RAJA FAYYAZ AHMAD, J.--- This appeal under section 96, C.P.C. Has been preferred against judgment and decree dated 3-1-1998, passed by the Senior Civil Judge, Quetta whereby suit filed by the appellant for pre-emption has been dismissed, with the. Prayer to set aside the impugned decree and to decree the suit of the appellant/plaintiff with the costs.
2. Briefly, the stated facts of the case are that on 3-4-1997 the appellant instituted suit for possession through pre-emption of land situate at Mohal Chashma Baleli Mouza Baleli Tapa Baleli Tehsil and District Quetta against the respondents on the stated averments that the appellant/plaintiff is the owner of lands situate in Mohal and Mouza Chashma Baleli Tapa Baleli Tehsil Quetta as per Khatooni and Khewat No. 16/4, whereas; the respondent No. I sold his agricultural land bearing Khasras Nos.666, 623, 591, 554, 400, 662, 404, 666/645, 405, 668 and 402 situate in Mohal and Mouza Chashma Balch Tapa Baleli, Tehsil and District Quetta measuring 81 rods 30 poles in favour of the respondents Nos.2 and 3/defendants (vendees) against the consideration of Rs.40,00,000 on .3-3-1997, which property accordingly stands transferred in favour of the vendees vide mutation effected in the relevant Revenue Record. It was further averred in the plaint that the appellant recently came to know about such sale transaction, therefore, he immediately and without loss of any time performed the requisite Talbs i.e. Talb-e-Muawasibat and Talb-e-Ishhad in accordance with the requirements of law of pre-emption but to no avail. It is further case of the appellant that the respondents/vendees are strangers in the said Mohal who do not own any landed agricultural property in the afore said Mohal except the one purchased by them as afore mentioned. It was prayed that decree for possession through pre-emption of suit property mentioned hereinabove be passed in his favour against the receipt of the above quoted amount of sale transaction, with, the further prayer that the mutation of sale transaction attested in favour of the vendees on 3-3-1997 may be declared as illegal on receipt of the pre-emption amount and instead such mutation be directed to be entered in favour of the appellant.
3. It may be noted that initially the suit came up for hearing in the Court of Civil Judge-III, Quetta and was registered as Civil Suit No.26 of 1997 but subsequently, vide order, dated 7-7-1997 passed by the District Judge, Quetta the case file was transferred to the learned Senior Civil Judge, Quetta on the ground that another suit for pre-emption in respect of the subject-matter of the suit was also pending in the Court of Civil Judge-I, Quetta. In the instant matter the respondents moved application for transfer of the case, whereas; in the other suit similar application was filed and both the transfer applications were disposed of by learned District Judge vide his common order, dated 7-7-1997 whereby both the suits were transferred to the file of learned Senior Civil Judge, Quetta for disposal in accordance with law and thereupon the instant suit was registered as Civil Suit No. 124 of 1997.
4. Respondents Nos.2 and 3 (vendees) filed their joint written statement on 3-5-1997 in the trial Court wherein certain preliminary objections were taken besides contesting the suit on merits. On merits it has been averred in the written statement that the vendees did not purchase the suit- lands described in para. No.2 of the plaint rather out of these lands only eight acres of the land was purchased by them vide sale agreement, dated 20-8-1996 against consideration of Rs.2,90,08,500 at the rate of Rs. 60 per sq. Ft. Being the actual sale price of the, property at the relevant time. It was explained in the written statement that on the same date another sale-deed was executed by the vendor in favour of the vendees/respondents wherein the sale consideration of the land measuring eight acres was shown by the respondent No.1 (vendor) as Rs.40,00,000 who, however; vide a separate agreement acknowledged the receipt of the actual sale price of the transaction and the vendees did not insist for the actual price of the land to be incorporated in the sale-deed. Pursuant to the sale transaction as per averments contained in the written statement, possession of the sold property was delivered to them by the vendor i.e. Respondent No.1 and on coming into possession of such property they developed and levelled the property by incurring several lacs of rupees who as per their plan of establishing a housing scheme on such land constructed a building by incurring a huge investment. It was denied that the land in question was sold on 3-3-1997 and according to the case of the vendees the appellant/plaintiff was fully aware of the aforesaid sale transaction and the works carried out by them on such land but he never raised any objection to the same and by his conduct and waived his right, if any. It was also denied that the appellant has any right to pre-empt the land on the ground mentioned in the plaint.. The vendees in their written statement pointed out that the appellant and his other relatives have sold their own properties in the same Mohal and Monza to various strangers and many other land owners of the same Mohal have also sold their property to different persons and thus, the appellant in such view of the matter also is not entitled to claim the alleged right of pre-emption: It was specifically denied that the appellant made Talb-e-Mawasibat and Talb-e-Ishhad in the exercise of his stated right. Of pre- emption and moreover; it has been averred in the written statement that the appellant has no locus standi to institute the suit because he does not own any property contiguous or adjacent to the property in question and further it was contended that present market value of the suit property is not less than Rs.35,00,000 and that the appellant intends to exploit the situation and wants to black-mail vendees because the actual sale price was not shown in the sale-deed.
Respondent No.1 vendor also filed his written statement in the trial Court wherein the suit has been contested on factual and legal grounds, identical to the same as contained in the written statement filed by the vendees/ defendants.
5. The appellant/plaintiff along with the suit filed an application under Order XXXIX, rules 1 and 2, C.P.C. Read with section 151, C.P.C. Praying therein that the respondents be restrained from alienating, selling or changing the nature of the property till the disposal of the suit who by their rejoinders to the application contested the grant of ad interim relief prayed for by the appellant.
