The relevant facts giving rise to the present petition are that the respondent purchased 2 Kanals of land situated in Mauza Tahirpur, Tehsil and District Multan, from one Habib. The sale was effected through registered sale-deed dated 22-10-1984 for a consideration of Rs.20,000. The petitioner filed a suit for possession invoking the superior right of pre-emption on the basis of relationship and as co-sharer in the Khata. It was pleaded that the vendor Habib was nephew of the petitioner-plaintiff.
The respondent contested the suit The learned trial Court, according to the pleadings of the parties, framed following issues:- (1)Whether the defendant has made improvements upon the suit land, if so, when and with what costs ?
(2)Whether the plaintiff is estopped to bring this suit? OPD.
(3)Whether the valuation of the suit is incorrect for the purposes of court-fee and jurisdiction? OPD.
(4)Whether Rs.20,000 were fixed in good faith and actually paid by the vendee to the vendor? OPD.
(5)If issue No.4 is not proved, what was the market value of the suit land at the time of sale? OP. Parties. Rid (5-A)Whether report of local commissioner is liable to be set aside on grounds alleged in objection petition? OP. Parties.
(6) Whether the plaintiff has superior right of pre-emption qua the defendant? OPP. .4,i (6-.A) Whether the defendant is entitled to get the incidental charges if any? OPD.
2.The parties led their respective evidence. The trial Court after hearing the arguments proceeded to decree the suit vide judgment and decree dated 31-1-1988. The respondent assailed the order through an appeal before the District Judge, Multan, who transferred the same to the file of Additional District Judge, who proceeded to accept this appeal and reverse the judgment and decree of the trial Court. The result was that the suit of the petitioner was dismissed. This necessitated the present revision petition.
3. I have heard the learned counsel for the petitioner, who has argued that lower appellate Court wrongly relied on the judgments in cases of Sardar Ali and Bashir Ahmad to non-suit him. The same were not applicable because the suit was instituted on 11-11-1984 and the same was to be decided in accordance with law as it stood on the date of institution of the suit
4. I have given my anxious consideration to the arguments of the learned counsel for the petitioner.
The Hon'ble Supreme Court has clearly held in the cases of Sardar Ali v. Muhammad Ali PLD 1988 SC 287, Muhammad Shoib v. Member (Rev.) PLD 1988 SC 355 and Aiwaz Khan and another v. Allah Bakhsh PLD 1988 SC 730, that A no decree can be passed in pending pre-emption suit after 31-7- 1986 on any basis. Therefore, this argument of the learned counsel is~ clearly misconceived.
5.The petitioner has sought to pre-empt the sale on two counts The right of pre-emption on account of relationship was not available after 31-7-1986, while the suit on the basis of co-sharer could not hove -been decreed in the absence of 'TALABS'. The words appearing in para 4 of the plaint do not fulfil the requirements of 'TALABS' in Islam. The- reference in this behalf can be made to the case of Ghulam Qadir v. Nawab Din PLD 1988 SC 701. The relevant portion of this judgment reads as under:- " .....It is reported as in Shoib and others v . Member Board of Revenue and others PLD 1988 SC 355. It was clearly held that no decree can be passed now after the said date in favour of the pre-emptor on any ground ....Co-ownership, contiguity etc. " ..---. When the Court observed that no Talabs were made, it was also meant to convey that in the context of the then, existing pre-emption laws, the Talabs were not only unnecessary and thus were not made, but also, that they could not have been made due to the peculiarities and strictness of the relevant law in this behlaf. Said order of the Supreme Court is: Sher Muhammad v.
Allah Ditta PLD 1988 SC 412. The following observations therein fully demonstrate how we felt about the frivolous claims regarding Islamic Talabs:- "It is admitted that so far no decree has been passed in their favour. It is not claimed that the requirement o 'Talabs' as in Islam was fulfill in these cases. In C.P.S.L.A. No.747 o 1983, learned counsel or the petitioners had not even heard o the expression 'Talabs' That bet n so, no decree can now be passed in their favour in viewof the judgment of the court in Sardar Aliv. Muhammad Ali ( C.ANo.208 of 1980 decided on 2-5-1988 PLD 1988 SC 287 these petitions are accordingly dismissed.------
4. In the second place it was argued that the petitioner was entitled to trial of a suit in accordance with law as it stood at the time of the institution of the suit. This point has also been dealt with by their Lordships of the Supreme Court in Sardar Ali's case. The relevant portion reads as under:- "16. In the light of the foregoing analysis and interpretation of the provisions of the Constitution itself, it is clear the pending cases in the pre-emption matters were to continue to their logical ends without a vacuum and the decrees passed it the meanwhile before 31-7-1986 would have effect accordingly. But in cases where only suits were filed or proceedings were pending without culmination into decrees in favour of the plaintiff before that date, no fresh decree could be passed subsequently; because those laws ceased to have effect on that date rendering such subsequent fresh decrees without contemporaneous legal support. The other relevant portion of the judgment is as under:- 5...Some of the questions posed regarding the applicability of previous laws of pre-emption are as follows: QUESTIONS: a (1)Whether a pre-emption suit not decided by the trial Court before 31st July, 1986, could be decreed after the said date ...."
5.The reply to this question was in negative. The relevant portion of the judgment reads as under:- "Para 63...We have also held as a corollary to the foregoing finding that mere pendency of a proceeding would not clothe the party concerned with any right The other relevant portion from the judgment of Mr. Justice Dr. Nasim Hassan Shah, is as under:- I also agree with the finding of my learned brother that where no decreed has been passed by the trial Court or any higher forum before 31-7-1986, no such decree can be passed thereafter by any Courtforum onhe ground that the matter was instituted and pending in the Court before31-7- 1986.11. Since the provisions of Pre-emption Act ceased to be operative or. 31-7-1986, therefore. No claim can be decreed on the such law.
