2014 C L C 1323
[Balochistan]
Before Muhammad Ejaz Swati and Muhammad Noor Meskanzai, JJ
NASRULLAH ----Appellant
Versus
MUHAMMAD RASOOL and 7 others ----Respondents
Regular First Appeal No.171 of 2010, decided on 30th April, 2014.
Islamic law ---
----Pre -emption ---Talbs ---Talb -e-Muwathibat ---Essentials ---Date, time and names of witnesses
were not mentioned in the plaint ---Plaintiff made contradictory statements as to when he came to
know about the sale transaction---Plaintiff having not pl eaded in the plaint assertion of right of
pre-emption in the presence of witnesses, could not be allowed to set out a new case beyond the
scope of his pleadings ---Right of pre -emption would be extinguished where plaintiff did not
make talbs in accordance w ith law ---Talb -e-Muwathibat, the first demand had to be made in the
same meeting ---Plaintiff, in the present case, neither declared his intention nor asserted the right
of pre -emption immediately after receiving information of sale rather he went to the su it-land to
claim right of pre -emption in the presence of notables which did not constitute Talb- e-
Muwathibat in accordance with law ---Plaintiff did not satisfy the requirements of Talb -e-
Muwathibat ---Appeal was dismissed.
2008 SCMR 1682; Muhammad Ashra f v. Muhammad Tahir and 6 others 1990 MLD
2399 and Zafar Ali v. Zainul Abidin and another 1992 SCMR 1886 rel.
Mehmood Sadiq Khokar for Appellant.
Naseer Ahmed Bangulzai, Addl. A.- G. for Official Respondent.
Date of hearing: 25th March, 2014.
JUDGMENT/ORDER
MUHAMMAD EJAZ SWATI, J. --- This Regular First Appeal has been directed
against the judgment and decree dated 17th August, 2010 (hereinafter the "impugned judgment")
passed by Judicial Magistrate -IX/Civil Judge, Quetta (hereinafter the "tr ial court") whereby suit
for possession through pre -emption and cancellation of Mutations Nos.430, 438, filed by the
appellant was dismissed.
2. The facts of the case are that appellant (plaintiff) preferred a suit for pre- emption against
the respondent pre -empted the sale and exchange of land bearing Khasra number 8 kita
measuring 11 rods 8 poles situated in Mohal Karez Kohina Nasar, Mouza Karezat, Tappa
Kuchlak, Tehsil Sadar District Quetta (hereinafter the "suit property"). It is averred in the plaint
that adjacent to the property of appellant, the respondents Nos.2 to 6 (defendants) have secretly
sold out suit -land measuring 23300 sq. ft. to respondent No.l/defendant who is a stranger, in
consideration of Rs.7,50,000 vide Mutation No.398 dated 16th Dec ember, 2008 and respondent
No.1 vide Mutation No.438 dated 2 -2-2009 through exchange, transferred the suit -land to
respondent No.7/defendant and the cost of land exchanged shown Rs.20,00,000. The appellant
further averred in the plaint that for the first time he came to know about the sale transaction and
exchange of land in question when respondent No.7 all of a sudden started erection of wall on
the land and soon after the knowledge of such transaction amongst the respondents, the appellant
asserted his r ight of pre -emption. The respondents filed their joint written statement and
contested the suit by raising legal objection as well as on merit.
From the divergent pleadings of the parties following issues were framed: ---
"(1) Whether the suit of the plaintiff is not maintainable in view of legal objections A, B, C
and D raised by defendants Nos.1 and 7 in their joint written statement?
(2) Whether the plaintiff has made the requisite demand (Talbs) in accordance with law?
(3) Whether plaintiff is e ntitled to the relief claimed for?
(4) Relief?"
3. The appellant produced seven witnesses and recorded his statement. In rebuttal
respondent produced two witnesses respondents Nos.1 and 7 recorded statements through
attorney Rehmatullah, while responde nts Nos.2 to 6 and 8 were proceeded ex parte. The learned
trial court after hearing arguments dismissed suit vide impugned judgment, hence this appeal.
4. The learned counsel for appellant contended that plaintiff through P.W.- 1 and P.W.- 5 has
proved the required Talb, but this important aspect of the matter remained unnoticed by the trial
Court which caused grave prejudice to appellant; that the learned Judge of the trial Court without
examining and discussing evidence on record, has drawn conclusion, therefore, impugned
judgment suffers from misreading and non- reading of evidence; that the impugned judgment also
suffers from misinterpretation of law, as such the judgment and decree is to be set aside; that
impugned judgment and decree are contrary to Order XX, Rule 5, C.P.C.
