1. ' This second appeal has originated on the claim of pre-emption claimed by appellant in respect of some land in which the appellant happens to be a co-sharer. The background of this appeal is that predecessor-in-interest of the present appellants filed a suit being No.24/1973 in the Court of the learned Civil Judge, Kamber claiming the following reliefs:- "That this Hon'ble Court may be pleased to pass a decree of pre-emption in favour of plaintiff putting the plaintiff in possession of the land in suit on payment of the price paid by defendant No.1 to other defendants."
2. ' The allegations in the plaint in which this relief was based are that the plaintiff is co-sharer and co-owner in agricultural land bearing Survey number 369/2 measuring 2-27 acres situated in Deh Pakho, Taluka Kamber, District Larkana. The plaintiff owns 0-50 paisa share equivalent to 1-13 acres in the area and defendants 2 to 6 have a share equal to 0-25 paisa 0-26 Ghuntas out of the Survey number 369/2. That the defendants Nos. 2 to 6 sold their whole share in the suit land to defendant No. 1 through registered sale-deed, dated 16th February, 1972. That the plaintiff being a co-sharer in the property in suit was entitled to claim pre-emption.
3. ' The defendant No. 1 who is purchaser of the land contested the suit. The main contention was that the plaintiff by his conduct, intention and actions has lost and waived right of pre-emption, if any. It was also denied that the plaintiff had made any demands. On this point I may quote the portion of the written statement of the defendant No.1 which is as follows :- "That the contentions of paras. Nos. 5 to 7 of the plaint are emphatically denied. It is denied that the plaintiff came to know about the sale in the first week of December, 1972. It is also denied that the plaintiff has made any demands. It is submitted that the plaintiff has knowledge from very beginning and he made no demands at all."
4. ' On these pleadings the learned Judge framed as many as 6 issues. The controversy, however, has remained confined to issues Nos. 3 and 4 which are as follows:-
(3) Whether the plaintiff has lost his right of pre-emption by conduct, action and intention?
(4) Whether the plaintiff has made valid demands?
5. ' The learned Civil Judge dismissed the suit holding that "in view of my findings on issues Nos. 3 and 4 I dismiss the suit of the plaintiff with costs". As stated above, the issues Nos. 3 and 4 relate to the conduct of the plaintiff/appellant after he acquired knowledge of the sale of the property and proceeded to assert his right of pre-emption. According to plaintiff he came to know of the sale in favour of the defendant No.1 when the latter came to him and demanded the Batai of the crop from the plaintiff. As soon as he informed the plaintiff that he had purchased land and was claiming the Batai, as the owner, the plaintiff made his first demand which is known as Talab-e-- Mawasibat and asserted his right cf pre-emption. The defendant, however, has denied this statement and it remains to be seen which of the two versions is more probable. The findings of the learned trial--Judge regarding knowledge of the plaintiff about the sale are to the following effect: - "The impugned sale admittedly took place in the month of February, 1972. It is also an admitted position that plaintif's son Khillu was Hari of the Survey number in suit at the when defendant No. 1 purchased share in it. Both the parties admittedly belong to the same caste and they also live in the same village. The plaintiff's version that the defendant Karim Bux informed him of the impugned sale for the first time when he came to his Otak for demanding Batai of paddy crop does not appear to be true. It is not believable that a purchaser after purchasing land situated near his village would not visit the land or inform the Hari of the land regarding his ownership for long 8-9 months. The defendant's version that he was given the Batai of the standing crop by the plaintiff and his son appears to be true. The circumstances pointed out above give rise to a presumption that the plaintiff had knowledge of the impugned sale from the beginning and he accepted it without protest.
6. ' From the above discussion I have reached at the conclusion that the plaintiff had admitted the sale without objection and thus lost his right of pre-emption."
7. ' This inference is not borne out by the testimony of the witnesses examined in Court. The plaintiff has categorically stated as follows:- 9 had no knowledge of the sale of the suit land by defendants Nos.2 to 6 in favour of defendant No.1 at the time of transaction. About 6 or 6 years back the defendant No. I came to my Otak at village Dedar and demanded Batai of 25 paisa share of the produce of suit land declaring that he had purchased the share of late S.M. Irfanullah in the suit land. On hearing this I immediately declared my right of pre-emption over the suit land on the ground that I am co-owner in the suit land. Akhan and Ghafoor both residents of village Dedar were present at my Otak at the time when defendant Karim Bux came and narrated the above facts. Then I in the presence of my above two witnesses namely Akhan and Ghafoor made second demand from defendant Karim Bux and expressly referring to the first demand having been made. I also told defendant Karim Bux that I am prepared to purchase the suit land at the same price in which he has purchased it but defendant Karim Bux refused to re-sell the suit land to me. I then filed this suit for pre-emption."
