' KHADIM HUSSAIN M. SHAIKH, J..---This civil revision application is directed against the judgment dated 12.08.1997 and decree dated 18.08.1997, passed by the Court of IVth Additional District Judge, Hyderabad in Civil Appeal No,93/1996 re-Gul Muhammad v. Muhammad Rafique and another, whereby the judgment dated 26.05.1996 and decree dated 03.06.1996, passed by the Court of IVth Senior Civil Judge, Hyderabad in F.C. Suit No,233/1987 re-Muhammad Rafique v. Gul Muhammad and another, decreeing the aforesaid suit, have been set-aside, dismissing the suit filed by applicant Muhammad Rafique.
2. Briefly the facts of the case are that on 31.05.1987, applicant Muhammad Rafique had filed F.C.
Suit No,233/1987 re-Muhammad Rafique v. Gul Muhammad and another for pre-emption in respect of Cantonment Shop No,323/2, situated at Saddar Bazar, Hyderabad, in the Court of IVth Senior Civil Judge, Hyderabad. The case of the plaintiff is that the commercial cum-residential building, on the cantonment plot No,41/323 at Saddar Bazar, Hyderabad, has a shop having No,323/2 and residential house having No,323/1; Annual rental value of both the tenements of the building is assessed separately by the Cantonment Board Hyderabad; the house is jointly owned by the plaintiff and his brother Muhammad Shafique and whereas the shop belonged to one Muhammad Yousif Khan and on his demise it devolved on one Siraj Ahmed Khan, the defendant No,2, who surreptitiously sold out the shop to the defendant No,1 Gul Muhammad for Rs,70,000/- under registered sale deed dated 03.09.1986; on 30.4.1987 plaintiff came to know from defendant No,1 that the shop has been sold to him; immediately on receiving intimation of the sale, the plaintiff there and then at the door of the shop and in presence of defendant No,1 made Talb-i-Muwathibat by asserting his right by saying that he was exercising right of pre-emption in respect of Shop No,323/2, Saddar Bazar Hyderabad; the plaintiff thereafter immediately collected witnesses Muhammad Azam son of Haji Saeed Rasool and Muhammad Shah son of Muhammad Siddique and brought them to the shop, where in presence of defendant No,1, he made Talb-i-Ishhad by saying that defendant Gul Muhammad has purchased shop No,323/2 Saddar Hyderabad of which he is Shafee, he has already claimed his privilege of Sheffa and now again he claims it in their presence and they be witness; he offered the same price to the defendant No,1 for which he had purchased the shop, the defendant No,1, refused, hence he filed the suit.
3. The suit was contested by defendant No,1 Gul Muhammad, who filed his written statement, wherein he denied all the allegations and claims of plaintiff. Muhammad Rafique. It is further the case of defendant No,1 Gul Muhammad that the property No,323/1 is a residential house and the property No,323/2 is a shop and both the properties are separate properties and also owned by the separate owners; the defendant No,2 entered into an agreement of sale of the shop No,323/2 on 16.8.1984 and delivered possession of the said shop to the defendant No,1 on 16.8.1984 as purchaser, hence the suit is hopelessly barred by time; subsequently there had been another agreement for sale on 16.04.1986; the sale agreements and the sale deed executed by the defendant No,2 in favour of the defendant No,1 were within the knowledge of the plaintiff; the plaintiff has not made the demand of Talb-i-Muwathibat or Talb-i-Ishhad as alleged by him; the suit is not maintainable; no cause of action has accrued to the plaintiff to file the suit; and the plaintiff is not entitled for the relief claimed.
