2012 C L C 125
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
Moulvi NAQAL -UD-DIN ----Appellant
Versus
ABDULLAH and 2 others ----Respondents
Civil Miscellaneous Appeal No.4 of 2009, decided on 28th July, 2011.
(a) Balochistan Civil Disputes (Shariat Application) Regulation, 1976 --
----S. 4 ---Pre-emption right ---Talbs, performance of ---Talb -e-Muwathibat and Talb -e-
Ishhad ---Object and scope ---Transaction not sale ---Exchange of land ---Pre-emptor
assailed transaction in question asserting his superior right of pre -emption but Trial Court
dismissed the suit ---Pre-emptor cont ended that transaction between the parties was sale
but in order to defeat his pre -emptive right the same had been shown as an exchange ---
Validity ---No person was entitled to right of pre -emption unless he had made requisite
Talbs in accordance with law ---Talb -e-Muwathibat meant jumping demand on behalf of
pre-emptor showing his intention to assert the right immediately on receiving information
of sale without any loss of time ---Pre-emptor was required to prove performance of Talb -
e-Ishhad referring express ly to the fact that Talb -e-Muwathibat had already been made in
a manner indicating that at relevant time, he had expressed in time his right of pre -
emption in presence of witnesses ---Talb -e-Muwathibat and Talb -e-Ishhad were not mere
formalities and were to be strictly observed and followed ---Pre-emptor during cross -
examination admitted transaction between the parties as exchange ---Transaction in
question was exchange and not pre -emptible ---Pre-emptor failed to prove factum of right
of pre -emption and his ev idence was not up to the mark ---Pre-emptor also failed to point
out any illegality, error or jurisdictional defect in judgment passed by Trial Court ---High
Court declined to interfere in the judgment and decree passed by Trial Court ---Appeal
was dismissed in circumstances .
Malik Nazar Muhammad v. Haji Abdul Rauf and others PLD 1992 Quetta 9 rel.
(b) Transfer of Property Act (IV of 1882) ---
----S. 54 ---'Sale' ---Essential elements ---Four essential elements of sale the parties, the
subject -matter, the transfer of or conveyance and price and consideration ---If any of the
elements is missing, it cannot be transaction of sale ---For a transaction to be a sale, it is
necessary that price in cash must have been paid for things sold ---Ownership in a thing
on one side and cash price for it on the other must exist.
Gohar Yaqoob Yousafzai for Appellants.
Iqbal Ahmed Kasi for Respondents.
Date of hearing: 1st July, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- Through this appeal under
section 4(3) of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976, the
appellant has challenged the legality of the judgment and decree dated 26th February,
2009, passed by the Majlis -e-Shoora, Loralai, whereby suit for possession through pre-
emption, filed by the appellant, was dismissed.
2. The concise facts, arising out of the record, are that the appellant has filed a suit
for possession through right of pre -emption against the respondents/defendants exercising
his superior rights with regard to properties bearing Khasra Nos. 366 and 356, measuring
7232 and 6500 sq.ft. respectively, situated at Mahal Kam Karez, Halqa Saddar, Tehsil
Muslim Bagh, which was sold/exchanged by the vendor to the defendants. The appellant
claimed that on the ba sis of "Haqooq Sharb Khas" and "Haqooq Tareek Khas" had
superior rights to pre -empt the property and though he preferred the requisite Talbs, but
the respondents refused to deliver the possession of the pre -empted properties, compelling
him to institute th e suit.
3. The suit was contested by the respondents/defendants by filing written
statement, wherein various legal and factual pleas were raised. From the pleadings of the
parties, the following issues were framed: ---
4. The appellant, to prove his claim, produced five witnesses and also got recorded
his own statement, whereas the respondents/ defendants, in rebuttal, produced two
witnesses and also got recorded their statements through attorney.
5. After recording pro and contra evidence of the par ties and hearing rival
arguments, the trial court dismissed the suit vide impugned judgment and decree
dated 26th February, 2009, hence this appeal.
6. I have heard the arguments from both sides, considered the same and perused the
record with the valuable assistance of the learned counsel for the parties.
Mr. Gohar Yaqoob Yousafzai, learned counsel for the appellant, argued that the
suit property is situated adjacent to the appellant's property, thus, he in exercise of right
of pre -emption, after performance of the requisite demands approached the respondents
for handing over the possession of property against the sale consideration, but they
refused. He contended that the appellant has, immediately, performed Talb -e-Muwasibat
and, without any del ay, in presence of the witnesses, also performed Talb -e-Ishhad, but
the trial court has materially erred by holding hat the appellant has failed to establish the
performance of requisite Talbs and that the evidence has not been appreciated according
to the principles laid down for appreciation of evidence in the civil cases. He further
contended that in fact the transaction between respondents was a sale, but, in order to
defeat his pre -emptive right, it has been shown as an exchange.
On the other hand, th e learned counsel for the respondents/ defendants Mr. Iqbal
Ahmed Kasi, Advocate, submitted that the appellant has failed to establish his right and
the court below, on proper appraisal of evidence, rightly dismissed the suit being not
maintainable. Apart from that, the appellant has failed to perform the requisite demands
in accordance with law and the conclusion, so arrived at by the trial court, is absolutely
correct, thus, his suit was rightly dismissed. The impugned judgment does not suffer from
any mi sreading or non -reading of evidence, seeking interference and appeal being without
any merit may be dismissed.