As against this, the learned counsel for respondent contended that appellant has failed to
prove required Talb; that plaint is silent about place of making of Talb, particularly there is no
mention of Talb- e-Muwathibat; that plaintiff has failed to establish his superior right of pre -
emption; the evidence and statement of appellant are beyond pleading.
5. We have heard the learned counsel for the parties and have gone through evidence on
record. The appellant produced Exh.P/5 whic h indicates that respondents Nos.2 to 6 vide
Mutation No.398 dated 16th December, 2009 have sold the property bearing Khasra No.8 kita
measuring 23300 sq. ft. to respondent No.1. Exh.P/6 further reveals that respondent No.1 vide
Mutation No.438 dated 2nd F ebruary, 2009 transferred the aforesaid property in favour of
respondent No.7 by way of exchange. We find that appellant through Muhammad Anwar (P.W.-
1) and Naimatullah (P.W.- 5) has brought on record the factum of assertion of his right of pre -
emption, acc ording to these P.Ws. that in the month of July, 2009 at about 2:00 P.M.,
Muhammad Rasool, Habibullah and Muhammad Hassan (Respondents) had started work on the
land in question as soon as when Muhammad Hassan told to appellant about the sale transaction
in favour of respondents Nos.1 and 7, he immediately asserted his right of pre -emption and
offered the price of land but Muhammad Hassan replied that they have sold the land in question
to Muhammad Rasool and Habibullah, further purchased this land from Muha mmad Rasool. The
appellant in his statement has also narrated the same facts. The statement of appellant and his
above two witnesses in respect of asserting right of pre -emption cannot be taken into
consideration on many counts, firstly the appellant and t heir above two witnesses, though have
stated that in the month of July, 2009 the appellant, soon after coming to know about the
sale/exchange transaction amongst the respondents had asserted his right of pre -emption. Yet in
the plaint at Paragraph No.10 it is mentioned that on 6th August, 2009 for the first time
respondent No.7 started erection of wall on the land in question, therefore, the statements suffer
from serious discrepancies. Secondly the date, time and names of witnesses are not mentioned in
the plaint. Thirdly, in the plaint at Para No.7 it is pleaded that soon after the knowledge of said
transaction amongst respondents the appellant along with two notables of the area went on the
land in question and asserted his right of pre -emption, whereas i n the evidence it is stated that
appellant came to know about sale transaction when he reached on the land in question. From the
plaint filed by the appellant it transpired that assertion of right of pre -emption by the appellant in
the presence of witnesse s and in the manner as deposed in the evidence was not pleaded and in
such situation the deposition of the appellant and P.W.- 1 and P.W.- 5 under the law are taken out
of consideration because no one can be allowed to set out a new case beyond the scope of his
pleadings. Reference in this respect is to be made to case titled 2008 SCMR 1682 wherein the
honourable apex Court held as under: ---
"As regards the contention raised by the learned counsel for the respondent, suffice it to
say, that a litigant cann ot be allowed to improve his case in the evidence which was not set up in
the pleadings. It is settled law that a litigant had to first plead facts and pleas in pleadings and
then to prove the same through production of evidence. Admittedly, the respondent failed to give
the details in the plaint about the date, time and place of performance of Talb- i-Muwathibat and
thus he could not be allowed to prove his case through production of witnesses, which was not
pleaded in the plaint. As a matter of fact, the l earned trial Court after examining the pleadings of
the parties should not have allowed the respondent to lead the evidence on the facts not alleged
by him in the plaint and even if the evidence was allowed to be recorded, it should not have been
considere d as evidence in the case by the Appellate Court and the learned High Court. The
stance of the learned counsel is devoid of any consideration. "
6. Other important aspects of the case are that required Talbs have not been made according
to personal law. The right of pre -emption of a person shall be extinguished unless such person
make demand of pre -emption in the following: ---
"Demands for pre -emption ---No person is entitled to the right of pre -emption unless ---
(1) he has declared his intention to a ssert the right immediately on receiving information of
the sale. This formality is called Talb -e-Muwathibat (literally, demand of jumping, that is,
immediate demand): and unless;
(2) he has with the least practicable delay affirmed the intention referri ng expressly to the
fact that the Talb -e-Muwathibat 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 Talb -i-Ishhad (demand
for with invocation of witnesses).
