Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Raheel Kamran), officially reported as 2026 LHC 4246. In this matter between Shaukat Ali Etc and Muhammad Shoaib Etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

COURT: Lahore High Court (Honorable Mr. Justice Raheel Kamran) DECISION DATE: 02-07-2026 CASE DETAILS: Civil Revision 174922/18 ============================================================ Stereo. H C J D A 38. Judgment Sheet IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

Civil Revision No.174922 of 2018

Shaukat Ali and another Versus Muhammad Shoaib, etc.

J U D G M E N T

Date of Hearing 08.06.2026 For the petitioners Mr. Saeed Ahmad Cheema, Advocate. Mr. Asim Malik, Advocate in C.R. No.212658-18 For the respondent Syed Fayyaz Ahmad Sherazi, Advocate.

Raheel Kamran J:- Through this single judgment, I intend to decide the titled Civil Revision as well as connected Civil Revision No.212658 of 2018 titled ―Muhammad Ayub versus Muhammad Shoaib, etc.‖ as both these petitions filed under Section 115 of the Code of Civil Procedure, 1908 call in question the judgment and decree dated 10.02.2018 passed by the Additional Di strict Judge, Gujrat. By virtue of the impugned judgment, the appeal preferred by Muhammad Shoaib respondent-plaintiff was accepted, the judgment and decree dated 11.01.2013 passed by the Civil Judge, Gujrat dismissing the suit was set aside and the respo ndent’s suit for possession through pre -emption was decreed. 2. The facts giving rise to the filing of these petitions are that the respondent -plaintiff instituted a suit for possession through pre - emption against the petitioners. The case set up in the pl aint was that Muhammad Aslam, owner of the property described in paragraph No.1 of the plaint (hereinafter referred to as ―the suit property‖ ) sold the same to the petitioners through registered sale deed No.2721 dated 05.04.2008 (hereinafter referred to a s ―the impugned sale‖ ). According to the respondent-plaintiff, the sale was effected secretly for an actual 2 C.R. No.174922 of 2018 consideration of Rs.6,00,000/-, however, in order to defeat or frustrate his right of pre-emption, an inflated sale consideration of Rs.25,00,000/ - was incorporated in the sale deed. It was further pleaded that the respondent - plaintiff came to know about the impugned sale on 28.04.2008 after Maghrib prayer through Nazir Hussain PW -2 in the presence of Nauman Yousaf (not examined during trial ) and Muhammad Yousaf PW -3 when they were present in the house of Nazir Hussain. The respondent -plaintiff claimed that immediately upon receiving such information, he performed talb-i-muwathibat by declaring his intention to exercise the right of shufa, asserting preferential entitlement as shafi sharik, shafi khalit and shafi jar. It was also averred that thereafter, in compliance with the requirement of talb-i-ishhad, separate notices were sent to each of the petitioners through registered post A.D., calling upon t hem to transfer possession of the suit property to him on receipt of the actual sale consideration of Rs.6,00,000/-. The petitioners contested the suit through a joint written statement. After framing of issues and recording of evidence, the Civil Judge, Gujrat dismissed the suit vide judgment and decree dated 11.01.2013. The respondent -plaintiff preferred an appeal, which was accepted by the Additional District Judge, Gujrat through judgment and decree dated 10.02.2018, resulting in reversal of the trial Court’s findings and decreeing of the suit. Hence, these civil revisions. 3. Learned counsel for the petitioners contended that the trial Court had rightly dismissed the suit as the respondent -plaintiff failed to establish strict compliance with the mandat ory requirements of pre - emption law, whereas the appellate Court misread the evidence and erred in law while decreeing the suit. It was argued that the alleged majlis in which the respondent-plaintiff claimed to have acquired knowledge of the impugned sale comprised the plaintiff, the informer Nazir Hussain PW -2 and two alleged witnesses namely Nauman Yousaf and Muhammad Yousaf PW-3, however, one of the material witnesses of the said majlis namely Nauman Yousaf was not produced. According to learned counsel , non-examination of such witness was fatal, particularly when the 3 C.R. No.174922 of 2018 requirement of prompt and unequivocal performance of talb-i-muwathibat had to be proved strictly. Learned counsel further submitted that the suit property was purchased by three vendees joi ntly through the impugned sale and as such notices of talb -i-ishhad were required to be duly served upon each of them. It was argued that service, if any, upon one of the vendees could not be treated as service upon all, merely because the purchasers were real brothers. Learned counsel added that even according to the respondent-plaintiff’s own case, the notices were allegedly received by only one of the petitioners namely Tahir Mahmood whereas there was no proof of service upon the remaining purchasers. Learned counsel further submitted that the evidence relating to talb-i-ishhad was inherently deficient. He explained that PW-2 Nazir Hussain was admittedly illiterate and stated that he did not know what was written in the notices and that PW-3 Muhammad Yousaf also stated that the notices were got drafted by the respondent -plaintiff and that he merely signed them. It was argued that neither the scribe of the notices nor the clerk who allegedly dispatched the notices through registered post was examined and that the postman PW-4 could at best depose regarding delivery of enve lopes but he could not testify as to their contents. In such circumstances, according to learned counsel, the respondent -plaintiff failed to prove that the envelopes allegedly posted and/or delivered actually contained valid notices of talb-i-ishhad. 4. On the other hand, it is noted that vide order dated 15.01.2019 passed in both the civil revisions, the respondent was proceeded against ex parte. However, learned counsel for the respondent entered appearance at the time of hearing and was permitted to join the proceedings. He supported the impugned judgment and decree passed by the appellate Court, contending that the Additional District Judge had properly appreciated the evidence and dealt with the objections raised by the petitioners in the light of the a pplicable law and authoritative pronouncements of this Court as well as the Supreme Court of Pakistan. 