The learned trial Court vide order, dated 4-4-1997 directed that status quo position in respect of the suit property to be maintained and finally by its order, dated 9-6-1997 confirmed the status quo order earlier granted by it and disposed of the application accordingly. The respondents being aggrieved of the ad interim order finally passed by the trial Court on 9-6-1997 preferred Civil Miscellaneous Appeal No. 13 of 1997 before this Court which was allowed by this Court vide order, dated 16-6-1997 and the impugned order was set aside on the grounds mentioned therein. The appellant being dissatisfied with the order passed by this Court on 16-6-1997 filed civil petition for leave to appeal No. 100/Q of 1997 before the Honourable Supreme Court and by consent such petition was converted into an appeal and the same was disposed of by the Honourable Supreme Court in the following terms:-- "That the respondents may continue to execute the development work on the land which respondents Nos.2 and 3 have purchased from respondent No.1 and which, according to Mr. Shakil Ahmed, learned Advocate Supreme Court for respondent No.3, comprises 32 rods at their own risk and costs subject to the result in the pending suit, but should not create interest of third parties."
6. The learned trial Court framed the following issues out of the pleadings of the parties:--
(1) Whether the suit of plaintiff is liable to be dismissed in view of L/O "C" "D" and "F"?
(2) Whether proper court-fee has not been affixed on the plaint?
(3) Whether defendant No.1 sold disputed land bearing Khasras Nos.666, 623, 591, 554, 400, 662, 404, 666/645, 405, 668, 402, situated Mohal Chashma Balch Mouza Balch Tehsil and District Quetta measuring 41 acres 81 rods 30 poles to the defendants Nos.2 and 3 for consideration of Rs.40,00,000'?
(4) Whether plaintiff has performed Talbs as per law for pre-emption?
(5) Whether plaintiff is entitled for possession of disputed land through right of pre-emption?
(6) Whether the plaintiff is entitled for relief claimed?
(7) Relief?
7. The appellant/plaintiff in support of his case examined five witnesses namely Fazalur Rehman's (P.W.1), Nabi Bakhsh, Halqa Patwari (P.W.2), Manzoor Ahmed (P.W.3), Syed Ibrahim Shah (P.W.4) and Haji Sahib Jan (P.W.S). Whereas; the appellant appeared as his own witness.
Respondents/defendants did not produce any witness and one Muhammad Tahir son of Haji Abdul Karim got recorded his statement as attorney for the respondents Nos.2 and 3 (vendees), whereas; the respondent No. I vendor did not give statement before the trial Court and finally the learned trial Court i.e. Senior Civil Judge, Quetta vide judgment and decree, dated 3-1-1998 dismissed the suit of the appellant, impugned before this Court in the instant appeal.
8. Issue No.1 i.e. Whether the suit of the plaintiff is liable to be dismissed in view of L/O "C" "D" and "F"?
Is based upon the preliminary objections raised in the written statement filed by the respondents which are respectively reproduced hereunder:-- "Preliminary objection "C" that the suit is barred by the principles of acquiescence, estoppel and waiver, therefore, the same is liable to be dismissed.
Preliminary objection "D" that the alleged claim of the plaintiff is violative of the principles of Mohammaden Law, therefore, the suit filed by him is legally not competent, as such liable to be dismissed.
Preliminary objection "F" the verification is not in accordance with the provisions of C.P.C., thus, the plaint being not properly verified is liable to be dismissed."
Issue No.1 comprises of the above mentioned preliminary objections and the learned trial Court while disposing of Issue No.1 resolved the objection "C" in negative, whereas; in respect of objection "D" it was observed that the same as pertains to the merits of the case, therefore, to be disposed of along with the other issues struck on merits and it appears from the impugned judgment that the same was resolved in affirmative and whereas; objection "F" was decided in negative. The learned trial Court resolved Issue No.2 pertaining to the court-fee in negative, Issue No.3 resolved in the terms that only eight acres of suit-land was purchased against consideration amount of Rs.Forty lacs, and the Issues Nos.4 and 5 have been decided against the appellant/plaintiff as a consequence whereof the Issue No.6 also decided in negative and the suit consequently has been dismissed.
9. (P.W.1) Fazalur Rehman's deposed about Talb-e-Mawasibat and Talb-e-Ishhad. According to him the parties are known to him and stated that defendant No.2 (Muhammad Younus) is resident of Karachi, whereas; defendant No.3 (Sharaf-ud-Din) is resident of Chaman. He further deposed that he has seen the suit property which is situate at Chaman Road near to Air Port Police Station, whereas; the property owned by the plaintiff is situate in Sheikhmanda, Mohal, adjacent to the suit property. He further stated that the suit property is covered under Khasra No.400, whereas; the land owned by the plaintiff is under Khasra No.401. Narrating about the transaction he stated that the suit property was sold by the defendant No. 1, about 5/6 months back to the defendants Nos.2 and 3 (Muhammad Younus and Sharaf-ud-Din) and about such sale transaction the plaintiff came to know about 10115 days back in Tehsil who thereupon; obtained copies of the mutations and thus, narrating about the Talb-e-Mawasibat made by the plaintiff, the witness stated that as the plaintiff carne to know about the sale transaction of the suit-land declared/claimed that he has a right of pre-emption on the suit-land and thereafter according to the witness they both visited the suit property who further stated that he, Haji Nauroz (plaintiff) and Haji Hassan visited on to the suit property where plaintiff claimed to be having his right of pre-emption. This witness deposing about the second demand i.e. Talb-e-Ishhad stated that on the next day he along with Nauroz (plaintiff), Ibrahim Shah (P.W.4), Haji Sahib Jan (P.W.5) and Manzoor Ahmed (P.W.3) visited Rehman's Builders Masjid Road where Haji Nauroz (plaintiff) stated to Mohsin that he is ready to make payment of the amount against which they have purchased the disputed property and with reference to such transaction Haji Nauroz (plaintiff) stated to Mohsin, to convey the same to Sharaf-ud-Din and Muhammad Younis, whereupon; according to the witness Mohsin replied not to go into litigation and that they are ready to make payment of the amount as per plaintiff's demand. The witness describing the events stated that Mohsin, however; stated that he would inform him within a week.
