not considered. It is next contended that the appellants/plaintiffs have proved the Talabs, but the learned trial Court without examining the evidence on record has drawn an erroneous conclusion thereby causing serious prejudice to the appellants/plaintiffs. It is next contended that it is not only a case of misreading of evidence, but misinterpretation of law and as such the judgment and decree deserves dismissal. It is argued vehemently that the impugned judgment/decree is inviolative of the provisions as contained under Order XX, Rule 5, C.P.C. because the learned trial Court has failed to mention any cogent ground for dismissing the suit. It is pointed out that there are various other illegalities and irregularities, and as such the impugned judgment and decree is not sustainable.

6. Mr. H. Shakeel Ahmed, Advocate, appeared on behalf of respondents r;' Nos.2 and 3 and supported the impugned judgment/decree with the submission that no illegality whatsoever has been committed and the impugned,, judgment has been passed in accordance with the settled judicial norms and it, is in consonance with the provisions as contemplated under Order XX, C.P.C, It is further contended that the appellant/plaintiffs have failed to substantiate their claim and no evidence could be produced to show that the Talabs were made in accordance with the principles of Mohammedan Law. It is also mentioned that an offer was made to the appellants/plaintiffs to buy the land in question, but they could not arrange the amount, and therefore, no suit could have been filed by them on the basis of pre-emption.

7. We have carefully examined the impugned judgment and decree, which is not speaking one and the evidence which has brought on record could not be discussed at length. We considered for a while to remand the case, but subsequently thought it proper in the interest of expeditious dispensation of justice and to save the parties from agony of protracted trial to thrash out the entire evidence. Mir Dad (P.W.1) has deposed that he visited Patwar Khana, where Shafi-ud-Din, Noor Khan and Haji Abdul Ghafoor were present for mutation of land and told him that they purchased land in Shah Karez. He further deposed that he thereafter proceeded Shah Karez at 5 p.m. and alighted trove the Bus at Bus Stop, where Sahib Jan, Hassan and Malik Abdul Ghafoor were sitting and he told them regarding the sale of land whereupon they claimed Shuffa" on it. He further deposed that Lead Muhammad and Cihaffar also reached there and thereafter Hassan, Sahib Jan and Malik Abdul Ghafoor got up and proceeded to the land and he also followed them froth where they picked up the earth and claimed Shuffa on the land. He further deposed that the land in question was about 100 yards sway where the appellants/plaintiffs were sitting. He further mentioned that appellants/plaintiffs Hassan mentioned the boundaries of the land in question He was subjected to cross-examination and he admitted that he could not mention the Khasra number of land, which was being mutated, however: he pointed out that the land purchased by Nasir, was within his knowledge, He further mentioned that the concerned Patwari told hurt that Haji Ghafoor was selling his land to Nasir and thereafter, he informed the appellants-plaintiffs Abdul Ghaffar (P.W.2) has deposed that he was sitting alongwith Muhammad Hassan, Sahib Jan and Abdul Ghafoor, under a tree, Mir Dad came from Bazar and mentioned about some land to Hassan, Sahib Jan and Malik ;Ghafoor, who got up and said nothing and proceeded towards land and they also followed him. They took earth and raised slogan and claimed their right of pre-emption on the land, and further told them to become witness, if so needed. He further deposed that the land was 60/65 yards away. He also mentioned the boundaries of the lands. He was also subjected to an exhaustive cross-examination and while answering one of the questions, he stated that slogan was raised by Hassan, and Sahib Jan and Abdul Ghafoor followed him. He further mentioned that Mir Dad reached there at about 4/5 p.m. and told that Shafi-ud-Din was selling his land, and Noor Khan Nasir was purchasing the same. He further stated that Mir Dad visited Patwar Khana to get his land mutated to one Abdul Wahab. Noor Muhammad (P.W.3) Qanoongo, produced relevant record, which is Exh.P/A, Exh.P/A-1, Exh.P/B and Exh.tx/IS-i, which was returned back after seeing by the. trial Court. He was also subjected to cross-examination, but nothing advantageous could be extracted. Shah Muhammad (PW-4) has deposed that the appellants/plaintiffs were known to him and while he was going towards east on a Pacca Road, and he saw that Hassan, Sahib Jan and Malik Ghafoor were standing on the land, whereon subsequently a patrol pump was constructed and they were having earth in their hands and claiming right of pre-emption on the land, and on the road Ghaffar, Dad Muhammad and Mir Dad were present. He was also subjected to cross-examination and conceded frankly that he did not have any conversation with the appellants/plaintiffs, who also did not mention the total area regarding which they were claiming the right of pre-emption. He further deposed that the appellants/plaintiffs did not mention the boundaries of the land in question. He also not mention the boundaries. He also conceded that he did not know to whom the said land was sold.

