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Petitioner: MUHAMMAD SALEEM VS Respondent: AHMAD HASSANHonorable Justice Khalil-ur-Rehman KhanCh. Muhammad Sardar Khan,Ch. Muhammad Sadiq
1988 C L C 2216
1988 C L C 2216
[Lahore]
Before Khalil‑ur‑Rehman Khan, J
MUHAMMAD SALEEM and others‑‑Appellants
versus
AHMAD HASSAN and others‑‑Respondents
Regular Second Appeal No. 1076 of 1970, decided on 12th September, 1988.
(a) Punjab Pre‑emption Act (I of 1913)‑‑
‑‑‑S. 15‑‑Pre‑emption suit, even on the basis of right as co‑sharer, cannot succeed, after 31‑7‑1986 when the judgment of Supreme Court in the case of Said Kamal Shah (PLD 1986 SC 360) came into effect, unless the plaintiff had preserved his right through Talabs in the mode prescribed by Islamic Jurisprudence‑‑Concept of Talabs developed by Muslim Jurists and the effect of non‑observance of the obligatory formality highlighted.‑‑[ Aziz and another v. Yousuf P L D 1988 Lab. 625; Muhammad Yousuf v. Bakhat Ali Civil Revision No. 149‑D of 1988/BWP and Aiwaz Khan and another v. Allah Bakhsh Regular Second Appeal No. 42 of 1988 dissented from].
Aziz and another v. Yousuf P L D 1988 Lab. 625; Muhammad Yousuf v. Bakhat Ali Civil Revision No. 149‑D of 1988/BWP and Aiwaz Khan and another v. Allah Bakhsh Regular Second Appeal No. 42 of 1988 dissented from.
Said Kamal's case P L D 1986 SC 360; Sardar Ali and others v. Muhammad Ali and others P L D 198$ SC 287; Sher Muhammad and others v. Allah Ditta and others P L D 1988 SC 412; Aiwaz Khan and another v. Allah Bakhsh 1988 S C M R 1799; Mushtaq Hussain v. Syed Ali Ahmad Shah and P L D 1988 Lab. 722 fol.
(b) Punjab Pre‑emption Act (I of 1913)‑‑
‑‑‑S. 15‑‑Pre‑emption suit‑‑ Talabs‑‑Plaint did not contain an averment that plaintiff had made Talabs as required by Shariah for successfully exercising the claimed right of pre‑emption‑‑Such a suit, held, could not succeed for want of Talab.
Ch. Muhammad Sardar Khan for Appellant.
Ch. Muhammad Sadiq for Respondents.
Date of hearing: 12th September, 1988.
JUDGMENT
This judgment will dispose of this appeal as well as second appeal No. 516/71 as the question involved in both these appeals is one and the same.
2. These appeals arose out of suits for possession through pre‑emption filed by the respective appellants pre‑emptors. The plaints in both the suits were rejected on account of failure to deposit Zar‑i‑Panjum within the time fixed by the learned trial Court. These orders rejecting the plaints were affirmed in the first appeals as the respective first appellate Courts dismissed the appeals filed by the present appellants. This led to the filing of these second appeals by the unsuccessful pre‑emptors/ plaintiffs.
3. I have heard the learned counsel for the parties. The only contention urged in support of these appeals was that the plaintiffs/ pre‑emptors being co‑sharers, the decision of Said Kamal's case (PLD 1986 S C 360) has no effect on their respective suits and that the judgments in the case of Sardar Ali etc. v. Muhammad Ali etc. (PLD 1988 S C 287) and Sher Muhammad etc. v. Allah Ditta etc. (PLD 1988 S C 412) also do not apply as the suits were filed by the appellants on the ground of co‑sharer under section 15 of the Punjab Pre‑emption Act, 1913. In support of this submission reliance was placed on three judgments of a learned Judge of this Court in the cases of Aziz and another v. Yousuf (P L D 1988 Lab. 625); Muhammad Yousuf v. Bakhat Ali (Civil Revision No. 149‑D/88/BWP, and Aiwaz Khan and another v. Allah Bakhash (R.S.A. No. 42/88), the two unreported judgments. It may be noted that the reasoning given in the two unreported judgments proceeded on the same grounds. The judgment in the case of Aiwaz Khan was challenged and the Supreme Court while granting leave suspended the general effect of this judgment. [See Aiwaz Khan and another v. Allah Bakhash (1988 SCMR 1799]. The appeal was finally accepted by Supreme Court on 14th September, .1988 reported as (PLD 1988 SC 730 and the judgment of the learned Single Judge in the case of Aiwaz Khan was set aside, observing:
"Relies on the judgment of this Court in Sardar Ali v. Muhammad Ali (P L D 1988 S C 287) and the order dated 24‑5‑1988 of this Court reported in the same issue of the PLD (June 1988); in which, the case of Sardar Ali is reported, immediately after the report of said case ends. (See PLD 1988 S.C. 355). It would not have been missed. It is observed therein that no decree can be passed now after the said date in favour of the pre‑emptors on any ground‑‑co‑ownership, contiguity etc. Despite that the learned Judge has chosen to take a view contrary to the Supreme Court view."
It is thus obvious that the view taken by the learned Judge of this Court in the aforenoted case was not approved by the Supreme Court. The other two judgments expressing the same view which is contrary. to the view expressed by the Supreme Court, therefore, fail to advance the case of the appellants. A suit for possession through pre‑emption even on the basis of the alleged right as a co‑sharer, cannot succeed unless the plaintiff had preserved his right through 'Talabs in the mode prescribed by Islamic Jurisprudence. The concept of 'Talabs' developed by Muslim Jurists and the effect of non‑observance of the obligatory formality has been highlighted in the case of Mushtaq Hussain v. Syed Ali Ahmad Shah (C.R. 141‑D‑88/RWP), decided on 5‑9‑1988 reported as P L D 1988 Lab. 722. In addition to the above?noted judgments of the Supreme Court, reference may be made to Sher Muhammad etc. v. Allah Ditta etc. (PLD 1988 S C 412).
4.???????? In these suits, admittedly the plaints do not contain even and averment that the plaintiffs had made Talabs, as required by Shariah for successfully exercising the claimed right of pre‑emption. These suits, thus, cannot succeed in any case. The appeals therefore, fail and are dismissed with no order as to costs.
M. B.A/M‑902/L???????????????????????????????????????????????????????? Appeals dismissed.