4. The defendant No,2 Siraj Ahmed did not turn up and accordingly he was proceeded against ex- parte.
5. On the divergent pleadings of the parties, the trial court framed the following issues:--
1. Whether the suit is not maintainable?
2 Whether the suit is barred by law of limitation?
3 Whether plaintiff is Shafi-e-Shareek, Shafi-e-Khaleet and Shafie-Jar in respect of suit shop?
4. Whether plaintiff on 30.04.1987 made requisite talbs, asserting right of pre-emption?
5. What should the decree be?
6. To establish his case, the plaintiff examined himself as PW-1 at Ex.60, he produced registered sale deed at Ex.61 and extract from the General Land Register of Hyderabad, Cantt. At Ex.62; PW-2 Muhammad Shafi at Ex.63; PW-3 Muhammad Azam at Ex.64 and then the plaintiff closed his side vide statement at Ex.65.
7. The defendant No,1 Gul Muhammad examined himself as DW-1 at Ex.79, he produced agreement of sale at Ex.80 and receipts of payment at Ex.80/1 to 80/8, a photograph at Ex.83, DW-2 Shaikh Qamar Deen at Ex.84, DW-3 Shaikh Shafi Muhammad at Ex.85, DW-4 Fateh Muhammad at Ex.86 and then the defendant No,1 closed his side vide statement at Ex.87.
8. After hearing the parties' counsel, the trial court vide its judgment dated 26.05.1996 and decree dated 03.06.1996, decreed the suit of plaintiff Muhammad Rafique.
9. Having felt aggrieved by and dissatisfied with the said judgment and decree passed by the trial court, defendant No,1 Gul Muhammad filed appeal being Civil Appeal No,93/1996 re-Gul Muhammad v. Muhammad Rafique and another in the court of District Judge, Hyderabad, which has been ultimately decided by the court of IVth Additional District Judge, Hyderabad, vide judgment dated 12.08.1997 and decree, dated 18.08.1997, whereby the said appeal has been allowed and impugned judgment and decree passed by the trial court have been set-aside, dismissing the suit filed by applicant Muhammad Rafique, hence this civil revision application.
10. Learned counsel for the applicant has mainly contended that applicant Muhammad Rafique being Shafi-i-Shareek, Shafi-i-Khaleet and Shafi-i-Jar had rightly exercised his right of pre- emption over the subject shop and he by adducing supporting evidence had established his case, therefore, the trial court decreed his suit for pre-emption; that the appellate court has allowed the appeal filed by the Respondent No,1 Gul Muhammad without appreciating the evidence; that the appellate court has wrongly decided the question of maintainability of the suit against the applicant by misapplying the case law while passing the impugned judgment and decree and thereby the appellate court in exercise of its jurisdiction has acted illegally and with material irregularity. He, therefore, prays that the impugned judgment and decree, passed by the appellate court may be set-aside and the judgment and decree, passed by the trial court may be restored, allowing the instant revision application. He has placed his reliance on the cases of Government of N. W.F.P. v. Said Kamal Shah (PLD 1986 SC 360), M. R. Sons v. Junaid Associates (Pvt.) Ltd. (PLD 1990 Karachi 387), Shahnawaz v. Ali Nawaz (2010 YLR 1388) and Ahmed Raza Thaheem v. Ghulam Mohiuddin (2014 CLC 1615).
11. Conversely, learned advocate for respondent No,1, has mainly contended that the trial court while passing the judgment dated 26.05.1996 and decree dated 03.06.1996, had failed to appreciate that applicant Muhammad Rafique had no right of Shafa; that the requisite demands relating to the pre-emption were not made by the applicant Muhammad Rafique; that the vendor of the subject property having Shia sect and the subject property being a commercial property, situated in cantonment area, right of pre-emption was not applicable to the subject property; that applicant Muhammad Rafique had failed to establish his case for pre-emption; that appellate court rightly allowed the appeal filed by Respondent No,1 Gul Muhammad and set-aside the impugned judgment and decree passed by the trial court according to law and following the dictums laid down by the Honourable superior courts; that the Impugned judgment dated 12.08.1997 and decree dated 18.08.1997, passed by the appellate court do not call for any interference. He, therefore, prays that the instant revision application may be dismissed. He has placed his reliance on case of Subhanuddin v. Pir Ghulam, (PLD 2015 Supreme Court 69), Dr. Pir Muhammad Khan v. Khuda Bukhsh (2015 SCMR 1243), Khyber Khan v. Amanullah Khan (2007 SCMR 1036), M.R. Sons v. Junaid Associates (Pvt.) Ltd. (PLD 1990 Karachi 387) and Atta Hussain Khan v.