5. Arguments heard. Record perused. 4 C.R. No.174922 of 2018 6. Before adverting to the merits of the controversy, it is appropriate to notice the scope of interference by this Court in exercise of revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. Ordinarily, this Court does not sit as a Court of appeal to reappraise evidence merely because another view may also be possible. However, where the judgment of a court below is found to be based on misreading or non-reading of material evidence, misapplication of settled principles of law or where a material illegality or irregularity in the exercise of jurisdiction has resulted in miscarriage of justice, i nterference in revisional jurisdiction is not only permissible but warranted. In the instant case, the trial Court dismissed the respondent -plaintiff’s suit after appreciating the evidence whereas the appellate Court reversed those findings. It is, therefo re, necessary to examine whether the reversal recorded by the appellate Court is sustainable in the light of the mandatory requirements of the Punjab Pre -emption Act, 1991 and the evidence available on the record. 7. In order to appreciate the controversy in its correct legal perspective, it is necessary first to advert to Section 13 of the Punjab Pre - emption Act, 1991 (hereinafter referred to as ―the Act of 1991‖), which reads as under:- “13. Demand of pre -emption.—(1) The right of pre -emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:— (a) Talb-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-i-Khusumat. Explanation.—(I) ―Talb -i-Muwathibat‖ means immediate demand by a pre -emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Note.—Any words indicative of intention to exercise the right of pre-emption are sufficient. (II) ―Talb-i-Ishhad‖ means demand by establishing evidence. (III) ―Talb-i-Khusumat‖ means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb -i- Muwathibat. (3) Where a pre -emptor has made Talb -i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not 5 C.R. No.174922 of 2018 later than two weeks from the date of knowledge make Talb -i- Ishhad by sending a notice in writing attested by two truthful witnesses, under regist ered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre -emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses. (4) Where a pre -emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2), and Talb -i-Ishhad under sub -section (3) he shall make Talb -i-Khusumat in the Court of competent jurisd iction to enforce his right of pre - emption.‖ 8. A plain reading of the above provision makes it manifest that the right of pre-emption is a special right and the entire superstructure of a suit for possession through pre -emption rests upon due performance of the Talbs in the order prescribed by law. The statute itself declares that the right shall stand extinguished unless the pre -emptor performs Talb-i-Muwathibat, Talb-i-Ishhad and Talb -i-Khusumat in the prescribed sequence. Thus, in such a suit, it is no t enough for the plaintiff merely to assert a preferential right; he must specifically plead and strictly prove the performance of the statutory demands through confidence -inspiring evidence. Any material defect, omission or doubt in the performance or proof of Talbs ordinarily operates against the pre -emptor, for the law of pre-emption, being a clog upon the ordinary right of sale and purchase, has always been construed strictly. In this regard, reference may be made to the judgment of the Supreme Court in the case of ―Ch. Riaz Ahmad v. Munir Sultan Malik‖ (2022 SCMR 667 ), wherein it was observed as under:- ―To succeed in a suit for pre -emption the first and foremost condition is that plaintiff has to plead that before filing of suit he has fulfilled the requirements of Talabs and thereafter he has to prove the performance of Talb -e-Muwathibat and Talb-e-Ishhad. For proving Talb -e-Muwathibat needless to observe that there must be specific time, date and place of knowledge pleaded in the plaint as well as i n the notice of Talb-e-Ishhad and thereafter plaintiff is required to prove the same by proving the gaining of knowledge at specific place, time and date and thereafter sending of notice attested by two truthful witnesses through registered post acknowledg ement 6 C.R. No.174922 of 2018 due where the postal facilities are available and thereafter to prove the delivery of notice to the addressee -vendee defendant or its refusal by producing a Postman in the Court while producing evidence to prove the above -mentioned pleadings.‖ The above principle leaves no manner of doubt that in a pre -emption suit the plaintiff has to cross a strict evidentiary threshold. The Court is required to examine, with circumspection, whether the alleged Talb-i-Muwathibat was in fact performed immediately on acquiring knowledge of the sale and whether Talb -i-Ishhad was duly made within the statutory period and in the manner prescribed by law. 9. Adverting first to Talb -i-Muwathibat, the respondent - plaintiff’s case was that he came to know about the impugned sale on 28.04.2008 after Maghrib prayer through Nazir Hussain PW -2 while he was present in the house of Nazir Hussain. According to the plaint, the information was conveyed in the presence of Nauman Yousaf and Muhammad Y ousaf PW -3, whereupon the respondent -plaintiff immediately declared his intention to exercise the right of pre -emption. Thus, as per the respondent -plaintiff’s own pleading, the alleged Majlis consisted of the plaintiff, the informer Nazir Hussain PW-2 and two other persons namely Nauman Yousaf and Muhammad Yousaf PW -3. The difficulty in the respondent -plaintiff’s case is that one of the material persons allegedly present in the Majlis, namely Nauman Yousaf, was not produced. No plausible explanation was fu rnished for withholding him. The respondent-plaintiff relied upon his own statement and the statements of Nazir Hussain PW -2 and Muhammad Yousaf PW -3 but the non - production of Nauman Yousaf, who according to the plaintiff himself was present at the time of the alleged first demand, assumes significance. In a suit of pre -emption, where strict proof of immediate demand is required, withholding of a material witness of the alleged Majlis, who is also shown to be an attesting witness of notices talb -i-ishhad, gives rise to an adverse presumption1 that had such witness been produced, he would not have supported the plaintiff’s version . Guidance in this respect is found in the

