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Petitioner: HUSSAIN BUX VS Respondent: MIR MUHAMMAD AND 3 OTHERS
Court Name: Sindh High Court Judge(s): Ibadat Yar Khan Title: HUSSAIN BUX vs MIR MUHAMMAD AND 3 OTHERS Case No.: First Civil Appeal No, 1 of 1982 Date of Judgment:1984-09-04 Reported As: PLD 1985 Karachi 161 Result: Suit decreed
JUDGMENT
JUDGMENT ' This appeal has arisen out of a suit for pre-emption. Appellant seeks to enforce his right of pre- emption in agricultural land on the grounds of vicinage and participator of appendages and immunities of agricultural land bearing S. Nos. 317 and 326 in Deh Saida Bola, Taluka Gambat, District Khairpur. These survey numbers are adjoining Survey Nos. 330, 318/4-21 and 325 and which were owned by respondents 2 to 4. According to the plaint the said respondents Nos. 2 to 4 sold these survey numbers to respondent No, 1 for a consideration of Rs, 80,000 under a registered deed dated 20-3-1981 without the consent and knowledge of the appellant. This gave rise to the dissatisfaction which has resulted in the litigation between the parties. ' As the right involved in these proceedings is a "feeble right" and is dependent upon performance of certain formalities or rituals it is necessary to reproduce in his own words the steps taken by the appellant in order to show now far he has followed the course prescribed to entitle him to successfully enforce this "feeble right" against the respondents. Paras. 8, 9 of the plaint are crucial, it is better to reproduce them in extenso "8. That on 20-3-1981, the plaintiff came to know about the above-said sale by the defendants Nos. 2 to 4 in favour of the defendant No, I and on getting the said information, the plaintiff immediately there and then made the first demand of Talab Muwasibat and said that he was the pre-emptor of the above said land and that he will purchase the same as his land is adjacent to the abovesaid land sold by the defendants Nos. 2 to 4 to the defendant No, 1 and that the same was also being watered by the same Kassi and that he had a right of way also. 9. That immediately thereafter, on the same day the plaintiff took the amount of Rs, 80,000 with himself and also took two witnesses with himself and narrated the above facts to them and they all
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went to the defendant No, 1 in his village who met them in his Utak. The plaintiff after making reference to the first demand of Talab-e7 Mawasibat made the second demand of Talab-e- Ishhad before the defendant No, 1 in presence of the witnesses and told the defendant No, 1 that as the plaintiff was the pre-emptor of the S. Nos. 318, 325 and 330, purchased by him from the defendants Nos. 2 to 4 for the consideration of Rs, 80.000 therefore he will purchase the same and that the defendant No, 1 should return (sell) the land to the plaintiff and take money from him, as his land is adjacent to the abovesaid land and the same is being watered by the same Kassi and he had also right of way through the same. But the defendant No, 1 refused to accept the money from the plaintiff and refused to return the land to the plaintiff, on the basis of pre-emption. The plaintiff asked the witnesses to be the witnesses of the abovesaid demands." ' The defendants contested the claim in suit. All the 4 respondents filed a joint written statement. Paras. 7, 8, 9 and 10 of the written statement are directly related to the point around which the controversy has centred and are reproduced below for ready reference :- "Paragraph 7. It is admitted that defendants Nos. 2 to 4 have sold out the property in suit to defendant No, 1 but it is vehemently denied that it was a secret transaction. In fact the sale took place within the knowledge of the plaintiff and he was also consulted an various ancillary matters at the time of affecting sale. (8) Denied most emphatically as being palpably false and incorrect. No such demand as alleged has ever been made by the plaintiff nor he has ever demonstrated his intention to purchase the S. Nos. As an afterthought and with the sold objective to harass and inconvenience the defendant the plaintiff has filed the present suit. 9. Denied emphatically that the plaintiff did make any second demand before witnesses. Besides plaintiff never talk of purchasing the said property and in fact be could not do it because the right of preemption was not available to him as defendants Nos. 2 to 4 profess Shia faith and law of pre- emption is not applicable on the sales made by them. 10. Denied vehemently. As already stated in the foregoing paragraphs the sellers are Shia by faith and the law of pre-emption is not applicable to them. It was only customary that they had offered the land to the plaintiff prior to sale to the defendant No, 1 otherwise in law they are not bound to sell it to the plaintiff in furtherance of any right of pre-emption." ' The learned Senior Civil Judge, Gambat framed the following issues : "(1) Whether the suit is not maintainable according to law ? (2) Whether the plaintiff is pre-emptor of the suit land ? (3) Whether the plaintiff made proper demands ? (4) Whether the vendors profess Shia faith and law of pre-emption is not applicable on the sale/purchase in question ? (5) What should the decree be ? ' Evidence was recorded. Both sides examined witnesses in support of their case. Appellant/plaintiff was examined as P. W. 1 and in support he examined Master Abdul Rehman P. W. 2, Moula Bux P. W. 3, and Muhammad Khan P. W. 4. The defendant No, 1 who is the purchaser of the land examined himself and two witnesses. One of these two P. W. 3 Serai Muhammad Ali represented the sellers group. He stated that the sellers were Shias and as such were not obliged to offer the land to the plaintiff. The Shia law does not recognize pre-emption right on the ground of vicinage. In other words there is no "Shifa Jar" under the Shia law. All the three defence witnesses denied the plaintiff's assertion that Talab-e- Mawasibat or Talab-e-Ishhad was made by the plaintiff or for that matter the plaintiff had ever shown any interest in the land although he had full knowledge of sale even before the transaction was finalised in favour of defendant No, 1.