Ghulam Rasool Khan (1985 MLD 1130 (Lahore)).
12. I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
13. During the course of arguments before the appellate court and before this Court, it was argued by the learned advocate for the Respondent No,1 that the vendor of the subject property belongs to Shia sect for which the right of pre-emption is not available to Shafi-e-Khaleet or Shafie-Jar. Per him, the residential house occupied by the applicant Muhammad Rafiq and the shop occupied by the Respondent No,1 Gul Muhammad are two separate properties, therefore, the plaintiff also does not come within the definition of Shafi-e-Shareek. In fact such plea as to vendor's belonging to Shia sect was not taken in the pleadings by the defendant No,1/ Respondent No,1 and thus this plea was not an issue before the trial court, which was rightly rejected by the appellate court.
14. In case of Messrs M.R.SONS (supra), on which the reliance has been placed by learned Counsel for both the parties, this Court while dismissing the suit for pre-emption involving the commercial property has held that:- "The object behind the application of the law of pre-emption was to safeguard the privacy of Muslim families. In the Dacca case, it was observed by Chowdhury, J that:-- ' The object underlying the preemption under the Muhammadan Law is to prevent the inconvenience which may result from the introduction of a disagreeable stranger as a co- parcener or as a near neighbour. It is based on the saying of the great Prophet of Islam.
' Reference was made in the judgment to the following passage from Hamilton's "Hedaya" Book XXXVIII, Chapter III, page 591 which reads:-- ' The privilege of shaffa takes place with respect to immovable property notwithstanding it be incapable of division such as bath, a mil or a private road. Shafei maintains that nothing is subject to Shaffa but what is capable, of being divided, because (according to his tenets) the end of Shaffa is to obviate the inconvenience attending a division of property which does not hold in a property incapable of division. Our doctrine however, is grounded on a percept of the Prophet who has said: `Shaffa' takes place with regard to all lands or houses'. Besides, according to our tenets, the grand principle of Shaffa is the conjunction of property and its object (as we have already explained) is to prevent the vexation arising from a disagreeable neighbour; and this reason is of equal force whether the thing be divisible or otherwise.
' It, therefore, leaves no doubt that the right of pre-emption cannot be enforced in case of commercial properties because the question of disagreeable neighbour in such cases does not arise.
15. Admittedly the subject property is a shop situated in Saddar Bazar, Hyderabad and is a commercial property, therefore, no right of pre-emption is enforceable in respect of the subject property. Moreover, admittedly the defendant No,1 has remained in possession of the subject property since last more than two decades wherein he has been running business and as such he is not a completely stranger for the plaintiff and thus in my humble view, on this score alone, the suit of the plaintiff Muhammad Rafique was liable to be dismissed.
16. It is also an admitted position that the house bearing No,323/1, which the plaintiff claims to be his property and the shop bearing No,323/2, on which the plaintiff claims his alleged right of preemption, are situated in Cantonment area Hyderabad. It is the plaintiff's own case that annual rent of both the properties is assessed by the Cantonment Area Board Hyderabad. The plaintiff himself has produced document namely extract from General Land Register of Cantonment, Hyderabad in respect of house No,323/1 and four relevant columns Nos.5, 7, 8 and 9 thereof read as under:-- {{TABLE}}
5. Descriptions House No,323/1
7. By whom managed Cantt Board Land lord Govt. Of Pakistan Holder of
1. Occupancy rights Mr. Muhammad Rafiq son of Muhammad Yaqub
2. Mr. Muhammad Shafiq son of Muhammad Yaqub {{TABLE}}
17. Perusal of Ex-62 reveals that the property namely the house bearing No,323/1, which the plaintiff claims to be his property, falls within the cantonment area and is the property of Federal Government and only occupancy rights are granted to the plaintiff and his brother Muhammad Shafique.