1 Article 129(g) of Qanun-e-Shahadat, 1984 7 C.R. No.174922 of 2018 case of ―Zahid Khan and others v. Muhammad Ahsan and others ‖ (2024 MLD 396 Lahore). 10. The appellate Court , however, brushed aside th e above defect by observing that presence of witnesses in the Majlis was not a requirement of law and that a Majlis may consist of the pre -emptor and the informer only. For this proposition, reliance was placed upon the judgment of a Division Bench of this Court in the case of ―Muhammad Riaz through Special Attorney v. Ghulam Hussain through Legal Heirs‖ (2016 YLR 56 Lahore) . There can be no cavil with the principle laid down in the said judgment. The question b efore the Larger Bench in that case was regarding the meaning of ―sitting‖ or ―meeting‖ — Majlis — mentioned in Section 13 of the Act of 1991. The Larger Bench held that the meeting of the pre -emptor with the informer is sufficient to constitute Majlis and that the presence of more than two persons is not necessary. The above principle, however, does not advance the respondent-plaintiff’s case in the facts of the matter at hand. The issue here is not whether a Majlis must necessarily consist of more than tw o persons. The issue is that the plaintiff himself pleaded the presence of two persons besides himself and the informer but failed to produce one of them without any explanation. Once the plaintiff sets up a particular Majlis and names the persons in whose presence the alleged information was received and Talb-i-Muwathibat was performed, he is required to prove that version through the best available evidence. The appellate Court, therefore , erred in applying the ratio from the case of Muhammad Riaz (supra) to a materially different factual situation. This view is fortified by the cases of ―Abdul Qayyum Khan v. Sarfraz Khan and 4 others‖ (2008 YLR 101 Lahore), ―Syed Waqas Bacha v. Jan Ali Shah and 2 others‖ (2014 MLD 1325 Peshawar ) and ―Riaz Ahmad v. Molla Bux‖ (2023 YLR Note 70 Lahore), wherein non -production of a material witness of the alleged Talb-i-Muwathibat was treated as fatal. Even in the latter case titled Riaz Ahmad v. Molla Bux , keeping in view the factual controversy regarding the alleged Majlis , non -production of independent witnesses was also treated as a circumstance adverse to the pre -emptor and it was observed 8 C.R. No.174922 of 2018 that the informer could not, in the circumstances of that case, simultaneously be treated as an independent witness of Talb-i-Muwathibat. 11. There is yet another aspect of the matter which casts serious doubt upon the respondent -plaintiff’s alleged date of knowledge. The impugned sale was effected through registered sale deed No.2721 dated 05.04.2008. The respondent-plaintiff claimed that he came to know of the sale only on 28.04.2008. However, according to the evidence, the vendees obtained possession of the suit property at the time of execution of the sale deed. PW -3 Muhammad Yousaf who was admittedly owner of land adjacent to the suit proper ty, also stated that the defendants obtained possession at the time of purchase. The plaintiff PW -1 and Nazir Hussain PW-2 also did not dispute the fact that possession was obtained by the vendees since the purchase. In ordinary rural settings, taking over possession of agricultural land by a purchaser is a visible circumstance and may legitimately be taken into account while examining whether persons interested in adjoining properties could have remained unaware of the sale. The plaintiff is related to PW -2 who is his father -in-law and PW-3 is father-in-law of the plaintiff’s real brother. PW-3, being owner of adjacent property, did not himself exercise the right of pre -emption. These circumstances render it difficult to accept that the plaintiff and his close relatives remained unaware of the sale for more than three weeks and came to know of it only on 28.04.2008. In the case of ―Farid Ullah Khan v. Irfan Ullah Khan‖ (2022 SCMR 1231 ), the Supreme Court observed that the assertion of a pre -emptor regarding his alleged date of knowledge, being a personal and private act, may ordinarily be rebutted through circumstantial evidence and the Court is required to test the authenticity of such version through the chain of source of information and surrounding circum stances. Likewise, in the case of ―Mst. Zohra Khatoon v. Ghulam Farid‖ (2020 SCMR 465 ), the Supreme Court disbelieved a delayed version of knowledge where the circumstances showed that the pre -emptor or his close relative had knowledge much earlier and it appeared that a later date was pleaded only to bring the 9 C.R. No.174922 of 2018 notice of Talb -i-Ishhad within the statutory period. The relevant extract from the judgment in Mst. Zohra Khatoon‘s case is reproduced below:- ―6. The referred to section 13 of the Act commences by stating