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' The learned Senior Civil Judge after hearing the evidence came to the conclusion that the suit was maintainable. Thus Issue No, 1 was decided affirmatively. Issue No, 2 was also decided affirmatively and it was held that the chunks of land are adjoining each other and are irrigated by a common watercourse. It was held "that the plaintiff is the pre-emptor of the suit land". Issue No, 4 was disposed of by the learned Judge in the following manner : "There is word against the word and this issue remains unproved for want of sufficient cause. Findings accordingly." Issue No, 3 related to the demands. It is well known that a preemptor in order to successfully press his pre-emption right must prove that he had discharged the initial burden by making the first mandatory Talab known as Talab-e-Mawasibat and the second obligatory Talab known as Talab- e-Ishbad. ' On the first Talab the findings of the learned Judge are in favour of the plaintiff and the learned Judge has recorded these findings in clear terms. Para. 9 of his judgment runs as under :- "9. Plaintiff has examined P. W, Abdul Rehman who has deposed that he told plaintiff about the transaction in question who immediately expressed that he being pre-emptor of the suit land will purchase the suit land. He has stated that plaintiff immediately alongwith witnesses went to defendant No, 1. Thus it is clear that P. W. Abdul Rehman has fully supported the version of plaintiff so so far first demand. i,e, Talab-e-Mawasibat is concerned. The burden rested on plaintiff to prove that two demands i,e, Talab-e-Mawasibat and Talab-e-Ishhad were made by him according to law in presence of the witnesses. As regards Talabs under Muhammadan law, what is required is that the pre-emptor must assert his claim immediately on getting information of the sale. This is called as Talab-eMawasibat. So in the present case it stands established that Talab-eMawasibat was made by plaintiff according to law." ' Having crossed all the hurdles in his way the plaintiff bumped against a highly technical obstruction which proved to be fatal and has resulted in the dismissal of the suit obliging the plaintiff to file this appeal. The learned Judge has held that the second essential demand known as Talab-eIshhad was no doubt made by the plaintiff but due to certain lapse in making this demand this second (Talab-e-Ishbad) remained ineffective, and as such plaintiff was not entitled to-the relief claimed in the suit. ' Paras. 11 and 12 are germane to the point involved and as the whole controversy rests around this point it is necessary to focus our attention on this part of the judgment. "11. P. W. Muhammad Khan has deposed that in his presence and P. W. Moula Bux, plaintiff told the defendant No, 1, that P. W. *[Here in italics] ' Abdul Rehman has informed him about the purchase of suit land by defendant No, 1 and he further told him that he was pre-emptor of the suit land and asked him (defendant No, 1) to accept the sale price and transfer the suit land in his favour but defendant refused to do so. P. W. Muhammad Khan has stated that plaintiff Hussain Bux asked them to bear the witness to his demand. This is all the evidence adduced by the plaintiff to prove his second demand, i,e, Talab-e- Ishhad. ' After discussing the evidence in the above para. The learned Judge proceeds to evaluate this evidence and feels that it falls short of the requirement of the law. This is how he tackles the issue in para. 12 of the judgment : "12. The second demand must include a declaration of his having already asserted his claim. It should be made in presence of two witnesses expressly called on to bear witness to the performance of Talabs and also in the presence either of the seller or the buyer of the land sold. None of the witnesses produced by plaintiff has deposed that while making Talab-e-Ishhad express reference to Talab-e-Mawasibat was made. It is well-established law that no person is