8. ' This version is supported by evidence of Akhan who has stated as follows: - " About 6 or 6 years ago 1, Ghafoor Meo Rajput, plaintiff Budho, his son Khillu and 2-3 other villagers whose name at present I do not remember were sitting in the Otak of the plaintiff in village Dedar when defendant Karim Bux came there and demanded Batai of 25 paisa share of the produce of suit land from the plaintiff saying that he (defendant) has purchased 25 paisa share in the suit land. The plaintiff on hearing this told immediately to defendant Karim Bux that he (plaintiff) is already co-owner in the suit land and as such has right of pre-emption. The plaintiff again in my presence and that of Ghafoor and others told the defendant to re-sell the suit land to him expressly referring to the first demand having been already made but the defendant refused and I left the Otak."
9. ' The second witness Abdul Ghafoor has supported his version in the following words:- "Myself and other villagers including Akhan visit plaintiff's Otak for chit-chat. About 5-6 years ago, I, plaintiff, Budho, Akhan and 5-6 other villagers, whose names I do not remember were sitting at the Otak of plaintiff Budho when defendant Karim Bux came there and told the plaintiff that he has purchasid 25 paisas share in S.No.360/2 of Deh Pakho. Again says that defendant Karim Bux told the plaintiff that he has purchased 25 paisa share in S.No.369/2 of Deh Pakho. The defendant Karim Bux demanded Batai of his share from Plaintiff Budho who replied that he has right of pre-emption over the suit land as he is already co--owner. The plaintiff again in my presence and that of Akhan made demand from the defendant Karim Bux saying that he has already made first demand but the defendant refused to reconvey the suit land and left the Otak."
10. ' In addition to this categorical statement of the three witnesses on oath there is one very important factor to suggest that the sale was kept secret from the plaintiff, In his cross- examination the defendant No. I has admitted that there is a Sub-Registrar at Kamber in which the sale--deed could have been registered but no attempt was made to get it registered at the Kamber Registry. The sale-deed was taken to Larkana where it was got registered. There is suggestion of the learned counsel in cross-examination of this witness that this was a deliberate act in order to conceal the transaction from the plaintiff. No explanation is forthcoming from the defendant No. 1 for not getting that sale-deed registered at Kamber itself and the inference can be drawn that there can be no other motive except the one suggested by A the learned counsel for the plaintiff in the cross-examination. I see no reason to disbelieve the three witnesses who have made the statements on oath that the plaintiff acquired knowledge of the sale for the first time when the defendant No.1 asserted his right as owner and claimed the Batai of the crop.
11. Such seems to be the view of the first appellate Court. The first appellate Court in its judgment has held as follows:- "The trial Court accepted the evidence of respondent Karim Bux that after sale he had informed the appellant and also had taken the Batai. This conclusion on the basis of respondent's evidence seems to be improper and when the sale-deed was got registered at Larkana, when the office of Sub-Registrar is at Kamber and the sale could be registered at the officer of Sub-Registrar at Kamber and this very fact goes to prove that the fact of sale was suppressed to avoid claim of pre- emption. It is also not believable that a person who gets sale-deed registered in his favour at Larkana to avoid the pre-emption would inform the intending pre-emptor. Thus, the finding arrived by the trial Court on issue No. 2 is not proper and based on the presumption and the same is hereby reversed and decided in favour of the appellant."
