' This is second appeal under section 100, C.P.C. Against the judgment dated 19-12-1979 passed by the learned First Additional District Judge, Larkana reversing the judgment dated 10-12-1977 of the Civil Judge, Kamber.
2. Mr. Mehar Khan Rajput, learned counsel for the respondents took a preliminary objection that as the value of the suit is less than Rs,50,000, second appeal is not maintainable. The appellant could, however, file a revision only. The submission of the counsel for the respondent seems to be correct inasmuch as section 102, C.P. C. As substituted by Ordinance X of 1980, provides that no second appeal shall lie when the amount or value of the subject-matter of the original suit does not exceed fifty thousand rupees. However, there is no impediment in treating the above appeal as civil revision which I accordingly do.
3. Mr. Rehmat Ally Rajput, learned counsel for the appellant (hereinafter called as counsel for the applicant) submits that the matter pertains to pre-emption of agricultural land being survey number 25/2 situate at deh Aheer; Taluka Kamber, District Larkana. The said agricultural land was owned by respondents Nos.2 and 3 who sold it away to respondent No,1 under a sale deed dated 22-12-1972, registered on 23-12-1972. The applicant filed a pre-emption Suit being No,41 of 1973 on 2-5-1973 in the Court of Civil Judge, Kamber which was decreed by his judgment dated 10-12-1977.
Respondent No,1 filed an appeal in the District Court which was heard and decided by First Additional District Judge, Larkana who set aside the judgment of the learned Civil Judge and allowed the appeal by his judgment dated 19-12-1979.
4. Learned counsel for the parties are agreeable that the learned Additional District Judge has set aside the judgment of the learned Civil Judge by upsetting the finding on issues Nos.2 and 4. It, therefore, seems necessary to reproduce the said issues Nos.2 and 4 "(2) Whether S.No,25/2 deh Aheer is immediately adjoining S.No,25/1 of deh Aheer?
(4) Whether the plaintiff made the demands, of pre-emption?
5. On reading the impugned judgment passed by the appellate Court it appears that the judgment of. The lower Court has been set aside on the grounds, namely (1) that there is a 'Bana' (a line) between survey numbers 25/1 and 25/2; (2) the applicant has failed to make the Talabs according to Islamic law inasmuch as had failed to substantiate Talab-e-Mowasibat by not producing witnesses of the first Talab and (3) in any case the Talabs were made before the sale-deed registered on 23-12-1972.
6. As regards the question of 'Bana' admittedly there was originally one survey number being survey number 25 which was later on sub-divided into survey numbers 25/1 and 25/2. Survey number 25/1 is owned and possessed by the applicant who claimed pre-emption right in the other survey number 25/2, as adjoining to his survey number on the basis of Shafi-i-Jar. It is common ground of the counsel for the parties that there is a Katcha path of about 4 or 5 feet in width which is in common use of the parties as well as other passers-by. The question, therefore, would be whether the land in question would still be deemed to be adjoining.
7. Learned counsel for the applicant submits that these survey numbers are adjoining to each other and mere Katcha path will nct deprive the applicant from claiming right of pre-emption.
Reliance is placed on Aziz Ahmad v. Nazir Ahmad and others (AIR 1927 Allahabad 504). Relevant portion reads as under:- "The defendant, however, contends that inasmuch as the Katcha public road passes through the plot, the portion which lies away from the house should not be allowed to be pre-empted. It does not, however, appear that the land covered by this road belongs to the public. The land is in reality a part of this plot though the public have a right to pass through it. Under these circumstances, the finding of the Court below, must be accepted and the plaintiff is entitled to pre-empt the whole of that plot."