that, ‗the right of pre -emption of a person shall be extinguished unless such p erson makes demands of pre-emption in the following order, namely: (a) Talb -i- Muwathibat; (b) Talb -i-Ishhad; and (c) Talb -i-Khusumat‘ and goes on to explain, that, ‗Talb -i-Muwathibat means immediate demand by a pre -emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre -emption‘. And, subsection (2) of section 13 of the Act states that, ‗when the fact of sale comes within the knowledge of a pre -emptor through any source, he sha ll make Talb -i-Muwathibat‘ whereafter the pre -emptor has to issue notice of Talb -i- Ishhad within two weeks (subsection (3) of section 13 of the Act). In this case the notice of Talb -i-Ishhad was issued on 17th March 2003. The two weeks‘ time within which t he notice of Talb-i-Ishhad had to be issued will start to run from the time when the pre -emptor got knowledge of the sale. The pre-emptor respondent (PW -6) stated that his real nephew Zafar Iqbal (PW -7) learnt of the sale on the day of the execution of the sale deed, which was 25th January 2003, however, Zafar Iqbal stated that respondent was informed by him on 6th March 2003. In his cross -examination Zafar Iqbal stated that he did not know the name of the purchaser and also did not know the particulars of the land which had been purchased. It is thus clear that the respondent had not learnt of the said sale on 6th March 2003 as was stated by him in the plaint. The respondent in his cross examination admitted that his nephew learnt of the sale on the date of execution of sale deed, which was 25th January 2003, therefore, it can reasonably be presumed that Zafar Iqbal must have informed his uncle then or soon thereafter instead of waiting for forty - one days. The respondent pleaded and testified that Talb -i- Muwathibat was made on 6th March 2003 which is not believable, particularly, when Zafar Iqbal testified that the only reason for him to go and see to his uncle on 6th March 2003 was to inform him about the sale, thereby suggesting that he had considered the c ommunication of information of sale as important. In the plaint it was disclosed that Zafar Iqbal had learnt of the sale on 25th January 2003. It thus appears that the respondent had knowledge of the sale on 25th January 2003 but to bring the notice of Tal b-i-Ishhad within the statutory period of two weeks had alleged in the plaint that he learnt of it on 6th March 2003. In a pre - emption suit the pre -emptor must immediately upon learning of the sale make Talb -i-Muwathibat and thereafter as per the 10 C.R. No.174922 of 2018 Act, within fourteen days, send notice of Talb -i-Ishhad. Since the knowledge of sale was obtained by the respondent on 25th January 2003, or soon thereafter, the notice of Talb -i-Ishhad was sent beyond the statutory period of two weeks.‖ When the facts of the case in hand are examined in the light of the above principle, the respondent -plaintiff’s claim that he first came to know of the sale on 28.04.2008 does not inspire confidence. The surrounding circumstances indicate that the sale and transfer of possession were not secret acts. It appears that the alleged date of knowledge was introduced to bring the subsequent notice of Talb-i-Ishhad within the statutory period of two weeks. 12. Learned counsel for the respondent-plaintiff relied upon a portion of the cross-examination of DW-1 Shaukat Ali wherein he admitted as correct the suggestion that the plaintiff had no knowledge of the impugned sale from its inception and came to know of the same on 28.04.2008. The said answer, however, is a stray admission that cannot be read in isolation or treated as conclusive proof of the plaintiff’s alleged date of knowledge. The date, time, place and source of first knowledge of a sale, in a suit for pre-emption, are facts particularly within the knowledge of the pre-emptor and by virtue of Article 1222 of the Qanun-e-Shahadat Order, 1984, the burden to prove such facts rests upon him. A vendee cannot ordinarily be expected to possess certain knowledge of the precise point of time at which the pre-emptor acquired knowledge of the sale nor can the plaintiff be permitted to discharge his statutory burden merely on the basis of an answer elicited from a defendant during cross-examination. An answer given by a witness in cross-examination must be appreciated in the context of the questions put to him and in the light of the evidence as a whole. In the present case, DW-1 also stated that all the residents of the village came to know about the transaction at the time when the impugned sale deed was executed. This part of his statement, when read with the fact that possession was delivered to the vendees at the time of sale and with the other surrounding circumstances noticed above, negates rather than supports the plaintiff’s

