2022 C L C 1382
[Balochistan]
Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ
BEVERGH KHAN ----Appellant
Versus
SURAT KHAN and 7 others ----Respondents
Regular First Appeal No.(S)13 of 2017, decided on 16th February, 2021.
(a) Islamic law ---
----Pre -emption, right of ---Scope ---Co -sharer ---In Balochistan Province, the right of pre -
emption was governed by S.231 of Muhammadan Law wherein co- sharer, a participator in
amenities and in appendages and owner of adjoining immoveable property was entitl ed for
such right.
(b) Islamic law ---
----Pre -emption, right of ---Adjacent suit -land---Contents of the plaint revealed that the
appellant pre -emptor had simply stated that his property was situated adjacent to the land- in-
dispute without giving any descr iption of the property- in-question---Vendees claimed in their
written -statement that suit- land was not adjacent ---Simple statement of pre -emptor was not
enough to establish his entitlement to claim the suit- land through right of pre -emption ---Suit
for pre -emption was rightly dismissed ---Appeal was dismissed.
(c) Islamic law ---
----Pre -emption, right of ---Talab -i-Muwathibath ---Scope ---Plaint of the appellant (plaintiff)
neither contained the date, time and place of performance of Talab -i-Muwathibath nor the
appellant mentioned the same in his evidence, which was contrary to law ---Suit for pre -
emption was rightly, dismissed---Appeal was dismissed.
(d) Islamic law ---
----Pre -emption, right of ---Talab -i-Muwathibath ---Jumping demand--- Scope ---Appellant/pre -
emptor stated that when he learnt about the sale, there after inquiry and investigation, he
approached the vendees and in the presence of witnesses demanded to hand over the suit -
land but they refused ---Pre-emptor, in his statement, had not uttered a single w ord that on
learning about the sale he made Talab -i-Muwathibath in the same Majlis ---Talab -i-
Muwathibath should be made as soon as the fact of sale was known to the claimant ---Suit for
pre-emption was rightly dismissed ---Appeal was dismissed, in circumsta nces.
Shams -ur-Rehman for Appellant.
Muhammad Jamil for Respondents.
Date of hearing: 7th January, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ----This Regular First Appeal (RFA) has been filed
under section 96, C.P.C. against the judgment and decree dated 12.09.2017 (hereinafter "the
impugned Judgment") passed by learned Majlis -e-Shoora, Kohlu, (hereinafter "the trial
court") in civil suit No.02 of 2016 whereby suit filed by the appellant (plaintiff) was dismissed.
2. Succinctly the facts of the case are that the appellant (plaintiff) filed a suit for pre -
emption in the court of learned Majlis -e-Shoora, Kohlu, with the averments that the appellant
(plaintiff) is a landlord by profession having Khatta No.32 and Khatooni Nos.82 to 85, situated at Karam K han City and this Khatta, Khatooni belongs to 25 Kittat, measuring about
548 Rod, 39 Poles, which is a joint property of the brothers. While Khatta and Khatooni adjacent to the property of the appellant (plaintiff) is owned by the respondent/defendants Nos.1 to 5 and the source of water of these lands is joint. It is further averred in the plaint
that one month ago the respondent/defendants Nos.1 to 5 without any intimation or information and notice have sold out their property to the respondent/defendants Nos.6 to 8
amounting to Rs.11,00,000/ - and after information and investigation, when the appellant
(plaintiff) confirmed on the facts, he immediately claimed his right of Pre -emption before the
witnesses, but the respondents/defendants have refused.
3. The respondents resisted the suit being defendants. While submitting their written
statements they controverted the assertions contained in the plaint. From divergent pleading of the parties, were framed five issues.
4. After framing of issues the parties pro duce their respective evidence and on
completion of the same the suit of the appellant (plaintiff) was dismissed vide judgment dated 12.09.2017 by the trial court. Whereafter the instant appeal has been filed.
5. We have heard learned counsel for the parti es and have gone through the available
record with their able assistance.
