2013 Y L R 1955
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
Syed SHAHABUDDIN ---Appellant
Versus
Haji ABDUL GHANI and 5 others ---Respondents
Regular First Appeal No.9 of 2007, decided on 29th May, 2013.
Islamic law ---
----Pre-emption ---Preferential right ---Question of requisite Talbs ---Scope ---Suit filed by pre -
emptor was dismissed by Trial Court ---Validity ---Pre-emptor in the plaint had claimed to be
Shafi -i-Khalit and Shafi -i-Jar but while recording h is statement before Trial Court, he mentioned
boundaries and was not found either Shafi -i-Jar or Shafi -i-Khalit ---Pre-emptor, in circumstances,
was not entitled and competent under Islamic law to file suit for pre -emption, therefore, post -sale
requisites w ere immaterial ---High Court declined to interfere in judgment and decree passed by
Trial Court as the same did not suffer from any illegality, irregularity, impropriety or perversity --
-Appeal was dismissed in circumstances.
2004 CLC 610 and 2003 CLC 80 7 distinguished.
Syed Ayaz Zahoor for Appellant.
Nemo for Respondents.
Date of hearing: 7th May, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the
judgment and decree dated 9th December, 2006 passed by the Civil Judge, Chaman, whereby the
suit filed by the appellant for possession through pre -emption was dismissed.
2. The brief facts, relevant for the disposal of instant appeal are that the appellant instituted
a suit for possession through pre -emption aga inst respondents in the Court of Civil Judge,
Chaman. It was averred in the plaint that the plaintiff is owner in possession of land bearing
Khewat No.110 and Khatooni No.113 situated at Mohal and Mouza Zar Karez, Tappa Killa
Abdullah Tehsil Gulistan Distr ict Killa Abdullah. It was further averred that on 19th August,
2005, one Syed Siraj -ud-Din informed him that defendant No.1 has sold a portion of his property
to defendants Nos.2 to 4. On coming to know about the sale transaction, the plaintiff without lo ss
of time expressed his right of pre -emption and made Talb -e-Muwathibat in presence of one Syed
Abdullah. According to plaintiff on the same day at about 5 -00 p.m., he along with above
referred two witnesses, went to the land in dispute and made Talb -e-Ishhad. The plaintiff claimed
that he being the adjacent owner of the property as Shafi -i-Jar, has the legal right to pre -empt the
property in dispute.
3. The suit was contested by the respondent/defendant No.1 by way of filing written
statement whereby be sides raising certain preliminary objections the claim of appellant was
repudiated on merits.
4. The learned trial Court, out of the pleadings of the parties framed following issues: --
(1) Whether the suit is barred by limitation? OPD
(2) Whether the suit is hit by the principle of res subjudice? OPD
(3) Whether no cause of action has accrued to the plaintiff? OPD
(4) Whether the plaintiff has fulfilled the requirements of pre -emption by performing of
Talb-e-Muwathibat (sic) and Ishhad? OPP
(5) Whether the plaintiff has got the right of pre -emption? OPP
5. Thereafter, the parties were directed to adduce evidence in support of their respective
claims. The plaintiff produced two P.Ws., besides recording his own statement. Whereas, in
rebuttal, th e defendants did not produce any witness, however himself appeared in the witness
box. The learned trial Court after hearing the parties and evaluating the evidence dismissed the
suit vide judgment/decree referred to hereinabove.
Learned counsel for the appellant stated that appellant has performed required talbs and
has successfully established performance thereof through P.Ws. produced before the trial Court.
The trial Court by misreading and non -reading of evidence illegally dismissed the suit. It was
further stated that the law applicable on the subject has been misunderstood which resulted in
dismissal of the suit filed by the plaintiff/appellant for unjustifiable reasons. Reliance was placed
on 2004 CLC (Lahore) 610 and 2003 CLC (Lahore) 807.
On the other hand, learned counsel for the respondents vehemently opposed the
submissions made by the learned counsel for appellant. The learned counsel for respondents
stated that perusal of statements of P.Ws. would reflect that the plaintiff/appellant has not
performed the 'Talb -e-Muwathibat'. It was further contended that the plaintiff utterly failed to
discharge the issues onus whereof was upon him. The learned trial Court after considering the
entire material and taking into consideration all legal as we ll as factual aspects of the case rightly
passed the judgment. The judgment impugned herein is not result of misreading and non -reading
of evidence, as such, there was no option for the trial Court except to dismiss the suit.
