2011 Y L R 3013
[Quetta]
Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ
Haji MEHRAB KHAN ---Appellant
Versus
Mst. BIBI WAHIDA and others ---Respondents
Regular First Appeal 'No.48 of 2004, decided on 18th July, 2011.
Islamic law ---
----Pre-emption suit for ---Talbs, performance of -Proof -Plaint not finding mention specific
date, day and time of knowledge about sale and performa nce of Talb -e-Muwathibat ---
Notice of Talb -e-Ishhad not finding mention either date of knowledge of sale or name of
persons before whom Talb -e-Muwathibat was made ---Two witnesses examined in court
by pre -emptor were not regarding factum of such Talbs ---One witness examined in
support of factum of Talb -e-Muwathibat neither stated date, day and time of knowledg e of
sale nor named person before whom such Talb was made ---Validity ---Law required that
person before whom Talb -e-Muwathibat was made, must be nominated and specified,
thus, his statement was essential and inevitable ---Pre-emptor had failed to prove first
Talb -e-Muwathibat -Suit was dismissed in circumstances.
W.N. Kohli for Appellant.
Safdar Muhammad for Respondents.
Respondent No.13 present in person.
Date of hearing: 1st June, 2011.
JUDGMENT
MUHAMMAD NOOR MUSKANZAI, J. ---Instant appeal is directed against the judgment
and decree dated 5 -11-2004 passed by learned Senior Civil Judge -I, Quetta whereby the suit
filed by appellant has been dismissed.
2. Facts relevant for disposal of present appeal are that the appellant instituted a suit for
possession through pre -emption against respondents in the Court of Senior Civil Judge -I,
Quetta. It was averred in the plaint that plaintiff owns agricultural property measuring 2
Acres, 25 poles in Khasra Nos. 800/1308/1309, at Mohal Khushkaba Kuchlak, M ouza
Kuchlak, Tappa Kuchlak, Tehsil Saddar, District Quetta. The defendants Nos. 1 to 11 are also
owners of the property measuring 18 rods 37 poles bearing Khasra Nos. 1306 and 1307
situated at Mohal Khushkaba Kuchlak, Mouza Cuchlak, Tappa Kuchlak, Tehsil Saddar,
District Quetta. Property of defendants is adjacent to the property of plaintiff and parties are
participants in immunities and appendages. The respondents Nos.1 to 11 sold their 1/4th
share measuring 4 rods 29 poles out of the total land measuring 18 rods 37 poles in Khasra
No.1306, 1307 situated at Khushkaba Kuchlak, Monza Kuchlak, Tappa Kuchlak Tehsil
Saddar District ' Quetta to the respondents Nos.12 and 13 in equal shares for a fictitious
consideration of Rs.5,14,000 and secretly mutated the pr operty in Tehsil record on 17 -9-2002
vide mutation Entry No.342 dated 17 -9-2002. The appellant came to know about the sale
transaction on or about second week of October, 2002. Appellant immediately expressed his
intention to assert the right of `Shufa' wi thout loss of time and thereafter with least
practicable delay affirmed the said intention through `Talb -e-Ishhad, referring expressly to
Talb-e-Mawasibat' made in presence of two witnesses by taking them on the premises. Such
fact was also brought in the notice of respondents Nos.1 to 11 verbally as well as by sending
a registered notice on 16 -11-2002.
3. The respondents Nos.1 to 11 did not turn up before the trial Court, as such, they were
proceeded against ex parte.
However, respondents Nos.12 and 13 contested the suit by way of filing written statement
whereby claim of appellant was refuted.
The learned trial Court out of the pleadings of the - parties initially framed following issues: -
(1) Whether the suit is not maintainable in view of prelimin ary objection A and C of the
written statement?
(2) Whether the plaintiff is entitled to the relief claimed for?
(3) Relief?
Thereafter the following additional issue was also framed on 13 -5-2003: -
Whether the plaintiff has superior right in the su it property under Mohammedan Law?
4. Appellant in support of his claim examined five P.Ws. besides examining himself on oath.
In rebuttal the respondents Nos.12 and 13 produced five DWs and respondent No.13
appeared in the witness box.
5. The learned t rial Court after evaluating the evidence and hearing the parties dismissed the
suit vide judgment and decree dated 5 -11-2004, hence this appeal.