6. The second aspect of the argument was that according to the verse No.38, Soorat Infaal (A1 Quran), the misdeeds of the past were to be ignored. In this behalf learned counsel has also referred to an article written by Mr- Justice Dr. Nasim Hassan Shah printed as PLD 1988 Journal 1.
The relevant portion reads as under;- "There are a large number of other legal principles which are decipherable from the Holy Quran, for instance:- "No offence can be created retrospectively."
7.The reference to verse from the Holy Book is irrelevant. I am, fortified in my view by the portion reproduced from the article by Mr. Justice Dr. Nasim Hassan Shah. It has no relevancy to the trial D of civil suits and adjudication of claims of civil nature. This deals with the offences. On the other hand, when interest was declared absolutely forbidden (HARAM) then Holy Prophet (Peace he upon him) first of all relinquished claim of his family.
8. The learned counsel has also referred to case of Imam Din v. Muhammad Raees Islam and another AIR 1930 (52) Allahbad 1005 to argue that the Talab-i-Istishhad (confirmatory demand) is not absolutely necessary. This case deals with second and third demand and the mode of making the demands as is clear from the following portion of the judgment:- "1n the. Chapter on pre-emption in Durrul-Mukhtar, volume IV. When illustrating how the second demand is to be made. The words 'Be ye witnesses thereof' are no doubt quoted, but it is nowhere expressly stated that these words are indispens--able. On the other hand, when dealing with the third demand which is made before the Qazi, that is the suit itself, it is clearly mentioned that the Qazi should inquire from the pre--emptor as to his having made the first demand and then to inquire 'with regard to the second demand, how it was made, in whose presence 'Ishhad' was made and whether he in whose presence it was made was nearer than the other.' At that place it is not expressly mentioned that the Qazi should inquire whether he had definitely asked the witnesses to bear testimony. It is also noteworthy that in the same chapter it is stated at two places that the second demand can be made 'by means of writing a letter or sending a messenger.' It is obvious that in the case of a letter there may not be an invocation of the witnesses in the sense of asking them expressly to bear witness. Similarly, in Fatawa-i-Alamgiri, volume IV, chapter 3, which deals with pre-emption, although these words are mentioned when illustrating how the second demand is to be made, they are not repeated in the passage mentioning how at the time of the third demand the Qazi is to make inquiries from the pre--emptor; there all that he is required to ask is 'how he made the second demand, whom did he appoint witnesses and whether he in whose presence he appointed witnesses was nt=arer than the other.' It is further expressly mentioned that the taking of witnesses is necessary for the purpose of strengthening the claim. In the Hedayah, volume IV, on pre-emption, which in Hamilton's English translation is shown as Book 38, Chapter 2, the passages are translated as follows: 'It is, therefore, necessary afterwards to make the Talab-i- lstishhad or Taqreer, which is done by the Shafi taking some person to witness either against the seller, if the ground sold be still in his possession, or against the purchaser, or upon the spot regarding which the dispute has arisen, and the Shafi thus taking some personsto witness his right of Shafa which is fully established and affirmed.' It is there pointedout that the second demand is requisite 'because evidence is wanted in order to establish proof before the Magistrate.' The illustration is in the following words: 'Such a person has bought such a house, of which I am the Shafee; I have already claimed my privilege to Shata, and now again claim it; he, therefore, witness thereof'. Neither in the translation nor in the original is there any passage which clearly states that the omission to use the words 'Be, therefore, witness thereof' would be fatal. Billie in his Digest of Muhammadan Law, volume I, book 7, chapter 2, paged 489, has noted that the invocation of witnesses is not required to give validity to the second demand, but only in order that the pre-emptor may be provided with proof in case the purchaser should deny the demand. He has also noted, on the strength of Durrul-Muhtar, that the second demand may .Be made by a letter or messenger. In illustrating how the second demand is to be made, 'Be ye witness to this' are noted. But when dealing with the third demand before the Qazi, at page 492, he also states that the Qazi ought to inquire in the following words: 'When this has been explained, he is to ask him about the Talab-i-Taqreer, or confirmatory demand, how it was and before whom he made the demand and whether he was nearer or more remote than another in the manner already mentioned Baillie has not stated that the omission of the words 'Be ye witness to this' would, be fatal. It is true that in Imam Din's case, Allahbad High Court has referred to earlier case law as to the first demand (Talab) but neither the precedent case nor the cases referred to are applicable because in this case there was no demand at all, therefore, the reference is irrelevant. The same remarks apply to the portion of Fatawa-i-Alamgiri relied by the learned counsel for the petitioner.
9.The last argument was that it was the duty of the Civil Judge (Qazi) to administer oath to the vendee in respect of Talab and it was none of the obligation of the petitioner- pre-emptor to prove the same. The argument is again out of context and irrelevant because in Fatawa-i-Alamgiri the mode of proof of Talab has been prescribed. E It has nowhere been prescribed that the pre-emptor is absolved even from alleging Talabs. The argument is otherwise ill-founded because it is for the plaintiff -pre-emptor first to plead not only in accordance with the principles of pleading but also according to Fatawa-i-Alamgiri relied by the learned counsel and in the absence of such plea question of denial does not arise. In the case of Ghulam Qadir, their Lordships of the Supreme Court upheld the order of the High Court rejecting the application for amendment of the plaint, so as to plead 'Talabs'.
10. The result is that I do not find any force in this revision and the same is dismissed in limine.