The witness on being cross-examined stated that he is not aware about the date, month and day of the transaction, however the consideration amount of the sale transaction was transpired on obtaining copy of the mutation. He further stated that at about 3/4 p.m. Plaintiff had told to him about the sale transaction and at that time Haji Arshad and Manzoor Ahmed were present and till 5/6 p.m. They were present in the shop. In the cross-examination part of his statement the witness stated that on the next day he and Nauroz (plaintiff) visited Tehsil at about 10 or 10-30 a.m. And about 2/3 hours were spent at Tehsil and that before obtaining the copy of the mutation the plaintiff had claimed right of pre-emption and at such time Patwari, Qanungo and others were present but he does not remember their names and according to him at about 3/4 p.m. They went on the disputed land. He also stated that before going to Tehsil they went to the shop and thereafter visited the disputed land and according to him, the land owned by the plaintiff is situate at a distance of 2/3 kilometers from the suit-land. He also stated that the plaintiff's land measuring about 1-1/2 acres is contiguous to the suit-land and is under cultivation. The witness denied that land covered under Khasra. No.401 comprises of a Nullah/Sailaba drain (Manda).
(P.W.2) Nabi Bakhsh produced the property Fard of the plaintiff as Exh.P.1. The witness in the cross- examination disclosed that he has seen land covered under Khasra No.401 and admitted that water flows through Khasra No.401. He, however; denied that the length of the land under Khasra No.401 runs into miles and on his own stated that the same covers a sufficient length and further stated that the length of the watercourse of Khasra No.401, commences ahead from Western by- pass which comes to its end at a distance from the agricultural college. Responding to the cross- questions of the defendant's counsel, the witness stated that Mutation No.182 referred in Exh.P./1-A (as per original record) pertains to Khasra No.401 and admitted that in the original record in the relevant column "Paimana Haqiat-e-Aab" has not been mentioned while in Exh.P./1 in the column of Paimana-e-Haqiat Aab 15 Shabana Roz has been mentioned and according to the witness three Saya amounts to 15 Shabana Roz which has been incorporated in the light of the original record.
The witness further admitted that the note endorsed on Exh.P./1 has not been mentioned as such in the original record i.e. Exh.P./1-A, who further stated that 15 Shabana Roz water was previously used to be obtained from the Karez which has now dried up.
(P.W.3) Manzoor Ahmed is the witness to the second demand i.e. Talb-e-Mawasibat. He deposed that he does not know the vendees ' and is also not aware to whom the suit property previously belonged to and stated that the plaintiff owns land in the same Mohal. According to him about 4/5 months back it had come to knowledge that respondent No.1 (vendor) sold land to the respondents Nos.2 and 3 namely Muhammad Younis and Sharafuddin. According to the witness Haji Nauroz had shown to him and to Ibrahim Shah, Sahib Jan and Fazalur Rehman's, the copy of the mutation who had stated that some one has purchased land in their Mohal and the witness narrating the sequence of the facts stated that the plaintiff had asked them to accompany him because he wanted to assert his right of pre-emption and thereupon; they along with the plaintiff went to a office situate at Masjid Road where one person namely Mohsin was present to whom the plaintiff stated that he has a right of pre-emption on the suit-land purchased by him, to which said Mohsin stated that he has not purchased rather Muhammad Younis and Sharafuddin purchased the same and that Mohsin further stated that the vendees are not present there and that in any case, if the plaintiff has any claim then he would inform him after talking to the concerned. This witness in the cross-examination stated that the land owned by the plaintiff is not under the cultivation and stated that the document of mutation was shown to him at 10-00 a.m. He further disclosed that the land of the plaintiff is situate at a distance of 3/4 kilometers from the suit property.
(P.W.4) Syed Ibrahim Shah is the witness to the subsequent demand i.e. Talb-e-Mawasibat and according to him about six months back from today, he along with the plaintiff Fazalur Rehman's, Manzoor Ahmed and Sahib Jan went to Rehman's Builders, Masjid Road and met to a person namely Mohsin, where the plaintiff asked Mohsin to convey to the concerned people on his behalf that he has the right of pre-emption on the land purchased by them and to have their money/amount within a week otherwise the plaintiff would approach to the Court, on this according to the witness, Mohsin stated that if any settlement could be arrived apart from the legal proceedings to which the plaintiff answered in negative. The witness also stated that the said Mohsin is the Incharge of the respondents. In the cross-examination part of his statement, stated that at about 11/12 noon they visited Mohsin and no mutation document was shown to him. He also stated that Mohsin had himself' told that he was the Incharge of the vendees.