6. We have heard Mr. W.N Kohli, Advocate for appellant, whereas Hafiz Assam respondent
No.13 appeared and arg ued the case in person Learned counsel for appellant submitted that
the trial Court committed material irregularity by dismissing the suit for unjustifiable
reasons. The appellant has performed all the three talbs and there was no irregularity nor was
there any delay on the part of appellant qua performing the said talbs. It was further
mentioned that the appellant by producing evidence fully established that he has performed
Talb-e-Mawasibat, Talb -e-Ishhad and Talb -e-Khasomat. The trial Court misread the
evidence, misconstrued the pleadings and thus grave injustice has been caused to the vested
rights of appellant.
WHEREAS on the other hand respondent No. 13 supported the judgment and submitted that
the appellant failed to prove necessary talbs and has fa iled to point out any illegality and
irregularity in the judgment impugned. The learned trial Court after going through the oral as
well as documentary evidence has passed a well reasoned judgment which is not open to
any exception.
7. We have considered the contentions advanced by learned counsel for appellant and Hafiz
Aslam respondent No.13/ purchaser and gone through the record minutely. Perusal of plaint
reflects that the necessary talbs of `Shufa' have not been performed nor the ingredients of the
talbs have been satisfied. Prior to tiling of plaint a notice is claimed to have been sent to
respondent. The perusal of said notice reflects that neither the date of knowledge of sale has
been mentioned nor the persons before whom the Talb -e-Mawasibat is a lleged to have been
made, have been nominated. Furthermore Para No. 4 of the plaint is quite relevant and will
clarify the position, as such the same is reproduced herein below: --
"(4) That the plaintiff came to know of the above said transaction having been
secretly carried on by the defendants Nos.1 to 11 in favour of defendants Nos.12 and
13 on or about the second week of October, 2002 when he immediately declared his
intention to assert the right of Shufa without loss of time and thereafter with least
practicable delay affirmed the said intention referring expressly to the effect that the
Talb-e-Mawasbat had already been made in presence of 2 witnesses, by taking them
on the premises. This fact was also conveyed by the plaintiff to the defendants Nos.1
to 11 verbally as also a registered notice was sent in this behalf through his counsel on
16-11-2002 after obtaining the certified copy of the mutation entry from the Tehsil
records on 21 -10-2002."
8. The averments of para No. 4 are absolutely silent re garding the specific date, day and time
of knowledge and the performance of talb -e-Mawasibat. It is important to note that the law
requires that the person before whom talb -e-Mawasibat is made must be nominated and
specified. Under such circumstances it ca n easily be inferred that the 'talb -e-Mawasibat' has
not been performed nor the person before whom the 'talb -e-Mawasibat' alleged to have been
made was produced. It may be observed that the statement of P.W.1 who is Patwari, is not
with regard to factum of talbs. P.W.2 Haji Zain -ud-din is neither witnesses of talb -e-
Maswasibat' nor could be treated as witness of `talb -e-Ishhad' as `talb -e-Ishhad' was not made
before him. P.W.3 Manzoor Ahmed states that plaintiff came to know about the transaction -
in Tehsil and he expressed his intention of pre -emption and he came to know in the second
week of October, 2002. It is further stated that thereafter he came to Tawer Shah who
accompanied him and went to the land in question. The analysis of statement reflects that this
witness has not stated time, date and day of knowledge of transaction nor states before whom
the `talb -e-Mawasibat' was made. Actually the statement of the person before whom `talb e-
Mawasibat' is alleged to have been made was essential and inevitabl e. The appellant/ plaintiff
neither in. the plaint nor in statement before the Court has named the person through whom
he came to know about the sale transaction and the person I before whom the `talb -e-
Mawasibat' was made. The above referred statement lea ves no room for doubt that there is
absolutely lack of first `talb -e-Mawasibat', therefore, the suit must fail for non -performance
of first talb. In such view of the matter the trial Court has rightly decided issues Nos. 2 and 4,
i.e. the crucial issues ag ainst the plaintiff/appellant, as such; rest of the issues become
redundant and require no discussion.
In view of what has been discussed herein above, we see no merit in the appeal which is
dismissed with no order as to cost.
S.A.K./95/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,
let us know.