GUL MUHAMMAD Versus JARO

ORDER

ZULFIQAR AHMAD KHAN, J.--- This revision has been filed against the appellate Court's Judgment dated 24.12.2010 passed by the 3rd Additional District Judge Sukkur rendered against the Judgment and Decree passed in F.C Suit No. 1/2004. The matter allegedly pertains to pre-emption right exercised by way of Shafi-e-Khalit and Shafi-e-Jar. The case of the applicants inter alia is that he owns neighboring survey No.741 (which adjoins survey No.740) allegedly sold by respondent No.1 to respondent No.2 in respect of which he claims to have made proper Talbs. The trial Court framed four key issues which are reproduced as under:--

1. Whether the plaintiff is pre-emptor in accordance with Mohammadan Law?

2. Whether plaintiff made demands in accordance with law?

3. Whether defendant No.2 is not stranger and also pre-emptor of the suit property and is Shafi-e-Sharik?

4. Whether the suit of the plaintiff is time barred ?

For the first two issues, trial Court gave findings in negative whereas for issue No.3, for its first part, the finding is in affirmative and for the second part, it is in negative, whereas for issue No.4, the trial Court gave its findings in affirmative, meaning thereby the trial Court reached to the conclusion that neither the plaintiff had pre-emption right in Mohammadan Law nor the Talbs were made in accordance with Mohammadan Law, as well as the suit is held to be time barred under the Limitation Act. Against these findings, an appeal was preferred wherein the appellate Court reversed the findings of the trial Court on issue No.1 holding that the applicant was pre-emptor in accordance with Mohammadan Law, however, declined to interfere with other findings. The applicant is present in person and has forwarded comprehensive arguments in support of his case. He submits that pre-emption is personal right and as per Shariah he has all the rights to restrain the sale of adjoining property to a stranger. When challenged on the point of limitation, he submitted that as soon as he got the information about the sale, he made the Talbs however, on the question that he failed to produce two witnesses as required under Article 236 of Muhammadan Law by Mulla's, he said that one independent witness was examined by him and by mere admission of defendant No.1 through Exhibit No.42, there remained no necessity to bring a second witness. With regard to limitation, he has placed reliance on 1986 PLD (sic) 458.

Learned counsel for the respondents while agreeing with reversal of finding on issue No.1, however maintained that the requirement of Article 236 of two independent witnesses has not been complied with as well as he contended that the suit was time barred.

Heard parties, reviewed the material on record. While the trial Court considered the case of the applicant and gave negative findings to his competency as pre-emptor on the ground that his name was not entered into the record of the land in question as the land remained in the name of his mother, however appellate Court reversed this finding by holding that being a legal heir, he was competent to demand pre-emption. With regard to requirement of two independent witnesses under Article 236, his contention that the defendant itself having admitted his Talbs became a witness is clearly devoid of merit. There is clear requirement for two witnesses of "Talb-i-ishhad" which the petitioner has failed to comply. Be that as it may, he has admitted that there were atleast four other cases which he has filed in respect of other neighbouring properties claiming right of pre-emption. This is an admission which has serious consequences.

The right of pre-emption has been discussed in details in the landmark Judgment of Government of N.W.F.P through Secretary, Law Department v. Malik Said Kamal Shah reported as PLD 1986 Supreme Court 360. It is an admitted fact that for the claim of "Talb-i-jar", the properties are preferentially to be residential and at many occasions Courts have held that in respect of large chunks of agricultural land, claim by way of Shafi-i-jar is not tenable and application of shafi-i-jar to such parcels of land would amount to give currency to the hyprocracy. Since the principles of Shifa confronts with powerful rights of neighbourers, it is worth mentioning that Shariah has given more preference to the right of neighboures as compared to right of pre-emption until and unless it is shown that presence of strangers in the neighbourhood would cause .zarrar. to the pre-emptor. It is admitted that there is no statutory pre-emption law in Sindh, therefore, strict compliance of Shariah is the only way forward while keeping in mind that in the Holy Quran, there is no mention express, or implied of a right of pre-emption (PLD 1985 Karachi 161). Particular mention of the Govt. of N.W.F.P judgment (supra) is necessary again to understand the pre-requisites of such a claim. Paragraphs from the said judgment are reproduced in the following:--

A perusal of the foregoing fundamental aspects of the right of Shifa in Islam depicts that Shifa cannot be used as a tool for becoming rich by adding adjoining properties to one's land holdings by forcing neighbourers to compulsory sell their estates to the claimants. Shariah has made provision of this right to those only who are in desperate need of exercising it to save themselves from "zurrer" Courts have declared Shifa a feeble right (PLD 1995 Khi 608) and abovementioned Apex Court's judgment has concluded that "it is through such ill founded claims that Courts are flooded with such false pre-emption claims and if Shifa is applied strictly in accordance with Sharia, it will bring an end to such unsurplus litigation". Another aspect of Haq-e-Shiffa is its contrast with the rights of neighbourers under Shariah. As Shifa is part of "Mamlaat" and not "Ibadut", one needs to look at it in juxtaposition with other Mamlaat, one of such Mamlaat is one's own conduct with his neighbourers. Our Prophet Hazrat Muhammad (... ..) has given tremendous importance to the rights of neighbourers to the extent that Hazrat Aaishia Siddiqa ( ) wife of the Holy Prophet (... ..) has quoted Prophet (... ..) as under:-

(No.2153 . Chapter 406, Shahee Muslim Sharif (third volume) by Moulana Muhammad Zikreya Iqbal)

Not only on account of the above reasons, the case of the applicant is marred with his failure to produce two witnesses of Talb-e-Ishhad. Also his epitite as shown through his claims in respect of several other neighboring properties is clearly aimed to add to his richness, which act is in utter violation of the fundamentals governing the concept of Shifa which aims to safeguard privacy of Muslim families (PLD 1990 Kar. 387) and to prevent inconvenience which may result from introduction of a disagreeable stranger as a co-partner or neighbor. Review of the impugned judgment shows that the Courts have fully considered weaknesses of the applicant's case where it was alleged that he was not the owner of the adjacent land entitling him to press a claim for pre-emption. Further, Court witnessed that no demands were made in accordance with law in respect of the requirement of two Talbs in the presence of two witnesses as he produced only one witness and that too his own son Noor Muhammad, who has been doing this job in a number of cases filed by the applicant (his father) claiming rights to neighboring properties through ill conceived pre-emption suits. I thus do not find any strength in the arguments put forward by the applicant who fails to impress me as to any illegality or irregularity in the findings recorded through the impugned judgment nor I see any mis-reading or non-reading of evidence, or any patent error floating on the surface. I, therefore, dismiss the instant revision application additionally impose costs of Rs.10,000/- payable in the accounts of the Masjid situated inside the boundary wall of High Court of Sindh Bench at Sukkur.

ZC/G-5/Sindh Revision dismissed.