8. The above case seems to be distinguishable inasmuch as it is not clear from the evidence in the present case that the land used as Katcha path belongs to the public or not. IT it does not belong to public, the question may arise whether it forms part of survey number 25/1 or 25/2 or both? For that, it seems necessary in the interest of justice, for the purpose of enabling the Court to pronounce judgment, to record additional evidence of the Tapedar by calling upon him to produce the relevant record of the original survey number 25, showing its total area, and the respective, areas of the two sub-divided survey numbers, in order to ascertain if any part of the land is left out of the total area for Katcha path. If it is found that the areas of the two sub-divided survey numbers .Do not make up the total area of survey number 25 and that the area falling short seems to be comprising of the Katcha path separating the two sub-divided survey numbers with a demarcated Katcha path, the land in question, with such a position will not be said to be adjoining; with the result that the right of the applicant/plaintiff to pre-empt the land in question as Shafi Jar ( cannot be said to have been established. In that case, the impugned judgment of the learned District Judge will hold good and the appeal before him shall stand accepted. If the additional evidence, on the other hand, proves that the area used as Katcha path forms part of both the survey numbers, or of either survey number 25/1 or 25/2, the finding of the learned District Judge on issue No,2 will stand reversed and the appeal will be dismissed by the learned Addititional District Judge.
With the result that the judgment of the trial Court in that case, will stand restored as, in such a position it cannot be said that the Katcha path is quite separate and distinct from the land comprising the survey numbers 25/1 and/or 25/2 as a duly demarcated and regular path.
9. As regards the question of non-production of witnesses of the Talab-e-Mowasibat, learned counsel for the applicant has referred to Mohammadan Law' by Amir Ali Vol.!, 1976 edition, page 724 wherein it has been stated-"It is not necessary, however, that it (Talab-iMowasibat) should be made in the presence of witnesses". In the said text book reference has been made to the case of Jadu Sing. v. Raj i(umar 1870) 4 BLR, A .C.171. Saksena in his book on "Muslim Law As Administered in India and Pakistan" third edition, at page 689 also writes:-- "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."
10. Learned counsel for the applicant also relied on Budho v. Karim Bux (1985 CLC 1037) by a learned Single Judge of this Court wherein the, learned Judge too relied on the observations of Saksena quoted above.
11. On the other hand learned counsel for respondent No,1 relied on Sumandar Khan v. Ali Zaman (PLD 1984 Pesh.12) on the question of first demand.
' A learned Single Judge observed as under:- "The law requires that on gaining knowledge of the sale Talab-i-Mowasibat should be made with promptitude and as soon as possible because even a slight delay in making the 'Talab' would defeat the right of pre-emption. In the present case there is no convincing evidence as to how and when the plaintiffs got knowledge of the sale and whether Talab-iMowasibat was declared by them without loss of any time."
12. I am afraid the cited case does not answer the question involved in the present case as it was a case of no evidence whether the Talab-i-Mowasibat was made by the plaintiffs themselves without loss of time or not.
13. Learned counsel for respondent No,1 further submitted that the applicant while making the second demand i.e, Talab-i-Ishhad did not refer to the first demand and therefore, it was fatal to his right of pre-emption. Reliance is placed by the counsel on Loung v. Dur Muhammad (PLD 1987 Kar. 515), wherein a learned Single Judge of this Court (Mr. Ahmed Ali U.Qureshi) referring to several text,books on Muslim Law and the decisions of several Courts including our own High Court has observed as under:- "All these discussions lead to the conclusion that so far the established principle and practice approved by the superior Courts by way of decisions by Single Benches, Division Benches as well as by Full Bench in this sub-continent is that it is necessary for a person who claims right of pre- emption to make two Talabs in accordance with the mode laid down in the Muhammadan Law by Mulla as reproduced above. No doubt, there is no mention of this right or mode of enforcing the right in Holy Quran but even according to the Hadith of the Holy Prophet quoted above the claimant of the right of preemption has to assert his right without delay. There is much force in the observation of the learned Single Judge that in certain cases when the purchaser is present at the time the first demand is made in presence of the witnesses, the second demand would become redundant, superfluous n d unnecessary repetition. But each case is to be decided on its own merits. In the instant case, the purchaser viz respondent No,1 was admittedly not present at the time of first demand, and therefore, it was imperative for the applicant to have referred to his first demand while making the second demand so as to show that he had made Talab without any delay."