(P.W.5) Haji Sahib Jan is also the witness to the Talb-e-Mawasibat, who deposed that on a day, he visited the shop of the plaintiff and to him the plaintiff stated that he had some work with a person whose shop is located at Masjid Road whereupon; he, plaintiff and two of his companions Ibrahim and Arbab Fazal went to the office situate at on first floor Masjid Road and the plaintiff' to a person sitting in the office stated that the property which he purchased is valuing of Rs.40,00,000 and further the plaintiff asked to that person whether he is to make payment then and there or the same to be deposited in the bank and on this according to the witness that person stated to settle/decide the same with them so that both the parties to remain happy. The witness stated that thereafter they left the office. Answering to the questions put by the defendant's counsel the witness stated that about 5/6 acres of plaintiff's land is contiguous to the suit property and in the same breath stated that he has no knowledge if any land of the plaintiff is contiguous to the suit property or otherwise. He also stated that before going to Masjid Road, the plaintiff had not talked about sale and purchase of the land.
Plaintiff Haji Nauroz Khan deposed that he owns lands in Baleli and Sheikh Manda and according to him he used to visit Tehsil and thus, in the month of March, 1997 he was present in Tehsil when he came to know that the suit property has been sold and at that time Fazalur Rehman's (P.W.1) was also accompanying him. Whereafter he asked for the grant of copy of the 'mutation and when they were on their way from Tehsil, Haji Hassan met him whereafter, according to the plaintiff he visited the suit property and claimed his right of pre-emption thrice. The plaintiff further stated that on the next day he along with Syed Ibrahim Shah, Sahib Jan, Fazalur Rehman's and Sahibzada Manzoor Ahmed visited the office of Al-Rehman's Builders situate at Masjid Road where Mohsin Ali was present, to whom the plaintiff stated that they have purchased the property and as to whether he is to make payment in the office or the same to be deposited in his account. Thereupon; according to the plaintiff Mohsin Ali stated, not to institute suit and to have a deal with them. In the cross- examination part of his statement, plaintiff admitted that in Mohal Balch and Sheikh Manda he has sold land to 40 persons. He also admitted that he has sold lands which was jointly owned by him with his brothers and similarly joint lands have been sold by his brothers to the extent of their shares. He further admitted that he did not institute any suit of pre-emption in respect of the lands sold by his brothers to the extent of their shares in the joint lands. The plaintiff responding to the questions put to him by the defence counsel stated that he had filed a suit for pre-emption in the year 1990 against a person but did not remember as to against which persons he had filed such suit besides Mughul Company. He admitted that Mark `A' annexed with the plaint is not contiguous to the suit-land but is situate at a distance of 1-1/2 or 2 kilometers. Plaintiff further admitted that property covered under Khasra No.401 is a Manda/Sailaba drain depth whereof ranges 10/12 feet but denied that it is sullage water Nulla. Plaintiff admitted that the suit property was purchased for Rs.2,90,00000.
10. As above doted the defendants did not produce any evidence nor respondent No.1 (vendor) recorded his statement before the trial Court, however; Muhammad Tahir as attorney for the respondents Nos.2 and 3 (vendees) got recorded his statement before trial Court, he produced Mark `D/1' Tatima of the suit property whereby eight acres of' land was transferred by way of mutation in favour of the vendees on 15-8-1996. According to the attorney subsequent to the purchase of land, the same was levelled and developed besides the constructions raised thereon including the erection of the boundary wall which entailed Lacs of rupees. He stated that the aforementioned property was purchased against the sale consideration of Rs.2.908,500. According to him no land or the plaintiff is adjacent to the suit properly, however; property under Khasra No.401 comprises or a Manila length whereof according to the attorney is about 2/3 kilometers, whereas; its depth is 15/20 feet. The attorney further stated that the disputed land was purchased for establishing a housing scheme and on account or the works being carried out on the disputed land, the plaintiff came to know about the transaction but he did not object to that and according to the attorney suit for pre-emption has been instituted to black-mail; narrating the events he stated that 2-1/2 or 3 months back the plaintiff' had come to the site office along with Aurangzeb where the respondent Sharafuddin was present and had demanded Rs.40,00,000 for withdrawal of the suit and; had also offered that in case Sharafuddin does not want to pay the amount to him, the same to be arranged to be given to him by the Karachi party (Muhammad Younis-respondent No.2). He categorically stated that Mohsin has no concern with the disputed property and the plaintiff also does not enjoy any right of pre-emption. The attorney responding to the question put to him in the cross-examination stated that respondent No.2 is resident of Karachi, whereas; the respondent No.3 is resident of Chaman. He admitted that the vendees do not own any land except the disputed land. He also denied that the plaintiff had made Talbs.
The learned trial Court after hearing the parties vide impugned judgment and decree, dated 30-1- 1998 dismissed the suit of the appellant, which is impugned in the instant appeal.
11. We have heard the learned counsel for the parties at length. Mr. Muhammad Riaz Ahmed, the learned counsel for the appellant contended that:--
(a) During the pendency of the suit before the trial Court, the respondents Nos.2 and 3 sold the suit property to a 3rd party in violation of the order of Honourable Supreme Court dated 26-6-1997 passed in. Civil Petition for Leave to Appeal No. (100/Q of 1997) therefore, the appellant submitted an application under Order I, rule 10, C.P.C. For impleading the 3rd party as defendants in the suit and simultaneously an application under Article 163 of Qanun-e-Shahadat Order, 1984 was filed before the trial Court praying that the plaintiff be allowed to take oath as contemplated under Article 163 of Qanun-e-Shahadat Order, 1984 in respect of the 3rd party interest created in the suit property and the respondents Nos-2 and 3 (Muhammad Younus and Sharafuddin) to rebut the same likewise but these two applications, were summarily rejected by the trial Court vide order dated 3-1-1998 contrary to the law; though it was obligatory for the trial Court to have had issued notice of the 'application to the contesting defendants and thereafter to have disposed of the applications in accordance with law and the rejection of application, without observing the legal and judicial norms has caused miscarriage of justice to the appellant which renders the impugned decree as unsustainable.
