SADIQ HUSSAIN BHATTI, J.---Through this revision application, the Applicant has impugned the judgment dated 27.8.2011 and decree dated 30.8.2011, passed by the learned II-Additional District Judge, Thatta, dismissing Civil Appeal No.52/2009, which was filed by the Applicant assailing the judgment dated 17.11.2009, passed by 1st Civil Judge, Thaita, whereby, Suit No.04/2007, filed by the Applicant, was dismissed.
2. Facts of the case are that Applicant is co-owner of 75% share in Survey No.121 and 5, while remaining 25% was owned by one Muhammad Soomar Bhutto 'and on his death, the said 25% share devolved to his legal heirs including Respondents Nos.1, 2 and 3. Through the Family Settlement, the said 25% was assigned to Respondents Nos.1 and 2. According to the averments made in the memo. Of revision application, Respondents Nos.1 and 2 subsequently entered into an agreement to sell with the Applicant. However, later on Respondents Nos.1 and 2 obtained Fouti Khatta in respect of the said 25% share in the names of all legal heirs of the deceased. On 18.2.2007, the Applicant was called at Thatta Police Station and was confronted with the complaint filed by the Respondent No.4, which was denied by the Applicant as false. At the police station, the Applicant was shown mutation of share according to which 0-4-1/2 Ghuntas out of Survey No.121 and 5 was transferred in the names of Respondents Nos.1, 2 and 3. Who, in turn, sold the same to Respondent No.4 under Sale Deed dated 04.12.2006. As per the Applicant, he being co-sharer/co- owner of 75% share in the said survey numbers was Shafi-e-sharik, declared his intention of his right of pre-emption by making Talb-eMuwathibat at once in the presence of witnesses. The applicant offered to purchase the said land at the same price from Respondent No.4, but he refused the same. Thereafter the Applicant made second demand of Talb-e-Ishbad at the site of the suit land in presence of witnesses, which was again refused by the Respondent No.4. Thereafter the Applicant filed a suit for pre-emption which was dismissed and the appeal against the judgment and decree of the trial Court was also dismissed, hence the present revision application.
3. Learned counsel for the Applicant submitted that the Applicant is a major share owner of 75% land in Survey No.121 and 5 and thus he was a Shafi-e-sharik and made a necessary demand at the police station as well as at the site in presence of witnesses. The learned counsel submitted that the Applicant is ready to make further payment in respect of the suit land. It was argued that the impugned judgment is based on surmises and conjectures and is a result of non-reading and misreading of the evidence on record, therefore, it was prayed that the same may be set aside.
4. On the other hand, learned counsel for the Respondents contended that there are concurrent findings against the Applicant and this Court while exercising jurisdiction under section 115 of the Code of Civil Procedure refrain from interfering in concurrent findings of fact. Learned counsel states that the Applicant also filed three cases before the District Court, Thatta, against Muhammad Ibrahim Bhutto, Mst. Maimee and Mst. Aaminat for Specific Performance of Contract, but all these cases were dismissed. Therefore, another case for Damages was also filed by the Applicant, which was also dismissed. According to the learned counsel the impugned judgments are based on sound reasoning and do not suffer from any misreading or non-reading of evidence and, therefore, no interference is called from this Court.
5. I have heard the learned counsel for the parties and have perused the record with their assistance.
6. It is well settled that the object and purpose of law of pre-emption is to prevent the inconvenience, which may be caused to co-sharer/neighbourer of same land due to introduction of disagreeable stranger as a co-partner or as a neighbor. In the base of Government of N.-W.F.P. v.
Said Kamal Shah [PLD 1986 SC 360], it was observed that "According Ameer Ali, "the right of pre- emption in the Muhammadan system owes its origin to motives of expediency and a desire to prevent the introduction of a stranger among co-sharers and neighbours likely to cause inconvenience or vexation". In the cited judgment it was also observed that "for the intention of the LAW, in granting it to a partner, is merely to prevent the inconveniences arising from a division; since if the partner were not to get that share which is the subject of the claim of Shaffa, a new purchaser might insist upon a division, and thereby occasion to him a great deal of unnecessary vexation".
7. In the case of Muhammad Miskeen v. Sammandar Khan and 2 others [PLD 1991 Lahore 217], it was held that 'there is another hurdle and a formidable one or that matter in the way of the petitioners - preemptors. Under Islamic Law right of preemption/Shufa cannot be made the vehicle of enrichment but is to be exercised under extreme necessity". Thus, when a person filed a suit for pre-emption, prime object would be to prevent any vexation/trouble to the partners/co-sharers etc. And not to enrich himself.
8. A perusal of the impugned judgment shows that the Applicant, according to his own statement, owns 75% share in Survey No.121, on which he has built a hospital, while Respondents own a small area measuring four Ghuntas in the said survey. However, he is bent upon depriving the Respondents of this small piece of land also. The learned Appellate Court has made a very relevant observation in the impugned judgment, which reads as under:--.
"Beside this, the appellant for the suit property in the same year of 2007 within the space of little time filed 2-3 suits. The earlier one suit was the suit for specific performance of contract, in which he had alleged himself buyer of the same property and prayed for enforcement of sale agreement and thereafter, he filed suit for preemption. How he can be a buyer and pre-emptor at the same time of the same property. If he was buyer of this same property then he should insist for performance of agreement till the case reaches to its climax. If again same property is sold to a son even then he shouldstand on his previous stand and prove his case through Court of law".
9. It is claimed by the Applicant that on the 75% land owned by him in Survey No.121, he has constructed a hospital. Thus, it is clear that the land owned by the Applicant is situated in a boundary wall and there is no danger that any person buying the adjacent land would cause any nuisance to him. Even this observation, if any, is dispelled when it is seen that the purchaser. Of the suit land is none else, but another co-sharer, who in fact, is closely related to the sellers as the sellers are father and paternal aunt of the Respondent No.4 and, thus, the purchaser is not stranger, who may cause any inconvenience to the partners/cosharers of the land, as he was there since long. In my opinion, it would not be just and proper to force a person to sell his property to neighbor rather than to sell it to his kith and kin.
10. The Applicant cannot be allowed to blow hot and cold at the same time as on the one hand he claims to have purchased suit land from its owners and on the other he filing suit for pre-emption, thereby admitting that suit land was validly sold by the owners to the Respondent No.4.
11. So far as the Talbs (Demands) are concerned, learned trial Court has held that the manners, in which the alleged demands were made, were quite contrary and demands did not fulfill the requirement of Talb-e-Muwathibat or Talb-e-Ishhad. The learned trial Court has discussed this issue in detail and come to the conclusion that the Talbs were not made properly and that there is contradiction in the evidence of the witnesses of the Applicant. It was further held that though the Applicant stated that he made the first demand at Police Station, Thatta in presence of Head Moharrar, but none was produced from the said police station as a witness. Accordingly, the issue relating to Talbs was decided against the Applicant.
17. So far as the Issue No.1 is concerned, the Appellate Court has reversed the findings of the trial Court, however, the same has no bearing on the fate of the suit, as on the other points there are concurrent findings of the Courts below, which I find to be based on evidence on record. Learned counsel for the Applicant was unable to show any misreading or non-reading of the evidence.
13. The upshot of the above discussion is that this revision application is devoid of any merit and the same is hereby dismissed.