14. Counsel for the applicant, however, referred to the observations in Hussain Bux v. Mir Muhammad (PLD 1985 Kar. 161) by another learned Single Judge of this Court (Ibadatyar Khan, J) who is of the opinion that omission on the part of a pre-emptor to mention Talab-i-Mowasibat at the time of making Talab-i-Ishhad is not fatal to his right of pre-emption which he had acquired under Muhammadan Law and which is a substantive right. The learned Judge seems to have departed from the recognized view of the various High Courts of the sub-Continent, namely, High Courts of Calcutta, Allahabad, Dacca and Sind and thus also deviated from the established rule of stare decisis. Reference may be made to Rujjub Ali Chopedar v. Chundi Churn Bhadra and others (F.B.)(ILR 17 Calcutta 543), Mubarak Hussain v. Kaniz Bano and others (D.B) (ILR 27 A11.160), Sadiq All v. Abdul Baqi Khan and another (D.B.) (ILR 45 All. 290) Abbasi Begum v. Afzal Hussain D.B.(1898) 20 A11.457) Nazir Ahmed and others v. Muhammad Sheir Ali and another (PLR 5 Dacca 757), Jad v.
Abdul Majid (PLD 1978 Kar.732) by Z.A. Channa' , J. And 1st Appeal No,1 of 1980 of this Court by my learned brother Ajmal Mian, J (now Chief Justice). In all these cases it has been consistently held that non-reference in the second demand to the earlier demand was fatal to the claim of pre- emption. These cases were also noticed by the learned Single Judge. He, while referring to the above cases observed that "it is necessary to investigate whether the view taken in those judgments is consistent with the original text relating to this doctrine" (P.167-68). The learned Judge for his dissenting view sems to confine himself to the two leading works, namely, Hidayah and Fatawa-e-Qazi Khan and as the entire case law, according to the learned Judge, has converged on Calcutta case which in turn is based on the text from Hidayah, the learned Judge dealt with Hidayah from English translation by Hamilton and Urdu translation by Mahmood, J. (of Allahabad High Court) and observed as under:- "I have already produced the Urdu translation of the Hidayah and have endeavoured to show that from a plain reading of the phrase in Hidayah it cannot be spelt out that omission to mention the Talab-e-Mowasibat or failure to quote the survey numbers or failure to expressly mention the exact location of the property or failure to address the witnesses in a particular form would render the demand ineffective. Indeed, there is weighty opinion to suggest that even the presence of witnesses is not necessary."
' Quoting an extract from Fatawa-e-Qazi Khan, the learned Judge observed further that:- "It will be seen that the learned author like Hidayah has suggested how the Talab-e-Ishhad should be made. It is significant that in this text the author does not mention that the Talab-e-Ishhad should specifically mention the Talab-eMowasibat. On the other hand emphasis is laid on mentioning full details of the property and the category of the right which is being invoked by the pre-emptor. In every day practice suits are decreed even if the locational details are not mentioned and the nature of the right of Shafi at the time of Talab-i-Ishhad is not stated:"
15. With due respect to the learned Judge, I am unable to subscribe to the view expressed by him in the above judgment (Hussain Bux v. Mir Muhammad (PLD 1985 Kar.161). Propably, the whole difficulty has arisen due to lack of easy access to the original Arabic sources of Fiqh literature; Fortunately, I could lay my hands on the Arabic text of Hidayah whose English and Urdu translations have been referred to by the learned Judge. Regarding Talab-al-Ishhad it is stated in Al-Hidayah (Arabic), Qur'an Mahal, Karachi Kitab-al-Shuf'ah pages 393-94 as under:--
16. The above Arabic text has been translated in Aiyn-al-Hidayah VoLIV,-Nawalkishore, Lucknow, P.20 as under:-- {{ARABIC TEXT}} The above extract from the Hidayah is sufficient to establish that it is necessary for the pre-emptor to make reference to his first demand, Talab-e-Mowasibat, while making the second Talab, Talab- al-Ishhad. The word ("Kunto" is in past tense, which refers to the Talab already made, known as Talab-al-Mowasibat .
