' This suit, for pre-emption, has been filed by M/s. M.R. Sons against M/s. Junaid Associates (Pvt.)
Ltd.
2. The plaintiffs are the owners of two plots Nos. 158-N and 158-0, situated in Block No, 2, P.E.C.H.S., Karachi, each measuring 1,000 square yards, which have been amalgamated by the K.DA., and a multi-storeyed building has been constructed thereon by the plaintiffs known as "Malin Centre".
3. The case of the plaintiffs is that on 25th July, 1985, at about 11-00 a.m., they learnt that the adjoining Plot bearing No, 158-P, with construction thereon, had been purchased by the defendant from its previous owner, Mrs. Iqbal Jehan Begum wife of A. Ghani Saeed.
4. The plaintiffs being the owners of the adjoining property and participators in amenities and appendages thereof, then without losing any time, declared their intention to assert their right of pre-emption in the property and immediately thereafter their representative Saqib Rafi alongwith Nisar Ahmed and Muhammad Shoaib contacted Mr. S.M. Naqi, the Managing Director of the defendants, at the disputed property and in their presence declared that the plaintiffs had already asserted their right of pre-emption and offered to pay the entire sale consideration of Rs, 11,00,000 (Rupees Eleven Lacs) to the defendants, together with expenses incurred by them in respect of the transaction and requested them to transfer the property to the plaintiffs. The defendants, however, declined to accept the plaintiffs' offer.
5. The plaintiffs, then, by a telegram dated 28-7-1975, finally called upon the defendants to accept the offer of the plaintiffs within three days from the receipt of the telegram and the telegram was followed by a notice dated 29th July, 1985. However, in their reply dated 6-8-1985 the defendants denied the claim of the plaintiffs and refused to accept their offer, and hence the suit.
6. The aforesaid allegations have been denied by the defendants in their written statement. It has been denied by them that the plaintiffs had learnt about the transaction on 25-7-1985, as, according to the defendants, they had agreed to purchase the property from Mrs. Iqbal Jehan Begum on 30-5-1985 through a written agreement of sale and the entire consideration of Rs, 11,00,000 was paid to the vendor of the property and possession obtained by the defendants. The plaintiffs being present at the adjoining plot came to know about this transaction the same day.
The defendants also got a public notice in respect of the said agreement published in newspaper "Morning News" dated 9-6-1985, which was a popular daily newspaper published from Karachi and had a wide circulation. It was also denied by the defendants that the plaintiffs were owners of the adjoining property or were participators in the amenities and appendages and hence they could not claim any right of pre-emption in respect of the suit property. The plaintiffs did not declare their intention to assert their so-called right of preemption nor did their representative Saqib Rafi or any other person on their behalf contacted S.M. Naqi, the Managing Director of the defendants and assert their right of pre-emption as alleged. According to the defendants, the previous owner of the property Mrs. Iqbal Jehan Begum was not the owner of the suit property and she only enjoyed the leasehold rights therein, the owner being the Government of Pakistan and hence the property was not subject to any right of pre-emption under the Muhammadan Law, under which the right has been claimed by the plaintiffs. Furthermore, the property is situated on public thoroughfare, namely, Tariq Road in the city of Karachi and hence the property was not subject to any right of pre-emption. In any case, according to the defendants, no Talab-e-Mawabist or Talab-e-Ishhad under the Mohammadan Law were made by the plaintiffs. The suit, according to the defendants, was also bad for non-joinder of necessary party as the vendor of the property had not been impleaded as a party to the suit.
7. On the basis of the aforesaid pleadings of the parties the following consent issues were adopted by the Court:- "(1) Whether the plaintiff is participator in immunities and appendages of the property.
(2) Whether the plaintiff has right of pre-emption over the suit property.
(3) Whether the plaintiff made Talabs (Demands) in accordance with Muhammadan Law, as alleged in para 3 of the plaint.
(4) Whether the property in suit is not subject to right of pre-emption under the Muhammadan Law.
(5) Whether the seller of the suit property is a necessary party and consequently the suit is not maintainable without impleading her.
(6) What should the decree be."
8. 1 have heard Mr. M.G. Dastagir, learned counsel for the plaintiffs and Mr. Raja Haq Nawaz learned counsel for the defendants.
9. So far as issue No, 1 is concerned, there is no evidence to indicate that the plaintiffs in any manner are participators in amenities or appendages of the two properties. The evidence of the plaintiffs' own witness Saqib Rafi makes it clear that electricity and water connections to the plaintiffs' property come through a service lane adjoining the property and the same is the case with sewerage lines. There is no other evidence to support the plaintiffs' claim in the plaint that they arc participators in the amenities and appendages and hence issue No, 1 is decided in the negative.