(b) Because one of the defendants was resident of Chaman and the other was residing at Karachi (vendees) therefore, it was not practicable for the appellant to have had personally made the required Talb (Talb-e-Ishhad) to them, so, such demand was made to the agent and overall incharge of the suit-land of the vendees-defendants (the learned counsel in support of his contention made reference to the title of the suit about the addresses of the defendants (vendees) and the contents of power of attorney to such effect) and; because the form and procedure of the Talbs being a technical one in its nature, therefore, expressing the required intent on the part of the appellant in the manner of Talb-e-Mawasibat and Talb-e-Ishhad were sufficient to meet with requirement of the demand under Mohammaden Law. Reliance was placed on PLD 1990 Pesh. 181.
(c) The appellant through evidence, in the light of above mentioned position proved his case, which could not be discredited or impeached, therefore, the suit was liable to be decreed and the impugned decree as such to be reversed, also for the reason that the superior right to pre-empt the land was proved by the appellant. He placed reliance on 1996 SCMR 856.
12. Controverting the above contentions the learned counsel for the respondents submitted that:--
(a) in response to the applications submitted by the appellant under Order I, rule 10, C.P.C. And under Article 163 of the Qanun-e-Shahadat Order, the parties' counsel were heard by the Court which were, for plausible reasons rejected by the Court. Applications were submitted at the stage without any basis when the case was ripe for judgment, which were duly considered and finally rejected on valid grounds, inasmuch as; the grant of application would have been futile in the circumstances of the case.
(b) no valid cause of action was shown because either of the necessary requirements to claim pre-emption right was lacking i. e.
(i) the appellant is not a co-sharer in the property.
(ii) is not a participator in immunities and appendages, such as right of way or right to discharge water.
(i.e) is not an owner of adjoining immovable property; thus, the suit only on such score was liable to dismissal, and the vendees being strangers is not a ground recognized under the Mohammaden Law to claim right of pre-emption.
(c) The landed property of the appellant is situate at a distance of 1-1/2 to 2 kilometers whereas; the other property of the appellant situate at some distance from the suit property is a `Nullah' through and through which cannot be termed as `land' nor is adjacent to suit property.
(d) For both the demands presence of two witnesses, is essential; the 2nd witness of the 1 stated `Talb' was not examined and the 2nd-Talb was never made to the vendees/defendants. The evidence of stated demands are conflicting, and; white making the stated Talb-e-Mawasibat reference to the 1st Talb was not made which is mandatory under the Mohammaden Law.
(e) The mode of performance of Talbs must be strictly observed, non-compliance whereof extinguishes right of pre-emption.
1987 CLC 2006, 1973 SCMR 252 and PLD 1995 Quetta 1 & 29.
13. We, have considered the contentions put forth on behalf of the parties and perused the entire record of the case which has been read over by the appellant's counsel. It is the case or the appellant/plaintiff that he is the owner of landed property under Khewat No. 16/4 situate in Mohal Monza Chashma Baleli, Tappa Baleli, Tehsil Quetta, whereas; the respondent No.1 also he'.1 agricultural land bearing Khasras Nos.623, 666, 591, 554, 400, 66_, 404, 666/645, 405, 608 and 402 in the same Mohal measuring 81 Pods and 30 poles which has been sold by him to' the respondents Nos.2 and 3 (vendees)/defendants against the consideration amount of Rs.40,00,000 on 3-3-1997 which stands transferred by way of mutation in favour of the said respondents in the Revenue Record. It is further the case of the appellant that no sooner he came to about the above mentioned sale transaction effected through mutation attested by the Revenue Officer, he immediately performed the requisite Talbs (Talb-e-Mawasibat and Talb-e-Ishhad) but with no result. It was also averred in the plaint that the respondents/vendees are strangers in the area, as such the appellant has the preferential right to pre-empt the suit-land. Respondents Nos.2 and 3 in their written statement besides certain preliminary objections, contested the suit on merits, contending therein that the Talbs were never performed by the appellant nor any right of pre- emption was available to the plaintiff. It was also explained in the written statement that a part of the suit property was purchased against consideration of Rs.2,90,08,500 at the rate of Rs.60 per sq.Ft. As per sale agreement dated 20-8-1996 which was the actual sale price of the land in question but in the sale-deed the consideration amount of the transaction was shown to be Rs.40,00,000 however; by a separate agreement, the actual sale price has been acknowledged to have been received by the vender (respondent No. 1). It was further averred that at the time of execution of sale-deed possession of the land sold to the vendees was delivered, who thereafter levelled and developed the land and incurred Lacs of Rupees for the purpose of housing scheme. It was denied that the land was sold on 3-3-1997, and that the plaintiff had the knowledge of the transaction since it was struck between the vendor and the vendees but he did not object to the same. Plaintiff's ownership of any adjacent land was also disputed. The vender-defendant also filed his written statement almost on the same lines.