12. ' The other adverse finding which is concurrent finding of the two Courts below is on issue No.4 and the view' taken by the two Courts is that the appellant/plaintiff had to make two demands, namely, Talab-e-Mawasibat and Talab-e-Ishhad in order to enforce his right of pre-emption. Both the Courts below are, however, of the opinion that the plaintiff had sucessfully made Talab-e- Mawasibat but had failed to make Talab-e-Ishhad which according to them was equally important and failure to make the demand would be fatal to the claim of the plaintiff. There seems to be confusion of thought on this point. Although attempt has been made to show that Talab-e- Mawasibat and Talab-e-Ishhad were made by the plaintiff in presence of two witnesses on the occasion when defendant Karim Bux, had approached the plaintiff in the Otak of the latter demanding Batai but in my view unnecessary stress has been laid on the Talab-e-Ishhad. It is well-settled in law that if the vendor or the vendee have been present at the time when the pre- emptor is making the Talab-e-Mawasibat it is not necessary for him to make. Talab-e-Ishhad separately. It may be stated that Talab-e-Mawasibat or the "jumping demand" must be made as soon as the pre-emptor is informed of the fact that the property in which he is claiming the right of pre-emption has been sold away. This demand cannot be delayed for a single moment. Delay of even minutes or seconds would defeat the right. This demand is followed by the second demand Talab-e-Ishhad and it is made in this way that the pre-emptor must go either to the vendor or the vendee or the property which has been sold and there, in presence of two witnesse, repeat his demand asserting his right of pre-emption and demanding the property from the seller or the purhaser as the case may be. But if the seller or the purchaser happened to be present at the time when the Talab-e-Mawasibat or the first demand is being made, no second demand would be necessary. This is well-settled position of law. I would however, quote a passage from Pakistan Edition of Mulla's Muhammadan Law and some other sources in support of this proposition. At page 276 of this Book the learned author on the authority of the original text has stated the legal position as follows:- "The Talab-i-Ishhad may be combined with the Talab-i-Mowasibat. Thus if at the time of Talab-i- Mowasibat, the pre-emptor has an opportunity of invoking witnesses in the presence of the seller or the buyer or on the premises to attest the Talab-i-Mowasibat, and witnesses are in fact invoked to attest it, it will suffice for both the Talabs (demands). This, however, is the only case in which the Talab-i-Ishhad may be combined with the Talab-i Mowasibat. If under these circumstances a Talab-i-Ishhad is made subsequently and there is no express reference to Talab-i-Ishhad, the right of pre-emption is not defeated as the subsequent demand is superfluous."
13. ' Another well-known author on Muhammadan law is Saxena. In his book "Muslim Law" by Saxena III, 1954 edition at page 689 the learned author writes:- ' Essentials of Talabs.--Under the Muslim System it is necessary that a pre-emptor should make demands known as Talabs. For performing the first Talab called Talab-i-Mowasibat it is necessary that the Shafi or pre-emptor must declare his intention to assert his right as pre-emptor immediately on receiving information of the sale. It is not necessary that he must do so in the presence of any witnesses, nor is it necessary that he must make any offer or tender the price at that stage. Wherever he is, as soon as he comes to know of the sale either by oral intimation or by a letter, he must express his desire to claim his right of pre emption even though nobody may be present at that time. For the second Talab called Talab-i-Ishhad it is necessary that, with the least practica:Ae delay after the first Talab is made, the pre-emptor should make the second Talab in which he must expressly refer to the fact that the first Talab had been made and he must make a formal demand either in the presence of the buyer or the seller or on the premises and in the presence of at least two witnesses. It is not necessary to take the whole or any part of the consideration at the time of making the first or the second Talab, nor is it necessary to make the first demand three times as it is necessary to do so in the case of the Talak or divorce. But it is necessary under law that the pre-emptor should express his desire to purchase the house at the same price as was paid by the purchaser unless the price was not paid in good faith. But it is not necessary to tender the amount at any stage. As regards the interval between the two Talabs, all that the law requires is that there must be least practicable delay.
14. ' Talab-i-Mowasibat and Talab-i-Ishhad--Necessity of.--The rule as to the performance of demands is subject to the exception that where the Talab-i-Mowasibat is made in the presence of the seller if he is in possession of the suit property, the purchaser or on the suit property itself, there is no necessity for the Talab-i-Ishhad separately, as one demand before witnesses is considered to be equal to two demands. This being so, it is clear that though no special words or formula is necessary either for making the Talab-i-Mowasibat or Talab-i-Ishhad the claim which a pre- emptor asserts should be unequivocal.
15. ' Talab-i-Ishhad when not necessary.--The necessity of making second demand, called the Talab- i-Ishhad, is dispensed with if the first demand, called the Talab-i-Mowasibat, was made in the presence of the vendor or the vendee or on the premises sold and in presence of witnesses who heard that demand, even though there was no invocation of those witnesses at the time. The necessity of making reference to the first demand at the time of the second demand is dispensed with if the first demand was made in the presence of the vendor or the vendee or on the premises sold."
16. ' Baillie a well-known commentator on Muhammadan law has translated Fatwah-e-Almagiri and his work is popularly known as Baillie's Digest of Muhammadan law. In III, 1957, at page 490 of his book the learned author translates the Fatwahe as under:- "The Tulub-Moowathubut, or immediate demand, is first necessary, then of the Tulub-Ishhad, demand with invocation, if, at the time of making the former, there was no opportunity of invoking witnesses, as, for instance, when the pre-emptor, at time of hearing of the sale was absent from the seller, the purchaser and the premises. But if he heard it in the presence of any of these, and had called on witnesses to attest the immediate demand, it would suffice for both demands, and there would be no necessity for the other.
