MUSHTAQ HUSSAIN Versus ALI AHMAD SHAH

ORDER

This judgment will dispose of three civil revisions (C.R.141‑D‑88, 142‑D‑88 and 143‑D‑88) as common questions of law and facts are involved in these revision petitions.

2. The petitioner in each‑ suit claimed superior right of pre‑emption on the grounds of relationship being collateral of the vendor; contiguity and participation in the appendages and means of irrigation. The suit as well as the appeal were dismissed following the law laid down by the Shariat Appellate Bench in the case of Government of N.‑W.F.P. v. Said Kamal Shah (P L D 1986 S C 360). Hence, these civil revision petitions under section 115 C.P.C.

3. Learned counsel in support of the revision petitions argued that the suit could not be dismissed as grounds recognized by Muslim Law of pre‑emption have been taken by the petitioner‑plaintiffs in the plaints. He added that right of pre‑emption on the grounds recognized ‑ by Muslim Law vests in the persons mentioned in the law itself and making of Talabs has nowhere been recognized as one of the ingredients of the right of pre‑emption.

4. It is true, the three Talabs;( Talab-e-Muwasabat, Talab-e-Khasomat, Talab-e-Ishhad) are not the constituents of the right of pre‑emption or the grounds recognized by Muslim Law but these Talabs are necessary, prerequisites for enforcing the right of pre‑emption. This requirement is based on the Tradition of the Holy Prophet (p.b.u.h.): "The right of Shaffa is established in him who prefers his claim without delay"; and the jurists are in agreement that the two Talabs are necessary insomuch that if he makes any delay, his right: is thereby invalidated. (See Hedaya by Hamilton, Vo1. II1 Chapter II page 550).

Reference may also be made to para 7 page 48 of Principles & Precedents of Moohummudan Law by W.H. Macnaghten. Para. 7 reads:

"It is necessary that the person claiming this right, should declare his intention of becoming the purchaser, immediately on hearing of the sale, and that he should, with the least practicable delay, make affirmation, by witness, of such his intention, either in the presence of the seller, or of the purchaser, or on the premises".

So the cause of the right of pre‑emption is sale and neighbourhood 'Jawar', it is confirmed by Talab and Ishhad and is perfected by taking possession. The demand (Talab) is of three kinds:‑ Talab‑i- Muwasabat, the immediate demand; Talab‑i‑Ishhad, the demand with invocation and Talab‑i‑Tamlik, the demand of possession. By Talab‑i -Muwasabat is meant that when a person entitled to pre‑emption hears of a sale, he must claim his right immediately at the very instant, and if he remains silent without claiming the right, it will be extinguished. This is the accepted view of our jurists, and is according to the Asl. By 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 hereby strengthened. The invocation of witnesses is not required to give validity to the demand, brut 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,‑ you abandoned your right'.

By Talab‑i‑Tamlik, or the demand of possession, is meant the bringing of : the matter, before the Kazi, 'so that he may' decree the property to the claimant by reason of .his right .of pre‑emption.. (See Chapter III of the Muslim Law of Preemption by A1‑Haj‑ Mohomed Ullah ibn S . Jung) .

5. In view of above, it is abundantly clear that in case a person in whom a right of pre‑emption otherwise vests, fails to make the necessary Talabs, his right is extinguished and as such he cannot seek enforcement of such a right, so abandoned and invalidated, by lodging proceedings in a Court. In support of this view that no person is entitled to the right of pre‑emption unless he has. made the necessary Talabs, reference is also invited to the observations made at pages 297‑398 by Mr. Justice Pir Muhammad Karam Shah; J. its the cases of Government of N:W.F.P. v. Said Kemal Shah (P L D 1986 SC 360) and to case reported as Sher Muhammad and others. v. Allah Ditto. and others (P L D 1988 S.C.412).

6. In the instant cases, it is not the case of the petitioners that requirement as to Talabs was fulfilled at the relevant time. The suits C as such, in any case, would not have succeeded and were bound to fail. The revision petitions are without merit and the same are, therefore, dismissed in limine.

A.A./M‑868/L Revisions dismissed.