18. In case of Mst. Shoukat Ara v. Additional District Judge, Peshawar and 3 others, which involved the question of right of pre-emption on the property falling in Cantonment area Peshawar, a Division Bench of Peshawar High Court has held that:-- "12. From the above decisions, in which the law of pre-emption has been discussed in the context of the injunction of Islam for the exercise of the right of pre-emption, it is well-settled that leasehold right in a land would not give freehold right to a person to exercise his right of pre- emption under the Muhammadan Law unless Milkiat or ownership is shown with regard to the said properly. The property in dispute is admittedly the ownership of the Government and has been only leased out to the respondent for a fixed period on payment of annual rent, hence the essential ingredients as required under the Muhammadan Law for the exercise of the right of preemption is missing in this case and no suit could be brought by the petitioner against the respondents in this regard."
19. In another case i,e, case of Atta Hussain Khan and 2 others (supra), which involved the question of right of preemption on the property falling in Cantonment area of Gujranwala, Lahore High Court has held that:- "The law on the point has been well-settled by a long line of precedents. Irrespective of the status or qualifications of the preemptor no right of pre motion exists in respect of sale of any land which is within a cantonment unless the Provincial Government has by a notification otherwise declared, Further for a pre-emptor to succeed the right of pre-emption must exist at three stages: At the time of sale of the land, at the time of institution of the suit and at the time the suit is decided. The Supreme Court judgment in Mst.Nawaz Fatima v. Muhammad Sarwar NLR 1981 SCJ 653, wherein the facts were almost analogous to those of the case in hand, reaffirms this principle. Indisputably right of pre-emption touching the sale of the land in dispute did not exist when it was purchased by the respondent when the petitioners instituted suit and when the suit was dismissed because the land during this period was within the cantonment area. "
20. In view of the above, I am of the opinion that there exists no right of preemption in respect of the property falls within the Cantonment area and thus on this score too the suit of plaintiff was liable to be dismissed.
21. It needs no reiteration that the right of pre-emption is a feeble right and evidence in case of exercise of right of preemption being oral evidence is required to be a direct and confidence inspiring evidence and that too duly supported by the witnesses. The burden of proof lays upon the pre-emptor to establish and prove the requirements of two demands i,e, Talb-iMuwathibat, which is also known as a jumping demand and Talb-i-lshhad.
22. From the evidence it would be seen that plaintiff Muhammad Rafique in his evidence has failed to substantiate his pleadings as his evidence is not in line with his pleadings, in as much as the plaintiff attempted to make improvements by deposing that when he was fixing iron door in the wall, the defendant No,1 objected and informed him that he has purchased the disputed shop on which he asserted his right of pre-emption, but he asked him that this is his property, therefore, he did not allow him to fix a door although no such facts are pleaded in the plaint; the plaintiff did not assert in his evidence that immediately there and then he asserted his right of preemption which was the requirement for a valid jumping demand i,e, the Talb-i-Muwathibat; he also did not state about the amount of Rs,70,000/- being the sale price as averred in the plaint; the plaintiff's case in plaint is that he and his brother - Muhammad Shafique are joint owners of the house No,323/1 and whereas in his deposition he claimed himself to be the sole owner of the said property; the plaintiff in his deposition has deposed that the intervening wall of the shop of the defendant No,1 and the plaintiffs alleged shop is a common wall although there is no mention about the alleged common wall and the alleged shop of the plaintiff in his plaint; the plaintiff has also neither mentioned the time of gaining the alleged knowledge of sale of the shop from the defendant No,1 in his plaint nor has he stated so in his deposition, which was also mandatorily to be mentioned and proved in view of the well settled law; Plaintiff's two witnesses namely Muhammad Shah P.W.2 and Muhammad Azam, P.W.3, who both have in general terms stated that about 8 years and about 8/9 years back they were made as witnesses of the alleged exercise of right of pre-emption by the plaintiff, who in their presence made second Talb i,e, TalbIshhad. Moreover the evidence of both the said witnesses of the plaintiff is contradictory in nature as plaintiff's witness Muhammad Shafi has stated in his deposition