17. The observation of the learned Single Judge that it is not mentioned in Fatawa-e-Qazi Khan cannot necessarily imply that there is no such rule in the Islamic law. It may, however, be added that the Fataw-a-Qazi Khan is a collection of the verdicts given by Qadi Khan which has not been considered as text book or a commentary of a text book.
18. I may also refer to the Arabic Text of Mujallatul Ahkam al Adliyah (Codified in 1876). Its relevant section 1030 is reproduced as under:- {{ARABIC TEXT}} ' The above section had been translated into English by C.R.Tyser as under:- "1030. After the claim Muwasebe (Art.1029), the person having the right must make a claim formally and before witnesses, (Talab Taqrir veish-had).
' Thus, it is necessary for him to say, in the presence of two persons, being near the thing sold 'I believe such a one has bought this immovable property.' or in the presence of the purchaser, 'I hear you have bought such an immovable property' or, if it be still in the hands of the seller, '1 hear you have sold such a property to such a one', therefore, I am entitled to take it at the price at which it was sold or 'I claim to take it at the price at which it was sold'. 'Now also .I claim it. Be witnesses'.
' And if the person, who has the right of pre-emption, is in a distant place, and cannot in person in this way make his demand formally and before witnesses, he appoints someone his agent, and if he cannot find an agent, he sends a letter." (The Mejelle, Lahore Page 163)
19. Reference may also be made to the book translated by Justice Syed Muhammad (revered son of late Sir Syed Ahmed, Founder of Muslim University, Aligarh), of Allahabad High Court who is one of the illustrious Judges that Muslim India has ever produced. I had seen this book with a friend of mine Mr. Muhammad Shafiq, Advocate of Karachi in 1964 when I started my research work in Islamic Law. With his kind courtesy, I was able to obtain this book from him. (Now a photostat copy of this rare book has been obtained and preserved by me in the Judges' Library of this High Court at Sukkur Bench). This book contains the Arabic texts with its Urdu translations of Kitab-al-Shufah from Majma' al-Bahraiyn ' Fatawa Qadi Khan and Aiyni Sharh Kanz (i.e, commentary of Kanz al-Daqa'q by Allama Aiyni), Delhi, 1897 A.D. Relevant paragraphs wherefrom are reproduced as under:-- {{ARABIC TEXT}}
20. Furthermore, with due respect and without the least intention of minimising the labour put in by the learned Single Judge and with the object of stating the correct rule of Islamic law on the point, I may refer to a number of other authentic books on Fiqh as follows::
21. In Fatawa al-Alamgiri, Vol.IV Maktaba Rahimyah, Deoband at page (?) it is stated that: {{ARABIC TEXT}} ' It has been translated by Maulana Syed Amir Ali (not, Mr. Justice) Principal Madresa Aliya, Calcutta, (author of Tafsir Muwahib-al-Rahman Nawalkishore, Lucknow) Vol. IV, page 22 as under:- - {{ARABIC TEXT}}
22. In Durrul Mukhtar by Allama Allauddin al Maskafi (d.930 A. H) with its Urdu translation by Maulvi Khurram Ali, completed by Maulana Muhammad A hsan Nanotwi, Nawalkishore, Luck now, Vol.4 Kit abat Shafiah pp.127-128, it is written as under:- {{ARABIC TEXT}} {{ARABIC TEXT}} ' I think, I have sufficiently supported the rule by quoting from the above extracts and I need not elaborate it any more, yet I would like to simply refer to the names of other works of authority, so that the searching mind may consult them, if needed. They are: {{ARABIC TEXT}}
23. And in the last, but not the least, to conclude the discussion, it may be added that the full name of the second Talab is, in fact, Talab-al-Taqrir wal Ishhad ({{ARABIC TEXT}}). Its literal meaning itself denotes that it is to reaffirm, to confirm, to establish that which has already come into existence i.e, the Talab-al-Muwasibat by means of bringing evidence on it, as some times there is none present when the pre-emptor makes the first Talab. Reference may also be made to my book. {{ARABIC TEXT}}
