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.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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