that all the shops were lying open at that time while his other witness Muhammad Azam has deposed that all the shops were lying closed; witness Muhammad Azam stated in his deposition that plaintiff Muhammad Rafique came to the shop of Muhammad Shafi and disclosed that defendant Gul Muhammad did not allow him to affix a door and disclosed that he had purchased the shop where the plaintiff wanted to affix a door, but this fact about fixing of door and resistance of the defendant No,1 Gul Muhammad has neither been deposed by the plaintiff himself nor has it been deposed by the other witness Muhammad Shafi in their respective depositions nor such fact is mentioned in the plaint. Apart from the above there are many other material contradictions regarding acquiring knowledge of the sale of the subject property and making Talb- i-Muwathibat and Talb-i-Ishhad, in the evidence adduced by the plaintiff, which cannot be ignored in the instant case involving exercise of right of pre-emption. In rebuttal the defendant No,1 Gul Muhammad denying the claim of plaintiff regarding performance of alleged Talbs, stated that the sale was already within the knowledge of the plaintiff.
23. In case of Subhanuddin and others (supra), Honourable Supreme Court has held that:-- "The foundation of the claim of pre-emption rests on making an immediate declaration of intention to assert one's right (Talb-iMuwathibat) and if this is not done the entire structure collapses.
' Shari'ah requires honesty and truthfulness in one's dealing and false statements made to obtain an advantage is an anathema to Almighty Allah: "0, you who believe! Be afraid of Allah, and be with those who are true" (Surah 9, At-Taubah, verse 119);" And be not like her who undoes the thread which she has spun after it has become strong, by taking your oaths a means of deception amongst yourselves" (Surah. 16, An-Nahl, verse 92); "And make not your oaths, a means of deception among yourselves, lest a foot may slip after being firmly planted, and you may have to taste the evil of having hindered from the Path of Allah and yours will be a great torment" (Surah 16, An-Nahl, verse 94). Therefore, when an undue advantage is sought to be gained on the basis of a completely unsubstantiated statement it would disentitle a shafee to claim preemption. This was not a case where the plaintiff had been unable to establish the price that he contended was paid for the said land, but instead a case where a plea which had no basis in Oct was taken to gain and advantage."
24. In case of Dr. Pir Muhammad Khan (supra), the Honourable Supreme Court has held that:-- "we have also seen that there are also material contradictions as regards there claim of acquiring knowledge of sale on 15.2.1999 qua making Talb-i-Muwathibat and Talb-i-Ishhad, which short comings cannot be lightly brushed aside, particularly in a case of preemption where strict adherence to the requirements of law for making Talb-i-Muwathibat and Talb-i-Ishhad is necessary.
13. By now, much case-law regulating the principles of pleadings in a suit for pre-emption has developed, which provide necessary guidelines for this purpose. Here a reference to the case of Muhammad Ali v. Mst. Humera Fatima and 2 others (2013 SCMR 178) will be useful, wherein after making reference to plethora of other case-law on the subject of pleading in a suit for pre- emption, this Court observed as under:-- "(7) With regards to the necessity of pleading the requisite details of Talb-i-Muwathibat, the matter recently yet again came up before this Court. After noting and quoting the previous judgments of this Court on the point including, Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302). Bashiran Begum v. Nazar Hussain (PLD 2008 SC 559), Hag Nawaz v. Muhammad Kabir (2009 SCMR 630) and Ghafoor Khan v. Israr Ahmed (2011 SCMR 1545), this Court in its judgment, reported as Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911), held as follows:-- "4. Having heard learned Counsel for the petitioner at some length, we find that a bare reading of Para 2 of the plaint in the suit filed by the petitioners/pre-emptor indicates that Petitioner did mention that he came to know about the impugned sale on 5-3-1996 and immediately declared that he would preempt but neither mentioned the place where he acquired knowledge of the sale nor the time or the witnesses in whose presence he performed Talb-i-Muwathibat. "
(8) We have examined the plaint in the instant case in the light of the requirement of pleading Talb-i-Muwathibat with the necessary details and particulars and find that the same does not fulfill the criterion laid down by this Court quoted above. The absence of the necessary details with regard to time, date and place and the witnesses in whose presence Talb-i- Muwathibat was made was fatal to the suit, as was correctly held by the trial Court and the First Appellate Court.