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entitled to the right of pre-emption unless he has declared his intention to assert his right immediately on receiving information of the sale and without any delay has affirmed the intention, referring expressly to the fact that the Talab-e-Mawasibat has already been made. This is called Talab-e-Ishhad which is to be made in presence of two witnesses who were called on to bear the witnesses to the said demand. There is absolutely no evidence that reference was made by plaintiff in presence of witnesses at the time of alleged second demand i,e, Talab-e-Ishhad. Thus the evidence of P. Ws. Moula Bux and Muhammad Khan is not helpful to the case of plaintiff so far, second demand i,e, Talab-e-Ishhad is concerned. No evidence whatsoever has been adduced by the plaintiff to the effect that at the time of making second demand a reference was made to the first demand and the pre-emptor's omission to make such reference is fatal to his claim." I am afraid this is not a correct reading of the evidence. In my opinion such a reference was made and the plaintiff while making the Talab-e-Ishhad before the defendant No, 1 in presence of the two witnesses i,e, Muhammad Khan and Moula Bux had made a mention of the first Talab having been made by him. This is what is stated by him in his examination-in-chief and he has not been contradicted on this point. Portion of the statement of plaintiff is reproduced and the relevant part is underlined* by me : ' Abdul Rehman told me that he had gone to the lands where he saw defendant told him that they have purchased the suit land for consideration of Rs, 80,000 from defendants Nos. 2 to 4. On this I expressed before A. Rehman that 1 being the pre-emptor of the suit land has right to purchase it and I will purchase it from the defendants. Immediately along with witnesses Muhammad Khan and Moula Bux alongwith the amount went to the defendant No, 1 and meet with him, in presence of witnesses I asked the defendant No, I that I being pre-emptor of the suit land has right to purchase it and I expressed before him in the morning. A. Rehman told me about the transaction of suit land and I expressed before him that I being pre-emptor of the suit land has pre-emption right to purchase it. I asked the defendant No, 1, to transfer the suit land to me and accept the amount of Rs, 80,000 for the same, as I being pre-emptor of the suit land, I asked the witnesses to be the witnesses of my demand and in presence of them I counted the money." ' Note the sentence "and I expressed before him that in the morning A. Rehman told me about the transaction of suit land and I expressed before him (means Abdul Rehman) that I being pre- emptor of the suit land has pre-emption right to purchase it." ' The plaintiff is obviously narrating the event of the morning and is repeating what he had said to Abdul Rehman in the morning. It is significant that in the earlier sentence there is an assertion of the right when the plaintiff is talking face to face with the defendant while the same sentence is being repeated in the latter part. But this is mere reproduction of what was said to Abdul Rehman in the morning. The word "him" in the latter part stands for Abdul Rehman and not the defendant. This is referable to the Talab-e-Mawasibat. ' This position is in harmony with the text in the plaint. Read para. 9 of the plaint and mark the sentence in capital letters. "THE PLAINTIFF AFTER MAKING REFERENCE TO THE FIRST DEMAND OF TALAB-E-MAWASIBAT" ' It appears to me that the above material escaped notice of the learned Judge or may be that under the glare of the case-law on the point the factual position was over-shadowed and resulted in adverse findings. I would have closed this appeal in view of my analysis of the facts and the evidence in the case. But as the learned counsel have referred to a few cases, I feel that I should venture to add something more to clear the mist, as far as I can, which hangs in the background on account of the growth of a legal concept starting from 1890 when the Full Bench case was decided by the High Court of Calcutta. Conscious of the limitations and restraints under which I have to survey the legal opinion rendered during the century I proceed to examine the case-law on the subject.