10. Issue No, 2: ' So far as issue No, 2 is concerned, it is the most important issue in the case as it, in fact, relates to the maintainability of the present suit. Reference may also be made to issue No, 4 here, as both the issues Nos. 2 and 4 raise the same question, although they are differently worded. Turning now, to the facts of the case, admittedly the plaintiffs and the defendants possess only leasehold rights in their respective properties. Mr. Raja Haq Nawaz, learned counsel for the defendants has argued that the right of Shuffa cannot be claimed where the respective owners of the adjoining lands do not enjoy right of full ownership therein. Since in the present case, admittedly, the owners of the two adjoining lands only possess leasehold right's therein, the instant suit for pre-emption is not maintainable. Reliance has been placed by the learned counsel upon the case of Sikandar v.
Sultan Muhammad PLD 1974 SC 11. In this case, it was held by Hamoodur Rehman, C.f., that a pre- emptor who was not a full owner of the house but holder of merely Haquq-e-Bashindgane Dawami (rights of permanent residence) therein had no superior right of pre-emption. It was further held that "milk or ownership of Shafee (pre-emptor) in the house sought to be pre-empted was necessary.
11. Mr. M.G, Dastagir, learned counsel for the plaintiffs on the other hand, has argued that the case decided by the Supreme Court is distinguishable as the parties in the present case enjoy leasehold rights of a permanent character in the two adjoining properties. Reliance has been placed by Mr. M.G. Dastagir upon the case of Syed Sayecduddin Ahmed v. Haji Inus Mian PLD 1960 Dacca 416. In this case the defendant held ,cote rights in the land in question. A question arose before the Dacca High Court, whether the full ownership in the sense of proprietorship, is necessary in the land of vicinage and that sought to be pre empted for giving rise to the right of pre-emption under the Muhammadan Law. It was held that ,Tote right being a permanent, heritable and transferable right, the lessee of the land in question was the owner of the same and the right of preemption, on the sale did accrue.
12. Both the Hon'ble Supreme Court and the Dacca High Court have referred to the case of Sakina Bibi v. Aniiran and others 10 ILR All. 472, wherein Mahmood, J., had observed:- "The learned counsel argued that the passage in the Hedaya meant that actual physical possession of a share, that is to say, of the pre-emptive share, was a condition precedent to the exercise of the right of preemption. The translation as made by Mr. Hamilton is somewhat loose, but it is clear that what is intended to be conveyed by the author of the Hedaya was, that, in what I may call the pre-emptive tenement, the pre-' emptor should, have vested ownership and not a mere expectancy of inheritance or a reversionary right, or any other kind of contingent right, or any interest which falls short of full ownership. For instance, in the case of a usufructuary mortgagee who is in possession, the application of the passage would require holding that no right is possessed by such a mortgagee. I do not think that any other interpretation can be placed upon the passage, and I hold also that such is the case-law as shown by some of the reported cases.
13. The Dacca High Court, while referring to the above case, took the view that what in fact, Mahmood, J., was interpreting was not the word milk or ownership, but, nature of possession, physical or constructive, required for Shuffa. Consequently, the Court was of the view that observations of Mahmood, J., were made in a different context as the facts of the case decided by Mahmood, J., were distinguishable from those of the case before the Dacca High Court.
14. Raja Haq Nawaz has, however, invited my attention to some cases decided by the Patna and Bombay High Courts wherein it has been held that right of pre-emption is not available in respect of the property where the owner thereof enjoys only leasehold rights. The first case on the point is reported as Dhirakshan Singh v. Triloki Prashad Singh AIR 1923 Pat.
217. In this case it was held that right of pre-emption cannot be enforced in case of rnokurari land..
It was observed by Das, J.:-- "The law of pre-emption was founded on the supposed necessities of a Muhammadan family arising out of their minute sub-division and inter-division of ancestral property. It is, therefore, purely a creature of the Muhammadan Law, and as the exercise of the right is adverse to public interest, the Courts are not disposed to recognise this right beyond the strict limits of the Muhammadan Law or beyond the decisions of the Courts."
' The learned Judge, while relying upon the case of Shaikh Muhammad Jamil v. Khub Lal Raut (1920)
5 PLJ 740 further observed:-- "That case is an authority for the position that the milkiat or ownership of the property is sine qua Jinn for exercise of the right of pre-emption and that the pre-emptor must have the milkiat or ownership in the property on account of which the claims the right of pre-emption.".