(9) Furthermore, not only Talb-iMuwathibat has to be pleaded in the plaint with the requisite details and particulars, but also has to be proved through cogent evidence. After appraisal of the evidence of the record, the trial Court returned a finding that the Talb-i-Muwathibat has not been proved. The said finding was affirmed by the First Appellate Court. This concurrent finding of fact has been upset in the limited jurisdiction of a Second Appeal without any legal or factual basis. In the impugned judgment no misreading or non-reading of evidence or misapplication of law, pertaining to evidence has been mentioned. Consequently, there was no occasion to set aside the concurrent findings of fact."
' Moreover, use of word 'immediate' in the context of making talb-i-muwathibat and words the least practicable delay in making talb-i-ishhad have their own connotation and significance, which has burdened the pre-emptor with some extra liability of showing complete promptness in making such demands rather than making Talb-i-Muwathibat in a casual manner and Talb-i- Ishhad in presence of two witnesses simpliciter. Keeping in view these aspects, when we revert to the facts of the present case, we find that the two talbs were not made by the respondents in the required manner of vigilance and promptness."
25. In case of Khyber Khan and others (supra), the. Honourable Supreme Court as held that:-- "4. In view of the setting at rest a controversy by a five members Bench of this Court in Mian Pir Muhammad (ibid) by holding that omission to mention the time, date and place of making of Talb-e-Muwathibat in the plaint would be fatal to a suit of pre-emption we need not resolve the dispute between the parties as to whether or not the plaintiff possessed superior right of pre- emption. The plaintiff has though mentioned in the plaint the date of making Talb-e-Muwathibat but had failed to specify in the plaint the time and place where the Talb was made. Omission to mention anyone of the three particulars in the plaint would in view of the rule in Mian Pir Muhammad's case resulted in the dismissal of a preemption suit. Resolution of this question does not require any factual determination, as the same is determinable from the bare reading of the plaint.
5. As the plaint of the plaintiff/Respondent failed to meet the requirement set in Mian Pir Muhammad's case we are constrained to allow this appeal, set aside the impugned judgment of the High Court as well as the judgment and decree of the trial Court and dismiss the suit of the plaintiff respondent, with no order as to costs."
26. From the above, I am of the considered view that the plaintiff has failed to prove the performance of Talb-iMuwathibat and Talb-i-Ishhad.
27. The case law relied upon by the learned advocate for the applicant is not attracted to the circumstances of this case except the case of Messrs M.R. Sons (supra) as the properties involved in all the cases were neither commercial properties nor the properties did fall within the cantonment areas and there were also no material contradictions and other discrepancies etc. As are available in this case, were involved therein. However, in case of Messrs M.R. Sons, suit for preemption in respect of a commercial property was dismissed as discussed in para- 14 supra.
28. In view of what has been discussed above, the judgment and decree, passed by the trial court was not sustainable and the appellate court by setting-aside the judgment and decree of the trial court, and dismissing the suit of the applicant Muhammad Rafique has not committed illegality and the impugned judgment and decree also do not suffer from any jurisdictional defect, attracting the provisions of section 115 of the Code of Civil Procedure Code. Learned advocate for the applicant has also not been able to point out any illegality or jurisdictional defect in the impugned judgment and decree, therefore, the instant Revision Application is dismissed with no order as to costs.