24. The philosophy behind this doctrine is that if there are no witnesses present, at the time of making the first Talab, whom the pre-emptor may produce in Court, to establish the first Talab, he should make the first Talab from his tongue to himself, so that if the buyer denies the making of the first Talab by the pre-emptor, the pre-emptor's right should not lapse and that he may not be telling a lie if the Qazi asks him to take oath that he made the first Talab to himself, which he thereafter mentioned to the witnesses. He may, take the oath, and be not committing a sin in the eye of Allah ( {{ARABIC TEXT}} ). That is why, it has been made necessary that while the pre-emptor making the two persons as witnesses so as to communicate his Talab to the buyer or the seller, or by going to the house or land, if no buyer or sellor is available, he should make the second Talab before the witnesses by making a reference to the first Talab, because no witnesses were then present or available and that is why it is not necessary that witnesses should be present while making the first Talab. For example, the pre-emptor receives a letter from somebody conveying information to him that such and such property has been sold of which he is either a co-owner or a partner to the appurtenances or a neighbour and there being no witnesses present, nevertheless he is required to make the first Talab in the same Majlis (sitting) immediately, on reaching the said letter or information about the sale to him. Otherwise, his right of pre-emption will lapse according to the tradition of the Holy Prophet ( i.e, Shufa'h belongs to a person who immediately jumps on it (on receiving the first information). That is why, it has been observed by the various Jurists that if the pre-emptor on receiving information just calls out, "Shuf'a-Shuf'a" or "I claim the property in Shufua" the requirement of making the first Talab will be met. In fact, some of the jurists have interpreted Talab-e-Mowasibat as the making vocally of a Talab to himself {{ARABIC TEXT}} .
Reference may be made to Kanz al-Daqaiq (() by Mahmud Nasafi (d.710 A.H.), Matba Mujtabai, Delhi, Kitab-al-Shuf'a page 400: Its commentary by Allama Aiyni, para 20 op.Cit. Is as under:- {{ARABIC TEXT}} ' As the Muslim Jurists are unanimous that Shuf'ah is a feeble right, the conditions as to Talabs should be enforced strictly.
26. In fine, the cases decided by the High Courts of Calcutta, Allahabad, Dacca and this Court referred to by the learned Single Judge in Hussain Bux's case (PLD 1985 Kar.161) and the subsequent case (PLD 1987 Kar. 515) decided by another Member of Sukkur Bench (Ahmed All U.
Qureshi, J.) referred to by me in this judgment are conformable to and consistent with the original texts as quoted above and stated in the several authentic works of Fiqh of great value written during last about one thousand years, and have been consistently followed by great Muslim Jurists till today, including the several High Courts of Indo-Pak sub-continent during about past one hundred years. I, therefore, beg to differ and dissent with the view taken by learned Single Judge in Hussain Bux's case and hold that the non-mentioning of the first Talab in the second Talab by the pre-emptor is fatal to, his claim of pre-emption, in case the two D Talabs are made on different times. It may, however, be added that a Civil Petition No, K-541 of 1984 was presented to the Supreme Court of Pakistan against the judgment dated 5-9-1984 passed in First Civil Appeal No,1 of 1982 in the said Hussain Bux's case (reported in PLD 1985 Kar. 161) by the petitioner Mir Muhammad and there it was submitted that the High Court has erred in holding that the "omission on the part of Shuf'a to mention Talab-e-Mowasibat at the time of making Talab-e-Ishhad cannot be fatal to the right of pre-emption which he had acquired under the Muhammadan Law". However, the Hon'ble Supreme Court having found that the learned Judge in the High Court had also held as a finding of fact that reference to the first Talab was indeed made by the plaintiff while making the second . Talab in the presence of two witness's i.e, Muhammad Khan and Moula Bux. Since the High Court recorded a finding of fact on correct and proper appreciation of evidence in the case, it is un-necessary to deal with the point of law raised by the learned counsel", and the petition was thus dismissed.