' Reference was also made by the learned Judge to Amir Ali's Muhammadan Law 4th Edition, Vol. 1, page 715, wherein it has been stated that:-- "As corollary to the above principle it follows that no right of preemption arises in respect of the property leased in perpetuity."
' The same view has been expressed in: (1) AIR 1921 Pat. 164, (2) AIR 1929 Pat. 214, (3) AIR 1941 Born.
262 and (4) AIR 1967 Pat.
226.
15. It may be pointed out that in the present case there is hardly any controversy on the point that the leasehold rights enjoyed by the parties in their respective properties are of permanent character and are also heritable and transferable. "Owner" has been defined by the Concise Oxford Dictionary as "one who owns a property". "Own" has also been defined by the same Dictionary as "of one's own, belonging to one (exclusively)". The definition of "owner", "ownership of property' and "property" as given in Law Lexicon by P. Ramanatha Aiyar, 1940 Edition, has been referred to in Mughal Baz Khan v. Sher Afzal Khan PLD 1976 Pesh. 19 by the Peshawar High Court as follows:- `Owner'.--One who has dominion of a thing, real or personal, corporeal or incorporeal, which he has the right to enjoy and to do with it as he pleased--either to spoil or destroy it as far as the law permits--unless he be prevented by some law, agreement or convenant which restrains his right." `Ownership of property' is the dominion or right over a thing, real or personal, corporeal or incorporeal, with the owner "to enjoy and to do with it as he pleases--either to spoil or destroy it as far as the law permits--unless he be prevented by some agreement or covenant which restrains his right."
' Property!--Property has been defined as the right and interest which a man has in lands and chattels to the exclusion of others. The term `property' is a generic term of extensive application, and while strictly speaking it means only the right which a person has in relation to something, or that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or objects, it is frequently used to denote the subject of the property, or thing itself which is owned or in relation to which the right of property exists. In the former sense it extends to every species of valuable right or interest, in either real or personal property, or in easements, franchises, and incorporeal hereditaments, and in the latter to everything which is the subject of ownership, of to which the right of property may legally attach, or in other words every class of acquisitions which a man can own or have an interest in."
' In the Ballentine's Law Dictionary, Third Edition, "owner" and "ownership" have been defined as follows:-- "Owner.--One who has complete dominion over particular property.... The person in whom the legal or equitable title rests.... In common understanding, the person who, in case of the destruction or property, must sustain the loss."
"Ownership.--The right of an owner. Title to property. Dominion over property. The right of possession and control of property, including the right to protect and defend such possession against the intrusion or trespass of others.... The right to dispose of a thing as one pleases, provided the rights of others are not thereby infringed or some law violated."
' If this test is applied, then there is no controversy on the point that a person holding leasehold rights in a property can enjoy complete dominion over it, provided the right is of a permanent character and is heritable and transferable. I am positive that the concept of "milk" in the minds of the Muslim jurists could not be materially different. Consequently, in my opinion, the law of pre- emption can equally apply to lessees, depending of course, upon the nature of the lease. The case of Sikandar decided by the Supreme Court is distinguishable as the exact nature of the rights held by the parties in their respective properties was not defined.
16. However, this does not dispose of the matter as in the instant case, admittedly the property owned by the plaintiffs, that is to say, "Matin Centre" is a commercial property. Although, the contention raised by the defendants, that the same is owned by many others and is not exclusive property of the plaintiffs has not been fully established as the plaintiffs' witnesses have not been cross-examined by the defendants' Advocate on this point, but admittedly, the property is not a residential property. The object behind the application of the law of preemption was to safeguard the privacy of Muslim families. In the Dacca case, it was observed by Chowdhury, J. That:-- "The object underlying the pre-emption 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 mill 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. There is one more important aspect of the matter, which appears to have escaped the notice of the learned counsel for the plaintiffs. In large cities such as Karachi, the land in most of the cases, as in the present one, is acquired by co-operative societies on the basis of perpetual lease and it is then allotted in the form of plots to its members. The societies are governed by their bye- laws and therefore, the right of pre-emption cannot be invoked by one member of the society against another. The right of a member of a co-operative society to sell his property to another member can be subjected only to such restrictions as are placed thereon by the bye-laws of such society and the right to transfer or sale of such property cannot be subjected to restrictions imposed by the law of pre-emption. I am, therefore, of the view that the plaintiffs cannot claim any right of pre-emption in the suit property and the issue is decided accordingly.
17. The upshot of the above discussion is that the present suit is not maintainable.
18. Since this issue goes to the root of the matter, it is not necessary for me to decide the other issues in the case.
19. In the result, the suit of the plaintiffs is dismissed with costs.