7. It is the case of the appellant in plaint as well as in his court -statement that a few
days ago, he came to know about the exchange of propert ies measuring 6500 and 7232
sq.ft. respectively, out of Khasra Nos.356 and 366 between respondent No.1 and
respondents Nos.2 to 6. As per appellant, the said information regarding the exchange of
pre-empted property was conveyed to him on 15 th June, 2008 by one Haji
Muhammad son of Mulla Shereen and after receiving the said information, he
immediately, performed Talb -e-Muwasibat and, thereafter, in presence of two
witnesses also performed Talb -e-Ishhad.
8. It appear s from record that neither Haji Muhammad son of Mulla Shereen has
been produced before the court in order to establish the performance of Talb -e-
Muwasibat, nor the plaint purports the names of two persons, in whose presence Talb -e-
Ishhad was, allegedly, pe rformed. The appellant, in order to prove the core issue
regarding performance of Talb -e-Muwasibat and Talb -e-Ishhad, produced P.W.1 Abdul
Ghafoor and P.W.2 Allah Noor. The witnesses have not deposed as to when and what
time they had informed the responden ts about the sale of pre -empted properties and on
what manner they performed first demand and thereafter second demand with reference to
the first demand. There is glaring contradiction between the statement of both the
witnesses regarding date and time wh ile informing the respondents. Even the appellant,
while deposing regarding Talb -e-Ishhad, has made no reference to Talb -e-Muwasibat.
9. Admittedly, law requires that no person is entitled to the right of pre -emption,
unless he has made the requisite Talbs in accordance with law. Talb -e-Muwasibat means
jumping demand, on behalf of pre -emptor, showing his intention to assert the right
immediately on receiving information of sale without any loss of time. The pre -emptor is
required to prove performance of Tal b-e-Ishhad referring expressly to the fact that Talb -
e-Muwasibat had already been made in a manner indicating that at the relevant time, he
had expressed in time his right of pre -emption in presence of witnesses. Talb -e-
Muwasibat and Talb -e-Ishhad are not mere formalities and to be strictly observed and
followed as held in the case Malik Nazar Muhammad v. Haji Abdul Rauf and others -
reported in PLD 1992 Quetta 9 and the operative portion whereof is reproduced
hereinbelow for ready reference: ---
"It is imper ative for the pre -emptor to prove performance of Talb -e-Ishhad in such
manner that it should indicate that at the relevant time pre -emptor called the
witnesses to attest that earlier Talb -e-Muwasibat was made in their presence
instantly/immediately by the claimant, and the pre -emptor should also attribute
such words which would be sufficient to gather his intention that he made Talb -e-
Muwasibat earlier and again while performing Talb -e-Ishhad he is demanding his
right of pre -emption in presence of witnesses ".
10. In the instant case, as observed hereinabove, neither Haji Muhammad, in whose
presence first Talb was made, has been produced before the trial court to substantiate the
version of appellant, nor the plaint purported the names of witnesses in respect of second
Talb, meaning thereby they are planted subsequently after institution of the suit. Needless
to say that both the witnesses, including plaintiff/appellant have made no reference to
Talb -e-Muwasibat at the time of making second Talb i.e. Talb -e-Ishhad. They have
contradicted each other on each and every material aspects regarding Talbs. It is worth to
mention here that, while drafting a plaint, the pre -emptor must incorporate the names of
witnesses, in whose presence, demands have been cla imed, but the instant plaint is
completely silent regarding the names of witnesses.
11. Another material issue between the parties is, whether impugned transaction,
between respondent No.1 and respondents Nos.2 to 6, is, in fact, sale or exchange? In this
respect, it would be advantageous to reproduce herein below section 118 and section 54
of the Transfer of Property Act: --
118. "When two persons mutually transfer the ownership of one thing for the
ownership of another, neither thing or both thing s being money only, the
transaction is called exchange".
54. "Sale Defined". "Sale" is transfer of ownership in exchange for a price paid or
promised or part -paid promised."
12. From bare perusal of the above provision of law, it is clear that there are fo ur
essential elements of sale i.e. (i) the parties, (ii) the subject matter, (iii) the transfer of or
conveyance and (iv) price and consideration, and if any of the elements is missing, it shall
not be transaction of sale. For a transaction to be a sale, i t is necessary that price in cash
must have been paid for the things sold. There must be ownership in a thing on one side
and cash price for it on the other. The claim of the appellant that transaction in dispute as
a sale seems to be misconceived, as he h as not been able to indicate/establish the
circumstances, proving the transaction as a sale. Apart from it, the appellant during
cross -examination has admitted the transaction between the respondents as an
exchange. In such circumstances, no option i s left with me, but to infer that the
transaction between the respondent No.1 and respondents No.2 to 6 was an exchange and
not pre -emptible.
What has been discussed hereinabove, the appellant has absolutely failed to prove
the factum of right of pre -empt ion and his evidence is not up to the mark. The learned
counsel for the appellant has failed to point out any illegality, error or jurisdictional
defect in the judgment impugned herein passed by the trial court, thus, I am not inclined
to accept the appeal , which is, accordingly, dismissed. Resultantly, impugned judgment
and decree dated 26th February, 2009, passed by the Member, Majlis -e-Shoora, Loralai is
upheld.
These are the reasons of my short order dated 1st July, 2011 announced in the
open court.
M.H./111/Q 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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