Iltaf Qadir V. Mst. Mehar Nigar and another,
Bench: Rozi Khan Barach
📝 AI Summary — Plain-Language Overview
This case concerns a dispute over the Islamic law right of pre-emption, known as Shufa, which allows certain people—such as co-owners, neighbours, or those sharing rights in a property—to claim priority to purchase land that has been sold to someone else. The petitioner, Iltaf Qadir, claimed this right over land sold by one respondent to another, arguing his own property was adjacent to the disputed land. His suit was dismissed by the trial court and the appellate court, leading him to file this revision petition before the Balochistan High Court.
The High Court upheld the dismissal. It found two major problems. First, the petitioner failed to properly describe or prove that his land was actually adjacent to the disputed property; in fact, record evidence suggested the properties were in different, non-adjoining areas. Second, pre-emption claims require strict compliance with specific legal formalities: an immediate first demand (Talb-i-Muwathibat) made right after learning of the sale, followed by a formal second demand (Talb-i-Ishhad) made before witnesses, explicitly referencing that the first demand had already been made. The petitioner's plaint lacked essential details—names of witnesses, and the exact date, time, and place these demands were made—making it impossible to prove he had followed the required procedure.
The court ruled these technical requirements are mandatory, not optional, and since they were not met, the suit was correctly rejected. The case reinforces how strictly courts enforce procedural formalities in pre-emption claims under Islamic law.
یہ مقدمہ اسلامی قانون کے تحت حقِ شفعہ کے تنازع سے متعلق ہے، جسے شفعہ کہا جاتا ہے، اور جو بعض مخصوص افراد کو—جیسے شریک مالکان، ہمسائے، یا وہ افراد جو کسی جائیداد میں حقوق میں شریک ہوں—اس بات کا حق دیتا ہے کہ وہ کسی اور کو بیچی گئی زمین کو ترجیحی بنیادوں پر خریدنے کا دعویٰ کر سکیں۔ درخواست گزار، التاف قدیر، نے ایک مدعا علیہ کی جانب سے دوسرے مدعا علیہ کو بیچی گئی زمین پر یہ حق مانگا، اور دعویٰ کیا کہ ان کی اپنی جائیداد متنازعہ زمین سے متصل ہے۔ ان کا دعویٰ ٹرائل کورٹ اور اپیلٹ کورٹ دونوں نے خارج کر دیا، جس کے بعد انہوں نے بلوچستان ہائی کورٹ میں یہ نظرثانی درخواست دائر کی۔
ہائی کورٹ نے اس خارجی فیصلے کو برقرار رکھا۔ عدالت نے دو بڑے مسائل کی نشاندہی کی۔ پہلا یہ کہ درخواست گزار یہ بات مناسب طریقے سے بیان یا ثابت کرنے میں ناکام رہے کہ ان کی زمین واقعی متنازعہ جائیداد سے متصل تھی؛ بلکہ ریکارڈ
Generated from the full judgment text below — not a substitute for reading the actual opinion.
2020 M L D 1626 [Balochistan (Sibi Bench)] Before Rozi Khan Barrech, J ILTAF QADIR---Petitioner Versus Mst. MEHAR NIGAR and another ---Respondents Civil Revision No.(S) 47 of 2018, decided on 18th March, 2020. Islamic law --- ----Pre -emption suit---Requirements ---Suit property not adjacent to the property of pre - emptor ---Plaintiff had not mentioned the description of suit land in his plaint ---Pre-emptor before performing Talb- i-Ishhad must give reference of first demand to the witnesses inform ing them that he/she had already performed his/her first demand accordingly--- Such reference was a condition precedent without which Talb -i-Ishhad was incomplete ---Pre - emptor had not mentioned the names of witnesses in the plaint in whose presence Talb- i- Muwathibat and Talb- i-Ishhad were performed and no date, time and place of said talbs in the plaint were mentioned ---Plaintiff was bound to have mentioned date, time and place of performance of Talb -i-Muwathibat in the plaint ---Pre-emptor had failed to esta blish performance of Talb -i-Muwathibat, in circumstances ---Trial Court had rightly rejected plaint filed by the plaintiff ---Revision was dismissed, in circumstances. Abdul Khalid Sumalani for Petitioner. Sabir Ali Jamali and Bilal Haider for Respondents. Date of hearing: 13th March, 2020. JUDGMENT ROZI KHAN BARRECH, J. ---Brief facts in the instant Civil Revision Petition are that suit for declaration, possession through pre -emption and permanent injunction was filed by the petitioner/plaintiff, the same was contested, and the learned Senior Civil Judge, Usta Muhammad (hereinafter "the trial Court") vide order and decree dated 29.05.2018 (hereinafter "the Order") dismissed the suit of the plaintiff/petitioner under Order VII, Rule 11, C.P.C. On appeal the learned District Judge, Usta Muhammad (hereinafter "the appellate Court") vide judgment and decree dated 07.11.2018 (hereinafter "the impugned Judgment) upheld the judgment and decree passed by the trial Court. Hence this Civil Revision.
