ADNAN IQBAL CHAUDHR Y, J.---F.C. Suit No. 34 of 2007 filed by the Applicant (Plaintif f) for pre-emption was dismissed by the learned II-Senior Civil Judge, Sukkur by judgment and decree dated 01-04-2009 and 04-04-2009 respectively; and the Applicant's Civil Appeal No. 32/2009 was also dismissed by the learned III-Additional District Judge, Sukkur by judgment and decree dated 1 1-10-201 1; hence this revision application.
2. The property pre-empted by the Plaintif f (Applicant) was a shop which had been purchased by the Defendant (Respondent) by sale deed dated 10.10.2 006. The Plaintif f claimed that he was shaft-i-jar as he was owner of an adjoining shop at the back of the suit shop; that he came to know of the sale on 15-04-2007 and immediately made both the talb-i-mowasibat and the talb-i-ishaad before the Defendant in the presence of witnesses, namely Abdul Hameed and Illahi Bux.
The Defendant pleaded that he was not a stranger and he too was in occupation of a shop that was adjoining the suit shop. He denied that the Plaintif f had ever invoked the right of pre-emption and denied that the Plaintif f had made the talbs as alleged. On his examin ation-in-chief the Defendant also took the stance that he had sold 50% of the suit shop to his father by a sale deed dated 23.05.2007. Since such transfer was made pending suit and apparently to defeat the suit, the appellate court observed that nothing turned on such transfer .
3. Heard the learned counsel and perused the record.
4. Both the Courts below held that the suit shop being commercial property , was exempt from pre-emption; and doing so, reliance was placed on a judgment by a learned single Judge of this Court in M.R. Sons v. Junaid Associates (Pvt.) Ltd. (PLD 1990 Karachi 387), and on an observation made in the separate note of one of the three learned Judges of the Honourable Supreme Court while granting leave to appeal in Abdul Rahim Khan v.
Asif Ali Khan (PLD 2001 SC 137). It appears that both the trial court and the appellate court were not properly assisted in that regard, in that, it has been held by the Supreme Court in Government of NWFP v. Said Kamal Shah (PLD 1986 SC 360) that a shop which is not waqf property or Government property , is not exempt from pre- emption. Again, in Muhammad Shabbir Ahmad Khan v. Government of Punjab (PLD 1994 SC 1) it was held that a property in an urban area is not exempt from' pre-emption. The decisions in Said Kamal Shah and Muhammad Shabbir Ahmad Khan are by larger Benches of the Shariat Appellate Bench of the Supreme Court, whereas the case reported at PLD 2001 SC 137 was only a leave granting order . Therefore, I agree with the learned counsel for the Applicant that the observation in the impugned judgments that a commercial property is exempt for pre-emption, is erroneous. But then, the suit was not dismissed on that score alone. There is also a concurrent finding of fact that the Plaintif f had not made the talb-i-mowasibat immediately on acquiring knowledge of the sale which was fatal to the suit.
5. The case set-up in the plaint was that on 15-04-2007, the Plaintif f, along with Abdul Hameed and Illahi Bux, were standing in front of the suit shop when they saw the Defendant open its shutter; that since the Defendant was a stranger , the Plaintif f asked him who he was, on which the Defendant informed that he had purchased the suit shop for Rs. 150,000/- by sale deed dated 10-10-2006; and that is when the Plaintif f made the first demand of talb-i- mowasibat followed by the second demand of talb-i-ishhad in the presence of the said witnesses. However , the deposition of the Plaintif f was that: "On 15-04-2007 I came to know about the bargain. I came to my shop. Thereafter , I with my brother Abdul Hameed, Illahi Mix accompanying, went to see the suit shop in order to visit and purchase . So when we went on shop, in our presence Amjad Ali came and got opened the lock of the door of shop and informed us that he has purchased the same from Zahoor Ahmed on the consideration of Rs. 150,000/-. On that, I in presence of witnesses made request Amjad Ali that I have got right over the shop to purchase and I am ready to pay the sale consideration of Rs. 150,000/- but he refused. Second time I made demand in presence of witness Abdul Hameed and Illahi Bux that I am ready to purchase the shop and pay sale amount but he refused."
The deposition of PW Illahi Bux was also that: "On 15-04-2007, 1 and co-witness Abdul Hameed were present on the shop of Abdul Majeed. Abdul Majeed requested us to accompany to visit a shop adjacent to his shop with intention to purchase the same ."
6. Therefore, contrary to the case set-up, the evidence was that on 15.04.2007 the Plaintif f had gone over to the suit shop with the intent to invoke the right of pre-emption. That being so, it was manifest that the Plaintif f had prior knowledge of the sale of the suit shop in favor of the Defendant; and then, the talb-i-mowasibat allegedly made by the Plaintif f on meeting the Defendant afterwards at the suit shop, cannot be said to be a jumping demand' made immediately on acquiring knowledge of the sale. It is settled law that if talb-i-mowasibat is not made immediately on acquiring knowledge of the sale, then it will be deemed that the shaafi has forgone his right of pre-emption.2 In Rana Muhammad Tufail v. Munir Ahmed (PLD 2001 SC 13), a delay of 4 hours in making the talb-i-mowasibat was found fatal to the suit. It is also settle d law that the right of pre-emption being a feeble right, the pre-emptor is to be put to strict proof as to the making and the observance I D of the requisite talbs. {{FOOTNOTE}} Other name for talb-i-mowasibat.
2 Government of NWFP v. Said Kamal Shah (PLD 1986 SC 360); Rana Muhammad Tufail v. Munir Ahmed (PLD 2001 SC 13 ); Mian Pir Muhammad v . Faqir Muhammad ( PLD 2007 SC 302 ).
3 Hedaya. {{FOOTNOTE}}
7. In view of the foregoing, since the evidence shows that the talab-i-mowasibat, if made at all, was made with an unexplained delay , the impugned judgment and decree do not call for interference. Consequently , this revision application is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.