14. Adverting to the contention of the learned counsel for the appellant that application under Order I, rule 10, C.P.C. And application under Article 163 of the Qanun-e-Shahadat Order, 1984 both dated 3-1-1998 were rejected by the trial Court without any legal justification and in summary manner, it may be noted that after close of the parties' evidence arguments were heard by the trial Court and the case was fixed on 3-1-1998 for judgment; on which date both the above mentioned applications were filed. Order sheet of even date reveals that the parties' counsel were present when the applications were heard by the trial Court. Application under Order I, rule 10, C.P.C. Was submitted on the ground that the vendees/defendants during the pendency of the suit created 3rd parties interest in the suit-land in violation of the order of Honourable Supreme Court, dated 26-6- 1997 which as such are required to be impleaded in the suit as defendants, names whereof were disclosed A in the application. Trial Court rejected the application on the ground that no supportingst document was attached with the application and it appears that the appellant wanted to protract the proceedings. Admittedly the contents of the application do not disclose that as to when or by which process or against what consideration the stated 3rd party interest was created and even during the arguments of the instant appeal no such indication was made by the appellant's counsel and; therefore, the learned trial Court was justified in rejecting the application, moreover; the application filed under Article 163 wherein it was prayed that in respect of 3rd party interest oath may be administered to the parties; sufficiently indicate that the plaintiff was not having any positive basis to prima facie indicate that 3rd party interest was created in the suit property. The application under Article 163 of the Qanun-e-Shahadat Order, containing the above mentioned facts was rejected by the trial Court on the ground that both the parties completed their evidence and the case was fixed for final decision on the same date, consequent upon conclusion of arguments.
Evidently the application under Article 163 of' the Qanun-e-Shahadat Order, 1984 was not submitted in support of the plaintiffs' claim as envisaged under the provisions of the Article 163 which primarily are meant in respect of the claim as made in the suit and not to be resorted to in respect of any other fact or event relatable to the subject-matter of the suit, thus, the application being not related to the claim of the plaintiff was not required to be proceeded with. The trial Court no doubt did not reject the application on the above mentioned ground, yet the application even if be competent under Article 163, was rejected on valid ground. 1987 CLC 2006 ref.
15. Reverting to the contention of the respondents' counsel with reference to Issue No.1 comprising of preliminary objection `D' taken in written statements of the respondents and disposed of by the trial Court along with the issues on merits, it may be noted that the plaintiff based his claim of pre- emption in the plaint against the land owned by him under Khatuni and Khewat No. 16/4 situated in the Mohal where the land in dispute is located as well. Under Mohammedan Law only the following mentioned classes of persons and no others are entitled to claim pre-emption namely:--
(1) A co-sharer in the property.
(2) A participator in immunities and appendages, such as a right of way or a right to discharge water; and
(3) owners of adjoining immovable property.
The 1st of the above mentioned classes excludes the second class and the later excludes the 3rd one.
16. Plain reading of the contents of plaint reveal that the appellant claimed the right of pre-emption on the basis of the 3rd class mentioned above, to be the owner of adjoining land under Khatuni and Khewat No. 16/4 but no document of title or Revenue Record to that effect has been produced in evidence by the appellant and in this behalf oral evidence of the plaintiff is available on record which suggest that in the same Mohal plaintiff owns agricultural lands i.e. At Baleli and Sheikmanda but such position has not been challenged by the defendants, therefore, the plaintiff being owner of lands in same Mohal shall be deemed to have been admitted by the defendants/respondents.
Apart from the ownership of immovable property it was obligatory for the appellant to prove that such lands are adjacent to the disputed property in order to establish a valid right of pre-emption to be available to the plaintiff. In such behalf according to P.W.3 Manzoor Ahmed the land of the plaintiff is situate at a distance of 3/4 kilometers from the suit-land, whereas; P.W.5 Haji Sahib Jan stated that he has no knowledge if the plaintiff's land is adjacent to the suit property or not, while the plaintiff did not depose about such a fact, as such; in the light of the above mentioned evidence it can be safely concluded that the plaintiff's land on the basis of which right of pre- emption has been claimed is not adjacent to the suit property.
It is pertinent to note that the plaintiff has claimed right of pre-emption against the entire property vesting in the respondent No.1 (Raz Muhammad vendor) whereas; the defendants in their pleadings asserted that only a part of the suit-land measuring eight acres was sold to the vendees/defendants in respect whereof the relevant mutation has been produced by the defendants (vendees) in their evidence, which is not disputed by the plaintiff.
17. Contrary to the pleadings of the plaintiff in order to establish his right of pre-emption brought on record Exh.P.A. i.e. Produced by P.W.2 (Patwari) in respect of Khasra No.401 of Mohal and Mouza Chashma Baleli, Tappa, Baleli for the year 1979-80 indicating the same to be Shamilat-e-Mohal i.e. Sharers as per ownership ratio (Hasb-a-Hiles Paimana Haqiat) and in the relevant column about nature of property as per Exh.P.A. The words "Ghair Mumkin Lohra" have been incorporated meaning thereby that the property under Khasra No.401 comprises of Nullah/Sailaba drain. Exh.P.A.
Contains a note endorsed thereon to the effect that the plaintiff owns 3-3/5 "Saaia Aab" in Khasra No.401 out of the total shares of 63 Saaia". The witness with reference to the original record Exh.P.A./1 stated that 15 "Shabana Roz" has been incorporated equal to three `Saia' who however; admitted that note has not been G entered in Exh.P.A./1. Be that as it may, figures and calculation of the shares are not material. Exh.P.1 does not indicate that the plaintiff owns share in property under Khasra No.401 because the relevant record showing the names of `Shamilat owners' in the said Khasra number was not produced. Secondly it is not proved that such property is adjacent to the disputed land and thirdly Exh.P/1 reveals that such property comprises of `Ghair Mumkin Lohra'. On the basis of property covered under Khasra No.401 stated to be adjacent to the suit property right of pre-emption cannot be claimed for the following reasons:--
(i) Suit was not based on such claim of ownership.