6. We have considered the contentions put forth by the parties learned counsel and gone
through the record of the case. It may be observed that in the instant case issue No.4 is crucial
issue. The onus to prove the issue was on the plaintiff. The latter to prove the issue produced
P.W. Abdullah, who deposed that on 19th August, 2005, he was present with plaintiff at his tube -
well when Siraj -ud-Din informed the plaintiff about the sale transaction. According to the
witness, the plaintiff made jumping demand, where after, they went to the disputed property
where too the plaintiff besides referring to his first demand, expressed his second demand. It will
not be out of place to mention here that the statement of this witness is not worth -reliance,
because the witness admitted that the p roperty in question was previously sold to Haji Abdul
Ghani. The latter further sold out the property to one Abdullah. Besides, the perusal of impugned
judgment reveals that the plaintiff failed to prove his claim by producing trustworthy,
confidence -inspi ring and tangible evidence. The learned counsel failed to pinpoint portion of the
evidence, which has either been misread or misappreciated. On the contrary perusal of record
reveals that there is no misreading and non -reading of evidence. The learned tria l Court after
taking into consideration the entire material available on record and dilating upon each and every
aspect of the case passed an exhaustive judgment covering the entire controversy. Similarly, as
far as issue No.5 is concerned, according to Is lamic Law, the right of preemption is subject to a
couple of conditions i.e. pre -sale and post -sale. The pre -sale conditions are enumerated in section
231 of the Muhammadan Law, which is reproduced hereinbelow: --
"231. Who may claim pre -emption. ---The fo llowing three classes of persons and no others are
entitled to claim pre -emption, namely: --
(1) A co -sharer in the property, (Shafi -i-Sharik);
(2) A participator in immunities and appendages, such as a right of way or a right to
discharge water, (Shafi -i-Khalit)
(3) Owners of adjoining immovable property, (Shafi -i-jar), but not their tenants, nor persons
in possession of such property without any lawful title.
[Baillie, 481]. A Waqif or mutwalli is not entitled to pre -empt, as the waqf property doe s
not vest in him.
The first class excludes the second, and the second excludes the third. But when there are
two more pre -emptors belonging to the same class, they are entitled to equal shares of the
property in respect of which the right is claimed [B aillie, 500]
Exception. ---The right of pre -emption on the third ground, viz, that of vicinage does not
extend to estates of large magnitude, such as villages and zamindaris, but is confined to houses,
gardens and small parcels of land. The right, howeve r, may be claimed by a co -sharer. "
7. If the plaintiff does fall within the aforesaid three classes he/they is/are not competent to
maintain a legal suit. Looking the case of plaintiff/appellant in this perspective, we have no
doubt that the appellant/p laintiff does not fall within the category of none. Though in the plaint,
the plaintiff claims to be a Shafi -i-Khalit and Shafi -i-jar but while recording his statement before
the court, he mentioned the boundaries and was not found either Shafi -i-jar or Sh afi-i-Khalit. So
in view of the provisions of section 231 of the Muhammadan Law, he is not entitled and
competent to file a suit for preemption; therefore, the post sale requisites are immaterial.
8. Besides above, we have gone through the judgments reli ed upon by the learned counsel
for the appellant but since the facts of said cases are distinguishable, therefore, the same are not
applicable in the instant case. Furthermore, in the light of judgment passed by the Apex Court,
the judgment of the High Cou rt relied upon by the learned counsel for the appellant loses its
significance. Similarly, rests of the issues have rightly been resolved by the trial Court after
proper appreciation of evidence.
9. To sum -up the discussion, we are confident to hold that there is no mis -reading and non -
reading of evidence nor for that matter there is any mis -appreciation of facts by the trial Court,
therefore, we do not see any plausible reason to interfere with a judgment which does not suffer
from any illegality, irregu larity or perversity. Resultantly the appeal having no merits is
dismissed with no order as to costs. Decree sheet be drawn.
MH/54/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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