6. The claim of the appellant (plaintiff) is for possession of the land in question through
'Right of Pre -emption'. In Balochistan, the 'Right of Pre -emption' is governed by section 231
of the Muhammadan Law wherein co -sharer, a participator in amenities and in appendages
and owner of adjoining immovable property is entitled for such right: Section 236 of the law prescribed in the procedure for performance of payment of 'Right of Pre -emption' as under: -
"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 same. This formality is called Talb -i-Mowasibat (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 Talb- i-Mowasibat had already been made (a), and has made formal
demand -
(a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale (b), and
(b) in the presence at least of two witnesses
(c). This formality is called Talb -i-Ishhad (demand with invocation of witnesses) (d)".
7. Perusal of the contents of the plaint would reveal that the appellant (plaintiff) has
simply stated that the land of the appellant (plaintiff) is situated adjacent to the land in dispute. On the other hand, the claim of the appellant (plaintiff) was disputed by the respondents/defendants while filing their written statements and stated that the property in
dispute is not adjacent to the property of the appellant (plaintiff). The appellant (plaintiff) does not give any description of the property in question. By simply saying that the land of the appellant (plaintiff) is adjacent to the land in question is not enough to establish his
entitlement to claim the property in dispute through 'Right of Pre -emption'.
8. Besides the performance of demand of `Right of Pre -emption' is hyper technical. It is
necessary for the person who is claiming such right to establish that the demands have been performed in a manner provided by section 236 of the Muhammadan Law. In this behalf, the pre-emptor must declare his/her intention to assert the right, immediately on receiving
information about the sale of a property. It is literally called as Jumping Demand, which is
known as Talb- i-Mowasibat. Thereafter, the pre -emptor has to perform his second demand
either in the presence of the buyer or the seller or at the pr emises which is the subject of the
sale, in the presence of at least two witnesses, which is called Talb -i-Ishhad. It is important
to mention here that before performing second demand, the pre -emptor must give reference
of claiming of the first demand to t he witnesses, informing them that he/she has already
performed his/her first demand accordingly. Such reference is a condition precedent, without which, Talb -i-lshhad is incomplete. Hence the formalities for the performance of demand
must be strictly obser ved.
9. It is an admitted feature of the case that neither the plaint contain the date, time of
performance of Talb nor the plaintiff/appellant in his evidence mentioned the date, place and time of performance Talb -i-Mowasibat which is contrary to the sett led law. The
appellant/plaintiff stated in the suit that they were learnt about the sale and after inquiry and investigation he approached the defendants/respondents in the presence of the witnesses to hand over the property to him, but the same was refuse d. There is, no evidence on record
which establish that the appellant/plaintiff performed the first demand of the pre -emption
when he knew about the sale of the property. Moreover, in his statement, the appellant/plaintiff has not uttered a single word tha t on learning about the sale he made Talb-
i--Mowasibat in the same majlis.
10. It is evident from the perusal of the contents of the plaint that essential particulars as
to the performance of Talbs, i.e. date, place and time had not been mentioned. According to
the plaintiff/appellant, he performed Talb -i-Mowasibat. It is vague, uncertain expression,
lacking precision and does not fulfill the statutory requirement. It is now settled law that
particulars as to the performance of Talb- i-Mowa sibat with reference to the date, place and
timing should necessarily be mentioned in the plaint, therefore, making of Talb- i-Mowasibat
which necessary for the suit for pre -emption could not be proved. The law says that Talb- i-
Mowasibat should be made as s oon as the fact of the sale is known to the claimant; therefore,
the exact date and time of the performance of said demand must be clearly mentioned in the plaint.
In view of the above, the learned counsel for the appellant/plaintiff has failed to point
out any illegality or irregularity, misreading and non- reading of evidence in the impugned
judgment passed by the learned trial court, thus, the petition being devoid of any merits is dismissed with no order as to costs.
Decree Sheet be drawn separately.
MQ/73/Bal. Appeal dismissed.
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