2 122. Burden of proving fact especially within knowledge.–When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him 11 C.R. No.174922 of 2018 plea of delayed knowledge. The plaintiff was required to prove his pleaded date of knowledge through reliable and confidence -inspiring evidence of his own. 13. Another significant infirmity in the respondent -plaintiff’s version of Talb -i-Muwathibat relate s to the chain of source of information. The plaintiff stated that Nazir Hussain PW -2 informed him about the sale and the alleged actual consideration of Rs.6,00,000/ -. In cross-examination, the plaintiff admitted that PW -2 did not disclose to him as to wh o had informed PW -2 about the sale. Later, PW -2 stated in cross examination that he had received information from one Nazeer son of Nawab on 28.04.2008 at about 10:00/11:00 a.m. at the hotel of Naseer. The said Nazeer son of Nawab, however, was not produce d. Thus, the person who allegedly provided information to the informer was withheld. The Supreme Court in Farid Ullah Khan‘s case (supra) has authoritatively held that the chain of source of information regarding the fact of sale must be complete. The relevant portion from the said judgment is as follows:- ―The fact of a sale of land is a fact that can be seen, such as, by observing or taki ng part in the sale -transaction or by seeing the sale deed or sale mutation. The person who conveys the information of the fact of sale must be a person who has seen the fact of sale and it is he who can then pass on the said fact to another person(s). Thu s, the chain of the source of information, as to the fact of sale, from the very first person, who has the direct knowledge thereof and passes on the same to the person who lastly informs the pre -emptor, must be complete. Only the complete chain…

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