(ii) Not proved that the property is adjacent to the disputed land.
(i.e) Exh.P.A. Does not indicate that the plaintiff is a co-owner (in Shamilat property under Khasra No.401).
(iv) Property under Khasra No.401 (as per Exh.P.A.) is a Sailaba drain and no right of pre-emption can be claimed against such nature of property, in absence of right of `Shafi-i-Khalit' lacking in the instant case. 1979 SCMR 360 ref.
As above discussed no land owned by the appellant is located adjacent to the disputed land, therefore, the claim for right of pre- emption was not available to the plaintiff which has been rightly so held by the trial Court.
18. It May be pointed that the learned counsel for the appellant did not dispute the findings of the trial Court on Issue No.3 and thus, it is suffice to observe on the basis of evidence available on record that only a part of suit property measuring eight acres was purchased by the vendees/defendants. This issue also pertained to the determination of the sale consideration amount of the property in question which as per findings of the trial Court was purchased by the respondents Nos.2 and 3 against the consideration amount of Rs. Forty Lacs. Such findings of the trial Court has not be challenged by either of the respondents by filing cross-objections or otherwise therefore, we in absence of any challenge, feel it not proper to dilate upon such question.
19. It is an admitted position that Talb-e-Ishhad was not made to either of the vendees or to the vendor (respondent No. 1) and in this behalf the learned counsel for the appellant contended that because the vendees respectively are residents of Karachi and Chaman therefore, it was not possible/practicable for the appellant to have made Talb-e-Ishhad promptly to them personally hence the same was made to the Incharge of the disputed property of the vendees namely Mohsin Ali. So far as residence/place of abode of the vendees is concerned, as pointed out by the appellant's counsel there exists no dispute between the parties nor the learned counsel for the respondent during course of arguments contested such factual position. In order to assert the claim of pre-emption, it is always obligatory for a pre-emptor to prefer the required Talbs in accordance with the norms of Mohammaden Law, to which no departure is permissible. In so far as the subsequent Talb is concerned i.e. Talb Ishhad should be made to the vendees or to the vendor but in the instant matter such demand has not been made to either of them. In any case if the vendees at the relevant time were not available at Quetta such demand as per Mohammaden Law could have been validly made to the vendor but the appellant did not opt for either of the course permissible but preferred the 2nd Talb to one Mohsin Ali of Rehman's Builders Masjid Road; such a demand in absence of evidence to the effect that Mohsin Ali had the authority as that of the vendees, is inconsequential and cannot be equated to that of demand having been made to the vendees. The burden was on the appellant to have proved that Talb-e-Ishhad was competently and validly made. It has not been disclosed in the plaint that Talb-e-Ishhad was made to the authorized agent of the vendees and during the course of evidence produced by the plaintiff attempt was made to suggest that said Mohsin Ali was the over-all incharge of the properties of vendees. Assuming that Mohsin Ali was the incharge of the properties of the vendees/defendants, would not be enough to presume that such charge included all the competence and authority vested in vendees as owners of disputed property. Attorney for the vendees--defendants categorically stated that Mohsin Ali has no concern or connection with the property in question and such part of the deposition has not been challenged in the cross-examination by the appellant. Talb--e-Ishhad not made to a person to whom it is required to be made does M not exist and carries no sanctity under the Mohammaden Law. The manner in which the prescribed demands are to be made must be strictlyobserved and any deviation by introducing one's own mode of preferring Talb-e-Ishhad to a stranger is not recognized under the law of pre-emption. As above discussed there is no evidence available on record to suggest that subsequent Talb was made to the competent person, thus, for such reason as well, the appellant failed to discharge the onus of Issue No.4.
20. Reverting to the `Talbs' as it emerges from the plaintiff's evidence has been noted hereinabove, in respect whereof the appellant's counsel contended that because of the technical nature of the `Talbs' expressing the required intent on the part of pre-emptor in the form of Talb-e-Mawasibat and Talb-e-Ishhad is sufficient to meet the requirements of such demands and in support of his contention reliance has been placed on PLD 1990 Pesh.
181. The Honourable Peshawar High Court seized with the matter in a pre-emption case and attending to the question of Talb-e-Mawasibat and Talb-e-Ishhad observed that it is not material as to in what words or manner the claim is preferred as it will be sufficient if they imply a claim as there is no specific form or manner in which the intention to exercise the right of pre-emption is to manifested.
Ratio of the above quoted dictum of Honourable Court is that the intention of pre-emptor in preferring the claim must be manifest about the exercise of such right irrespective of the words or manner in which it is made; and therefore, the intention of pre-emptor in the P exercise of his right of pre-emption in preferring the claim by making the demands must be manifest, i.e. Clear, unambiguous and consistent. Intention to be manifest used in the above referred case-law is not without significance and is relatable to the words or the manner in which the right of pre-emption is exercised by a pre-emptor.