27. However, the evidence of the applicant and his two witnesses, namely, Yar Muhammad an Abdul Nabi Exhs. 73 and 74 shows that while making the second mand, Talab-e-Ishhad, reference to the first demand, Talab-e-Mowasibat was made in the instant case. Submission of the respondents' counsel that the learned Additional District Judge has misread the evidence is not sound.
28. Learned counsel for the respondent No,1 further submitted that the applicant delayed in making the second Talab, as also held by, the learned Appellate Court. The observation of the learned appellate Court and the submission of the counsel both do not depict the correct legal position in Islamic law of the Shuflah relating to Talabs. The first Talab must be immediate and in the same sitting () in which the information about the sale of the immovable property has reached him, but the second Talab may be made after some time which is considered necessary for having two witnesses for making the Talab al-Ishhad. As some times the witnesses may not be readily available what would be the necessary time is a question which may be decided in the facts and circumstances of every case. In the present case, the information about sale reached the applicant before sun-set when he made the first Talab and the Talab-al-Ishhad was made after sun set. Thus, no delay in making the second Talab can be attributed to the applicant. Reference may also be made to paragraph 62 of Kitab-al-Shufa'ah by Qadi Khan, as translated by Justice Mahmud, op. Cit which reads as under:- {{ARABIC TEXT}}
29. Learned counsel for the respondent No,1 lastly submitted that the first Talab was made before the sale and, therefore, it is not a Talab as required by law. According to him the sale-deed was registered on 23-12-1972 and, therefore, the two Talabs, if at all made on 22-12-1972 were before the sale. Reliance is placed on Mahajal Haq v. Shafiullah (PLD 1964 Dacca 640). On the other hand, learned counsel for the applicant relies on Muhammad Saeed v. Noor Bai (1983 CLC 1883).
30. In the Dacca case (PLD 1964 Dacca 640) a learned Single Judge referring to Hidaya, second Edition, page 550 (translation by Hamilton) that the privilege of Shaffa is established after the sale, observed that "The Talab-e-Mowasibat is of no effect if it be made before the completion of sale. In the Karachi case (1983 CLC 1883) my learned brother Ajmal Mian, J. (now, Chief Justice of this Court) referring to Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411) observed that: "However, one cannot overlook the fact that the right of pre-emption is claimed on the basis of the Muslim Law and not under any general law and, therefore, the ratio of the above Supreme Court case of 1967 is applicable, namely, whether the sale was complete in terms of the law under which the right of pre-emption is claimed and what was the intention of the parties. In view of the above clear pronouncement made by the Hon'ble Supreme Court of Pakistan, it cannot be held that because of the above two provisions or above two enactments right of pre-emption can be claimed only in a case, in which a sale-deed is executed and registered in respect of immovable property valuing Rs,100 or more."
31. I have seen the original sale-deed produced by the applicant in the trial .Court. It is true that the sale-deed has been presented to and registered by the sub-Registrar on 23-12-1972 but it appears to have been written on 22-12-1972. It is further to be noticed that in paragraph 4 of the plaint it was asserted by the applicant that the respondents Nos.2 and 3 sold the land in question on 22-12-1972.
This assertion made in the plaint has been admitted by the respondent No,1 in para. 4 of his written statement.
32. From the above discussion, it appears that the learned Additional District Judge has committed illegality in giving his finding on issues Nos.2 and 4 and in passing the impugned judgment.
33. In the result, the second appeal, which is converted as civil revision, is accepted; the impugned judgment of the learned First Additional District Judge, Larkana is set aside and the case is remanded to the learned First Additional District Judge, Larkana for calling the tapedar of deh Aheer in evidence, as observed above, and after hearing further arguments on issue No,2 in the light of the additional evidence adduced before him to decide the appeal on the lines suggested in paragraph 8 above on issue No,2 only upto 31-5-1989. The parties are directed to appear before the First Additional District Judge, Larkana on 6-3-1989. R & P be sent back immediately.
34. These are the reasons for my short order of even date remanding the case to the First Additional District Judge, Larkana to give fresh decision on issue No,2 only. Revision accpeted.