GUL HUSSAIN SHAH vs MULAZIM HUSSAIN SHAH

MUHAMMAD BASHIR KHAN JEHANGIRI, J.-This appeal by leave of this Court is directed against the order of dismissal of a civil revision by the Lahore High Court, Rawalpindi Bench, Rawalpindi.

2. Brief facts of the case are that the appellant's suit for pre-emption was dismissed on the ground that the conditions regarding Talb-e-Muwathibat' as required by section 13(2) of the Punjab Pre- emption Act (No,IX of 1991) (hereinafter called as the Act) were not satisfied, therefore, the appellant's right of pre-emption had been extinguished. This finding was upheld by the learned appellate as well as by a learned Judge in Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi.

3. The learned Single Judge apart from taking notice of the averments made in the plaint and taking cognizance of other infirmities and contradictions in the evidence of the appellant relied upon the law laid down by this Court in Zafar Ali v. Zainul Abidin and another (1992 SCM R 1886) and went on to observe:- "A perusal of the evidence produced on record clearly shows that there is absolutely no evidence on record to prove that the plaintiff-pre-emptor has made `Talb-e-Muwathibar before making of the Talbi-Ishhad, therefore, it stands established that no actionable superior pre-emptive right comes into existence on the basis whereof preemption suit could have been filed."

Another contention of the learned counsel for the appellant before the High Court that service of notice under section 13 of the Act was a substitute for making of 'Talb-i-Muwathibae was repelled and referring to the case of Haji Rana Muhammad Shabbir Ahmad Khan ' v: Government of Punjab Province, Lahore (PLD 1994 SC 1) it was held that notice within the contemplation of section 31 of the Act has nothing to do with the making of `Talb-i-Muwathibat.'

4. . Leave to appeal was granted to consider the question whether the evidence adduced by the appellant in the Trial Court "amounts to `Talb-iMuwathibar. .

5. Mr. Muhammad Munir Peracha, learned counsel for the appellant, contended that the lower Courts and the learned Judge in Chamber of the High Court had erred in law in holding that there was no evidence to establish making of `Talb-i-Muwathibat'.

6. We have gone through the evidence adduced by the appellant in the Trial Court. The appellant has stated that on coming to know of the sale transaction in dispute he sent two persons to the house of the respondent with a message that he should restore the land on receipt of money but the respondent refused to comply with his demand. On the return of those persons he served the respondent with notice Exh. P. 1 through his counsel. Notwithstanding the failure of the appellant to name those two persons who had been sent to the house of the respondent, the appellant in his statement in the Trial Court has not specifically stated as to when he got the knowledge of the sale transaction in dispute and where had he made such a declaration. In point of fact, what the appellant has stated in the Trial Court was that he had sent two persons to the house of the respondent. . The element of making 'of a demand in the form of a declaration within the contemplation of section 13(2) of the Act in the `Majlis' wherein he got the knowledge of the sale transaction in dispute is lacking. In Zafar Ali's case (supra) whereupon the learned Judge in Chamber has placed implicit reliance, this Court while referring to the case of Malik Said Kamal Shah (PLD 1986 SC 360) had emphasized that as soon as the plaintiff learns about the sale he would "without any delay immediately declare that he would exercise the right of Shufa against the said sale" and further that this declaration shall have to be made before the dispersal of the Majlis in which the plaintiff gains the knowledge about the sale.

7. In this case, as held by the High Court, the above explained condition was not satisfied by the appellant, therefore, requirement of `Talb-iMuwathibae remained unsatisfied. .

8. The learned counsel for the appellant then reiterated his second contention which he had raised before the High Court that service of notice under section 31 of the Act was enough of a compliance of the requirement of `Talb-i-Muwathibar. . The learned Judge in Chamber has again rightly relied upon the law laid down by this Court on the scope .Of section 31 of the Act in the case of Haji Rana Shabbir Ahmad Khan (supra) wherein it has been held that the requirement of all the three Tellabs forms a substantive part of Islamic law of pre-emption and failure to make Talabs at their proper time results in extinguishing the very right of pre-emption. Keeping in view the dictum of this Court as aforesaid, it would be noticed that the three Tellabs envisaged by section 13 of the Act are the substantive part of the Islamic law of pre-emption whereas notice contemplated under section 31 of the Act is the statutory requirement under the Act having no nexus with the requirement of compliance of the aforesaid Talabs. Second contention of the learned counsel is also not tenable.

9. Thus, in this case the impugned judgment for the aforesaid reasons is unexceptionable. This appeal having no merit is accordingly dismissed. The parties shall, however, bear their own costs. .