1973 SCMR 252 and PLD 1995 Quetta 1 ref.
21. According to P.W.1 Fazalur Rehman's the plaintiff gained knowledge about the sale of disputed land in Tehsil when he was also present whereupon; the plaintiff asserted his right of pre-emption and thereafter he along with the plaintiff and one Haji Hassan visited the disputed property where also the plaintiff asserted his right of pre-emption, and; according to the plaintiff in March, 1997 he along-with P.W.1 had gone to Tehsil where Patwari told to him about the sale of disputed land and thereafter he and P.W.1 left the Tehsil and were on their way when Haji Hassan met him and they all visited the disputed property where he thrice expressed his intention to exercise his right of pre- emption. Bare reading of deposition of P.W.1 and the plaintiff, reveals that they both contradicted each other about the place where such right was exercised. According to P.W.1 the plaintiff exercised his right R of pre-emption initially. In Tehsil upon acquiring knowledge of the sale transaction and thereafter the same was repeated on the land in dispute, whereas; according to the plaintiff such right was exercised thrice by him on the land in question where he had gone along with P.W.7 and one Haji Hassan (not produced).
P.W.1 (Fazal-ur-Rehman's), P.W.3 (Manzoor Ahmed) P.W.4 (Syed Ibrahim Shah), P.W.5 (Haji Sahib Jan) and the plaintiff himself have deposed about the performance of Talb-e-Ishhad. According to P.W.3 about 4/5 months back he came to know that Raz Muhammad (vendor) has sold land to Muhammad Younus and Sharafuddin (vendees) when Haji Nauroz (plaintiff) showed the mutation to him, Ibrahim Shah, Sahib Jan and Fazal-ur-Rehman's who stated to them that some one has purchased land in his Mohal and therefore, we too accompany him because he wanted to prefer his claim of pre-emption and thereupon; they along with the plaintiff went to an office at Masjid Road, where one Mohsin was present, to whom the plaintiff stated that he (Mohsin) has purchased the suit property and that the plaintiff has a right of pre-emption on such land but Mohsin denied to have purchased the land rather stated that the same has been purchased by Younus and Sharafuddin. According to the witness Mohsin had further told that the vendees are not present there and that in any case if he (plaintiff) has any claim, he (Mohsin) would talk to the concerned and will inform him. According to P.W.1 Fazalur Rehman's on the next day after the demand of Talb- e-Muwasibat he along with the plaintiff, Ibrahim Shah, Haji Sahib and Manzoor visited the office of Rehman's Builders Masjid Road, Quetta.
Describing about the demand of Talb-e-Ishhad P.W.1 deposed that the plaintiff stated to Mohsin that he is ready to make payment of the price of land against which it was purchased by them and such offer he too communicate to Muhammad Younus and Sharfuddin, to which Mohsin stated not to go into litigation and that they would meet their demand of money, he (Mohsin) however; further stated that he will inform within a week. In substance so far as the claim preferred by the plaintiff as peril, deposition of these two witnesses is concerned, is conflicting on material S points. P.W.4 narrating about the Talb-e-Ishhad deposed that the plaintiff told to Mohsin to inform the concerned on his behalf that he has a claim of pre-emption on the purchased land, who to receive price of the land within a week from him otherwise he would resort to legal action and according to P.W.5 Haji Sahib Jan, the plaintiff stated to the person present in the office that the land purchased by him is valuing Rs.Forty Lacs payment whereof he is ready to make on the spot or to be deposited in the bank. Thereupon according to the witness, the said person stated, to avoid litigation and to have a deal with them. Deposition of the plaintiff is in line with that of P.W.5 Haji Sahib Jan except to the extent that P.W.5 with reference to the plaintiff's demand also mentioned the value of property.
Admittedly the second demand i.e. Talb-e-Ishhad was not made immediately after the 1st demand and on the next day the later demand T was made and for such delay no explanation has been given, the delay so caused in making Talb-e-Muwasibat is fatal to the right of pre-emption. It is evident that the day on which the plaintiff on having come to know about the sale transaction had obtained the copy of mutation in question and thus was aware about name of the vendees and the particulars of their addresses and such fact is also evident from the deposition of P.W.3 but still the plaintiff chose to prefer the claim of pre-emption to a 3rd person namely Mohsin. No explanation nor any reason has been given by the plaintiff as to why he did not prefer his claim to the vendees and in any case, if it was not practicable for him to assert the claim directly to the vendees, as argued before us, it could have been made to the vendor in case of non-availability of the vendees or that if it was not practicable to lodge the claim of pre-emption with least delay but the permissible course was not adopted and such legal aspect has already been dealt hereinabove. The version of plaintiff's witnesses is conflicting and inconsisting in respect of the demand of Talb-e-Ishhad as well. According to P.W.3 Manzoor Ahmed the plaintiff before going to Rehman's Builder's office had shown to him and to Ibrahim Shah, Sahib Jan and Fazalur Rehman's, the mutation in question and further told that some one has purchased land in his Mohal, whereas; P.W.4, P.W.5 and the plaintiff did not say a word about such stated fact however; P.W.4 Ibrahim Shah in his cross-examination stated that on the same day he was told by the plaintiff and thereupon they visited the office of Rehman's Builders. The learned trial Court in its judgment appraised and assessed the entire evidence on record in true perspective and for valid reasons discarded the plaintiff's evidence.
22. Yet an additional reason which affects adversely, the validity of demands was not taken notice of by the trial Court is that the witnesses of the plaintiff and the plaintiff himself did not mention that while asserting the 2nd demand reference of the earlier claim of pre-emption was made and non-observance of such a prescribed condition is fatal to the claimed right of pre-emption and therefore, due to failure to make Talbs in the prescribed manner would extinct the right of pre- emption, which are required to be observed strictly. 1973 SCMR 252, PLD 1995 Quetta 1 and 29 ref.
For the foregoing reasons we, do not find any merit in the appeal, accordingly the same is dismissed. The parties are left to bear their own costs.