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Reference may be made to the recent decision of our own Courts in which my brothers have in plain and unambiguous terms reiterated that if an express mention is not made of the 1st demand "Talab-e-Mawasibat",1 at the time of making the second demand, the defect would be so fatal In an unreported judgment in First Appeal No, 1/80 Ajmal Mian, J. To defeat the claim of pre-emption itself dismissed the appeal on the sole ground "that omission to make reference to first demand at the time of making the second demand is fatal to th claim of pre-emption. In another case reported as Jadal v. Abdul Majeed (1), Channa, J. Also held the same view and expressed himself as follows :- "So far as the second occasion on which Talab-e-Ishhad is said to have been made, though it was made on the very same day on which respondent No, 1 came to know of the sale of the property in question, and two witnesses were taken by him to expressly witness (1) PLD 1978 Kar. 732 the demand, no reference at that time was made to the Talab-eMawasibat earlier made by him in his house. Thus an essential requirement of the Talable-Ishhacl was not fulfilled in the instant case. . . . Q J . . . ' I am therefore of the view that the respondent No, 1 has failed to establish his right of pre-emption in respect of the house in dispute inasmuch as the Talab-e-Ishhad was not duly made as requited by law. I would accordingly, allow this appeal with costs, set aside the judgment and the decree of the learned 1st Appellate Court and restore the judgment and the decree of the learned Civil Judge." ' In this case reliance was placed on a case reported as Muhammad Luqman v. Ameer All (I) and in order to keep the continuity to trace the origin of this view I would also quote from this Dacca case. This is also a Single Judge case and the point involved was the same. Quoting Mullah on Principles of Muhammaden law the learned Judge concluded as follows :- "The view expressed above, finds support on a decision of the Calcutta High Court in the case of Rujjub All Chopedar v. Chundi Churn Bhadra and others. In that case a Full Bench of the Calcutta High Court consisting of Petheram, C. J. Princip. Pigot, O`Kinealy and Ghose, JJ. Held that it was necessary that when performing the Talab-e-lshhad the pre-emptor should declare that he had made the Talab-i-Mowasibat. To the same effect is the decision in the case of Mubarak Hussain v. Kaniz Bano and others. In that case a Division Bench of the Allahabad High Court, consisting of Stanley, C. J. And Sur-Kitt, J. Held that expressed reference to Talab-e-Mowasibat is necessary when second demand, namely, Talab-e-Ishhad is made. This question also came for consideration in the case of Sadiq All v. Abdul Baqi Khan and another. The view expressed was that if the pre- emptor in making the second demand failed to call the attention of the witnesses to the fact that he had already made the first demand, the second demand was not valid. A Division Bench of this Court consisting of Amin Ahmed and Chowdhury, JJ. As their Lordships then were, held in the case of Nazir Ahmed and others v. Muhammad Sheir All and another that inasmuch. As at the time of making the second demand, that is Talab-e-Ishhad before witnesses, no reference was made that the pre-emptor had already made the first demand of Talab-e-Mowasibat, the second demand was not made in accordance with law, and the pre-emptor's omission to make such reference was fatal to his claim. ' In the present case the plaintiffs have neither claimed nor adduced evidence to the effect that at the time of making the second demand a reference was made to the first demand. That being so, I am of opinion that the plaintiffs are not entitled to claim pre-emption and the learned Courts below erred in law in not directing their attention to this question." ' It may be noted that in all the three cases quoted above the learned Judges have based their findings not on reasonings but have pitched their authority on the precedents quoted in the judgments referred to above. As such it is PLD 1969 Dacca 64
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' necessary to investigate whether the view taken in those judgments is inconsistent with the original text relating to this doctrine. ' Before going to the basic case of the Full Bench I would like to make a mention to some other cases also decided by the Allahabad High Court. In Abbasi Begum v. Afzal Hussain (1), two learned Judges of that High Court in a second appeal dealing with this question held as follows :- "It is admitted that when the second demand was made to the vendee no words were used referring to the prior demand which had been made inside the house. This is found by the Judge to be an insufficient compliance with the law. We think that he was right for the reasons set forth in the judgment of the Full Bench of the Calcutta Court in the case of Ruffub Ali Chopedar v. Chundi Chura Bhadra I L R 17 Cal. 543. The decision of that Court is one in which we concur. We are informed that this ruling has been followed in other cases in this Court." ' In another judgment reported in this Volume at page 499 a Single Judge, Aikmanj relying on the above two cases held as follows :- "In my opinion the appeal must succeed. In the case of Nundo Pershad Thakur v. Gopal