8. We have carefully examined the depositions of above mentioned witnesses, produced in order to support the claim of pre-emption. We have noted various glaring contradictions in the above mentioned statements. Mir Lad (PW-1) has mentioned that when he alighted from the busy at Bus Stop, Sahib Jan, Hassan and Abdul Ghafoor were sitting there, and subsequently Dad Muhammad and Ghaffar came there. He also mentioned the distance of land about 100 yards away while Abdul Ghaffar (PW-2) has deposed that he alongwith Sahib Jan, Muhammad Hassan and Abdul Ghafoor were sitting there, while Mir Dad came from Bazar. Abdul Ghaffar (PW-2) has mentioned nothing that any pre-emption right was claimed immediately, but he deposed that Hassan and Malik Ghafoor got-up and said nothing while Mir Dad on the contrary has deposed that they mentioned their claim of pre-emption. It is also to be noted that Abdul Ghaffar mentioned the distance of land in question about 65 yards. It is also to be noted that Mir Dad (PW-1) has deposed that he visited the Patwar Khana in order to see Sher Muhammad, but Abdul Ghaffar (PW-2) on the contrary pointed out that Mir Dad (PW-1) visited Patwar Khana to see one Abdul Wahab in connection with mutation of his land. It is to be noted that this important aspect of the matter was not mentioned by Mir Dad (PW-1). In so far as the statement of Shah Muhammad is concerned, it does not render any substantial assistance to the case of appellants/plaintiffs, as he himself admitted that he did not have any conversation with the appellants/plaintiffs. It is quite astonishing that without having and conversation, how he came to know that what the appellants/plaintiffs were doing there. In our view his statement is vague as he could not even mention the boundaries of land and it was not within his knowledge that to whom the land in question was sold. Keeping in view the glaring contradiction as pointed out above, in our view the witnesses were either not present at the spot or tutored subsequently to depose in favour of appellants/plaintiffs, and as such they cannot be relied upon. We have thoroughly perused the statement of appellant/plaintiff -No3. Hassan, who-Deposed that they proceeded to Duki, after 2/3 days to contact the respondent, when respondent No.2 Ali Jamal Khan was not available, 'but respondent No.l Muhammad Shaft and respondent No.3 Noor Khan were present. It is quite amazing that in spite of the presence of Noor Khan, they did not bother to see him and no claim for pre-emption whatsoever was made. It is also to be noted that Sahib Jan appellant/plaintiff No. 2 has also deposed that they proceeded to Duki, after 2/3 days and visited the house of Noor Khan, but on the contrary Hassan (plaintiff No.l) stated that the house of Noor Khan was not visited. This contradiction is very fatal and damaging to their claim of pre-emption. It is not understandable that why and how at first instance the right of pre-emption was claimed from Haji Atta Muhammad, who was least concerned in the matter. It has also come on record that the land in question was demanded from respondent No.3 after 2/3 months. It is to be noted that they could not 'mention even the exact period in this regard. Dad Muhammad, who is attorney for appellant/ ptainttil No.3 has admitted that they did not sec dour Khan (respondent No.3). The above discussed evidence 6 suggestive of the fact that no serious effort whatsoever' was made to claim the pre-emption right and first effort appears to have been made after 2-3 days. It is not known what they had been doing during this period. Bare perusal of the evidence, which has come on record, and discussed at length hereinabove, indicates that Talab-e-Ishhad has not been made properly and in accordance with the procedure as prescribed for it, which has been mentioned in Para. 236 of Principles of Mohammedan Law by D.F. Mullah, which is reproduced here in under at the cost of repetition:--

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

(1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called Talab-I- Mawasibat (literally, demand of jumping, that is, immediate demand): and unless;

(2) he has with the least practicable delay affirmed the intention referring expressly to the fact that the Talab-i-Mawasibat had already been made and has 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, and

(b) in the presence at least of two witnesses. This formality is called Talab-i-Ishhad (demand for with invocation of witnesses)."

The above reproduced para would make it clear that talabs must be made out only ii, the prescribed manner, but in an unequivocal term and unless needful is done, the right of pre-emption cannot be claimed. The evidence as discussed above demonstrate that Talab-i-Ishhad was not made accurately. It is pertinent to note that none of the witnesses while stating about Talab-i-Ishhad has referred to Talab-i-Mawasibat having been made earlier. The deposition of the witnesses are self-contradictory and thus the appellants/plaintiffs failed to prove making of Talabs in prescribed manner, thence their suit was not maintainable. In this regard d I am fortified lay the dictum laid down in the following authorities:-.

PLD 1959 Dacca 64;. PLD 1978 Karachi 732 and PLD 1987 Quetta 215.

9. It is to be noted that the essential requirement of Talab-e-Ishhad are as under:--

(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 Mohammedan 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 PLD 1969 Dacca 64."

The above mentioned essential requirement could not be fulfilled by the appellants/plaintiffs. We have also focused our attention to the Digest of Mohammedan Law written by Neil B.E. Baillie, by whom Talab-e-Mawasibat was defined as under:--

"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 "

The deposition of Abdul Ghaffar (PW-2) is indicative of the fact that Hassan and Malik Ghafoor stood-up and said nothing, meaning thereby that they kept quiet and as much the, essential prerequisite regarding Talab-e-Mawasibat were not fulfilled. It was held in case Malik Nazeer Muhammad v. Haji Abdul Rauf as under:--

"It is imperative for the pre-emption to prove performance of Talab-i -Ishhad in such manner that it should indicate that at the relevant time pre-emptor called the witness to attest that earlier Talab-i-Mawasibat 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-Mawasibat earlier and again while performing Talab-i-Ishhad he is demanding his right of pre-emption in presence of witnesses."

10. In the light of what has been stated above, we are, of the view that appellants/plaintiffs could not prove their pre-emption right and hence their appeal being devoid of merits and for the reasons as mentioned above is dismissed. It would be a futile exercise to examine the evidence brought in rebuttal as initially it was for the appellants/plaintiffs to prove their case. No order as to costs.

AA./508/Q Appeal dismissed.