(c) Talb-e-Khusumat." Means demand for filing a suit."
7. The above would make it clear that first demand Talb -e-Muwathibat is to be made in the
same meeting and without loss of any time, in the present case the appellant at paragraphs Nos.7
and 10 of the plaint has pleaded as under: ---
"That soon after the knowledge of said transaction among the defendants, the plaintiff
along with the two notables of the ar ea went on the land in question and loudly asserted his right
of pre -emption by performing jumping demand and also intimated the defendants through legal
registered A/D Notice on 11th August, 2009 about the right of pre -emption of plaintiff and the
reply o f the same is still awaited.
That the cause of action has accrued to the plaintiff against the defendants initially when
the defendants No.1 purchased the land in question from defendants Nos.2 to 6 and thereafter it
accrued when defendant No.1 transfer red the same in the name of defendant No.7 and lastly it
accrued when on 6 -8-2009 for the first time. The defendant No.7 started erection of wall on the
land in question and was requested to stop doing so who refused flatly within the jurisdiction of
this honourable Court which is competent to adjudicate upon the matter."
8. The above paras of the plaint reveal that appellant/plaintiff when learnt about the sale
transaction amongst the respondents has not declared his intention nor asserted the right of pre -
emption immediately on receiving information of the sale/exchange but he went to the suit- land
to claim right of pre -emption in the presence of notables this is not Talb- e-Muwathibat in
accordance with law. Reference can be made to Muhammad Ashraf v. Mu hammad Tahir and 6
others 1990 MLD 2399 herein it was held as under: ---
"It will be seen from the above admissions that 'Talb -e-Mowasibat' was made
immediately after the appellant came to know about this deal. According to Muslim Law by
Saksena 'Talb -e-Mowasibat' or immediate demand literally means demand of jumping by which
pre-emptor should make immediate assertion of his right on getting the information of the
transfer of the property. The expression clearly shows that the right of pre -emption must be
asserted with the utmost promptitude. The case of Monajal v. Shafiullah and others, reported in
PLD 1964 Dacca 640 (is an important authority on this subject, wherein it was held: -- 'A person
entitled to pre -emption must make the immediate claim to the right of pre -emption called Talb -e-
Muwathibat as soon as the fact of sale is known to him. The right is lost if there be any delay in
claiming it'.
After examining the available case -law on this point Idris, J. observed as follows: ---
In the present case, plaintiff did not make the immediate demand, that is, he did not
perform the ceremony of Talb -e-Mowasibat immediately on coming to know of the sale in the
Registration Office, but he went to the land at the distance of 2- 1/2 miles and there made the
claim. As the Talb -e-Muwathibat was not made instantly on coming to know of the sale, the right
of pre -emption was lost."
9. Honourable apex Court in case titled Zafar Ali v. Zainul Abidin and another 1992 SCMR
1886 held as under: ---
"The judgment in the Quetta case itself shows that the Shariat Appellate Bench of this
Court had in the case of Government of N. -W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360
emphasized that as soon as the plaintiff learns about the sale he would "without any delay
immed iately declare that he would exercise the right of Shufa against the said sale". It was
emphasized that this declaration shall have to be made before the dispersal of the Majlis in which
the plaintiff gains the knowledge about the sale. Thus before that moment if the plaintiff wants to
gain some more information it might be possible but not thereafter by making applications for
obtaining copies or making inquiries. There is a practical side to this aspect of the law; namely,
that by making 'Talb' the plaintiff will not be losing anything while not making the 'Talb' on the
one hand he would be losing the right to pre -empt and on the other he would delay first essential
notice about his intention by way of Talb -i-Muwathibat."
10. In the present case the appellant (plaintiff) soon after gaining the knowledge of sale
transaction amongst the respondents (defendants) did not perform demand of jumping instantly
but went to the suit -land along with two notables; therefore, requirement of Talb- i-Muwatibat
remained u nsatisfied and appellant lost the right of pre -emption. We are of the considered
opinion that the impugned judgment is based on valid and sound reasons, no misreading or non-
reading of evidence is involved in this case warranting interference by this court .
In view of above this appeal having no merit is accordingly dismissed.
ARK/34/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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