2. I have heard t he learned counsel for the petitioner as well as respondents at considerable length and also perused the record with their able assistance.
3. The claim of the petitioner/plaintiff is for possession of the land in question through 'Right of Pre -emption'. I n Balochistan, the 'Right of Pre -emption' is governed by section 231 of 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 prescribes the procedure for performance of demands 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 formali ty 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)".
4. Perusal of the contents of the plaint would reveal that the petitioner/plaintiff has simply stated that the land of petitione r/plaintiff is situated adjacent to the land in dispute. In this behalf, the document i.e. the mutation entries which was attached with the plaint show that the property of the petitioner/plaintiff is situated in Mouza Chak 38 and 40. On the other hand, the disputed property is situated in Mouza Chak 39 which is not adjacent to the property of petitioner/plaintiff. The petitioner/plaintiff does not give any description of the property in question. By simply saying that the land of the petitioner/plaintiff i s adjacent to the land in question is not enough to establish his entitlement to claim the property in dispute through 'Right of Pre -emption'. The petitioner/plaintiff has failed to establish his entitlement regarding 'Right of Pre -emption'.
5. Besides, th e performance of demand for the '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 Talh- i-Mowasibat. Thereafter, the pre -emptor has to perform his second demand either in presence of the buyer or the seller or at the premises which is the subject of sale, in presence of at least two witnesses, which is called Talh -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 the witnesses, informing them that he/she has already performed his/her first demand accordingly. Such reference is a condition precedent, without which, Talb -i-Ishhad is incomplete. Hence the formalities for performance of demands must be strictly observed.
6. In the plaint, the petitioner/plaintiff stated that the respondent/defendant No.1 sold out the property in dispute to respondent/defendant No.2 and also made entries vide Mutation No.47 dated 24.11.2017 and transferred the same to the name of respondent No.2/defendant (Vendee) in a concealing manner. On the other hand, the suit was filed in the year 2018. The petitioner/plaintiff also stated in the plaint that few days ago when he came to know about the said mutation entries he in presence of his tenants performed Talb -i-Mowasibat and it further contended that thereafter he went to disputed property and claimed Talb- i-Ishhad in presence of the said tenants. On the other hand, the names of the said witnesses are not mentioned in the plaint in whose presence the petitioner/plaintiff performed Talb- i- Mowasibat and Talb -i-Ishhad. It is evident from the perusal of the contents of the plaint that essential particulars as to performance of Talb s i.e. date; place and time had not been mentioned. According to the plaintiff 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 performance of Talb -i-Muwathibat with reference to the date, place and timing should necessary be mentioned in the plaint, therefore making of Talb- i- Muwathibat which necessary for the suit for pre -emption could not be proved. The law says that Talb -i-Mowa sibat should be made as soon 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. The learned appellate as well as trial Court in view of the above has rightly rejected the plaint filed by the petitioner/plaintiff. No interference by this Court is required in the concurrent findings of both the Courts below. Instant civil revision is dismissed. ZC/71/Bal. Revision dismissed.