Thakur I L R 10 Cal. 1008, it was held by Garth, C. J. And Beverley, J. That when a person seeking pre-emption had performed the Talab-e-Mowasibat in the presence of witnesses and as soon as possible on the same day in the presence of the same witnesses demanded his right from the vendor and purchaser, it was unnecessary that he should again state when making his demand that he had declared his right as soon as he heard of the sale, that is, that it was unnecessary for him to make any reference to his immediate demand. The present case is on all fours with that case. But that case was dissented from and overruled by a Full Bench of the Calcutta Court in Rullub Ali v. Chundi Churn Bhadra, I L R 17 Cal. 543, which latter case has been followed by this Court in Akbar Hussain v. Abdul Jalil 1 L R 16 All. 383 and in a recent case Abbasi Begum v. Afzal Husen I L R 20 All. 457. That these latter rulings are correct is, in my opinion, clear from the definition of Talab-e- Ishtishhad given on p. 489 of Baillie's Digest of Mohummadan Law (2nd Edition). By "Talab-e- Ishtihad," says that learned author is meant a person calling upon witnesses to attest his Talab-e- Mowasibat or immediate demand". It appears to me impossible to invoke witnesses to attest the fact that an immediate demand has been made without making some reference to that immediate demand. ' The learned counsel for the respondent argues that that Talab-e-Ishtishhad is merely a rule of evidence according to the Muhammadan Law and is no longer of any validity. Be that as it may, I am bound to follow the decisions of this Court to which I have referred. ' For the above reasons I allow this appeal and, setting aside the decree of the lower appellate Court with costs, restore that of the Court of first instance." ' Before going to the basic case to examine the reasonings in that case I may refer to one more case reported as Mubarak Hussain v. Kaniz Bano (2). In (1) (1898) 20 All. 457 (2) I L R. 27 All. 163 this short judgment also a Division Bench of that High Court held the view :- "It has so laid down by our brother Aikman in the case of Abid Husen v. Bashir Ahmad I L R 20 All. 499, the headnote to which case runs as follows :-"When in asserting a claim for pre-emption, the making of the Talable-Ishtishhad is required, it is absolutely necessary that at the time cif making this demand reference should be made to the fact of the Talab-e-Mowastibat having been previously made, and this necessity is not removed by the fact that the witnesses to both demands are the same." In his judgment our brother Aikman refers to a Full Bet* ruling of the Calcutta Court in the case of Rullub Ali Chopedar v. Chundi Churn Bhadra I L R 17 Cal. 543, which overruled an earlier judgment . Of that Court in the case of Nundo Pershad Thakur v. Gopal Thakur I L R 10 Cal.
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1008. In the latter case it was held that if the witnesses of both demands were the same, it was unnecessary to refer, when making the second demand, to the fact that the first demand had been made. In the Full Bench case it was held that "it is absolutely necessary that at the time of making this demand (i,e, the second demand) reference should be made to the fact that the Talab-e- Mowasibat had been previously made, and this necessity is not removed by the fact that the witnesses to both demands are the same." We can well understand why the law in this respect should be so strict. The second demand is not made for the information of the witnesses,. But for the information of the vendee or vendor, to whom it happens to be made. If the witnesses to both the immediate and second demands be the same, it naturally does seem unnecessary to repeat the same thing to them ; but then at the second demand not only may the same witnesses be present but also a third party, namely, the vendee or vendor must be present, and it is for his information that at the second demand reference is required to be made to the fact that the first and immediate demand had been made. The only authority against this view of the law which has been cited to us is that of Chotu v. Hussain Bakhsh 1893 Weekly Notes 101. To that case our brother Aikman, to whose judgment in the later case we have referred, was a party. In another case Sahibzadi v. Allandiya Khan 1902 Weekly Notes 147 our brother Aikman, with another learned Judge of this Court, was a party to a judgment affirming practically the judgment in the case of Abid Husen v. Bashir Ahmad. So that the weight of authority of this Court is in favour' of the view taken in the last-mentioned case, and the authority of the Calcutta High Court also favours the same view. In view of this preponderance of authority we are not prepared to hold that the view expressed by the lower appellate Court is incorrect. We must therefore, affirming it, dismiss this appeal with costs." ' I may now refer to the basic case which was decided by the Calcutta High Court as early as 1890 and is a converging point for the view that the valuable right of the pre-emptor to have a first option of purchase of the property in which he is either a co-sharer or immediate neighbour should be brushed aside even though he has fully and competently made the Talab-eMowasibat (jumping demand) and…
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