17. ' Another well-known work on Muhammadan Law is Fatwahe Kazi Khan (592 Hijra). This has been translated by Alhaj Muhammadullah Jung and published as the Muslim law of Pre-emption by Alhaj Muhammadullah Jung. Sections 31 and 32 which are relevant are reproduced below:-
31. The pre-emptor after receiving the information of sale, and having made Talab-i-Muwasibat is required to make Talab-i-Ishhad, it is called Talab-i-Ishhad, not because evidence is necessary but to enable the pre-emptor to establish his claim in Court.
32. If the pre-emptor was present at the time of sale, and he demands pre-emption in the presence of the 'vendor and the vendee, then these circumstances suffice to establish Talab-i- Ishhad; but if the pre-emptor was not present at the place of sale, then he should make Talab-i- Ishhad, before the vendor, or at the premises and this problem has various aspects."
18. ' Some judicial opinion relevant to the subject may also be mentioned. Two cases dealing with this subject are (1) PLD 1978 Kar. 732 (Jalal v. Abdul Majid and 2 others) and AIR 1952 All.
167. In the former case, Channa, J. examining this position in the case observed as follows :- "The contention of Mr. N.A.Farooqi was that though ordinarily Talab-e-Mawasibat and Talab-e- Ishhad are to be performed separately, they can be performed simultaneously. This proposition of law is no doubt correct and is supported by the decisions in Nundo Parsed Thakur v. Gopal Thakur I L R 10 Cal. 1008, and Abdul Majid v. Qamardin AIR 1945 All.
375. The latter decision follows a number of earlier decisions on the point by the Allahabad High Court."
19. ' In AIR 1952 All. 67 on coming to know of the sale the pre-emptor, protested to the vendor against her having sold her share in the house to the vendee-defendant, as the plaintiff herself was prepared to purchase the same. The suit for pre-emption was filed but was dismissed on the sole ground that the plaintiff had not made the demands as required by Muhammadan law. The plaintiff appealed and the decree was reversed. Second appeal was filed against the appellate decree which was heard by Mushtaque Ahmed, J., relevant part of the judgment is contained in para. 9 which is as follows:- " As I have already mentioned, it was held by a Bench of this Court. in 37 All. 522, referred to above, that, if the plaintiff had invoked the witnesses at the first demand in the presence of the vendor or the vendee or on the premises, the second demand was not necessary at all. Invocation of witnesses not being necessary, as held in 52 All. 1005, just cited by me, the mere presence of the plaintiff's witnesses, Muhammad Hussain and Asghar Ali, at the first demand which was made in the presence of the vendor, in fact to the vendor herself, and on the premises sold, satisfied all the requirements of a valid second demand and the present case would be clearly covered by that ruling ' In this view of the matter it cannot be said that the plaintiff's case suffers from any disability on account of Talab-e-Ishhad not having been made. Although the assertion of the plaintiff and his witnesses is that it was made. The finding of the trial Court on this point is as follows:- "The evidence of the plaintiff and his two witnesses reproduced above clearly shows that they have given two different versions. In their examination-in-chief they have all deposed to about the making of second demand but in their cross-examination they have not mentioned that second demand was made. The plaintiff and his witnesses did not withstand the test of cross- examination."
20. ' The analysis of the first appellate Court on this part of the case is even less persuasive. The learned Judge has merely said as follows: - "The evidence adduced on behalf of the appellant to prove the factum of demands as required under the law is not in accordance with law because the appellant himself has admitted that it was his right to purchase the suit land and why he (respondent) had purchased it. He further admitted that he had said nothing. The evidence of the appellant and their witnesses do not prove the legal demands as required under the law. Thus the finding arrived by the trial Court needs no interference except that the demands were not proper."
21. ' These findings of the two Courts are clearly inconsistent with the law as quoted above.
22. ' In the end half-hearted attempt was made by the learned counsel appearing for the respondent that the valuation of the suit being merely Rs.4,000 no second appeal can lie. The counsel, however, conceded that both the judgments were on questions of law and a revision was competent. I would convert this second appeal into a revision. The-result is that this revision is allowed with costs. Judgments and decrees of the two Courts below on issue No. 4 are set aside and reversed.E The appellant/plaintiff is entitled to enforce his right of pre-emption in respect of the land in suit.
23. The suit decreed as prayed.