' This appeal made under section 96 C.P.C. Is directed against the judgment and decree dated 12- 12-1983 passed by Senior Civil Judge, Sukkur, by Which he dismissed the suit of pre-emption filed by the appellant against the respondents.
2. The appellant is the owner of commercial premises bearing C.S, No, B.2440, situated at Shahi Bazar Sukkur. The disputed shop bearing C.S. No, B-2441 is situated adjoining to the premises owned by the appellant. On 19-6-1980 the respondents Nos.2 to 6 sold away C.S. No, B-2441 to respondent No,1 against a consideration of Rs,60,000 through a registered sale-deed, and delivered vacant possession to him. It is the case of the appellant that as soon as he came to know about this deal he went to respondent No,1 and made `Talab-eMowasibae, followed by `Talab-e- Ishhad' in presence of witnesses asserting his right of pre-emption. The refusal of respondent No,1 to accept the demand of appellant led the parties into this litigation.
3. The respondents resisted the suit on various grounds. According to them an amount of Rs,40,000 was paid to the vendors on 18-6-1980 when possession was delivered to respondent No,1. The making of valid demands was also questioned by the contesting respodents, who in alternate took the plea that the demands, if any, were premature.
4. The parties went to trial on the following issues:-- (1)Whether the plaintiff has right of pre-emption in the suit property?
(2)Whether the plaintiff has made the required talabs (demands) according to law?
(3)Whether the defendant No,1 has improved the premises in suit and has spent Rs,50,000?
(4)Whether the suit is maintainable in law?
(5)To what relief the plaintiff is entitled?
(6)What should the decree be?
5. The appellant examined his son and attorney Muhammad Hafiz (P.W-1), Muhammad Sultan (P.W-2), and Ghulam Jan (P.W-3), while the respondent No,1 examined himself (D.W-1) and Syed Insaf Ali (D.W-2).
6. On the assessm ent of evidence both oral as well as documentary, the learned Senior Civil Judge decided almost all the material issues against the appellant, giiring rise to this appeal.
7. I have heard Mr. Muhammad Sadiq Khan, learned counsel for appellant and Mr. Farkhand Ali, learned counsel for respondents. I have also gone through the record of this case carefully.
8. Since the majority of the Muslims living in this country are 'Sunni' the presumption will be that the parties in this case are also 'Sunni'. Under Sunni Law the persons entitled to pre-empt are as follows:-- iShafi-i-Sharika co-sharer in the property. iiShafi-i-Khalita participator in the immunities and appendages of the property; and IiiShafi-i-jar a neighbour, owner of adjoining immovable property.
' Admittedly the appellant owns shop bearing C.S. No, B-2440, which is adjoining to the disputed shop. He is thus `shaft-i-jar' and in the absence of `shaft-i-sharik' and `shaft-i-khalit' is entitled to claim pre-emption in respect of the disputed shop.
9. The appellant did not step into the witness box, but examined Muhammad Hafiz (P.W-1) who is his son and attorney in support of his case. Muhammad Hafiz (P.W-1) has testified that the appellant came to know about this deal on 19-6-1980 when possession of the shop was delivered to respondent No,1, and immediately thereafter the appellant made `Talab-e-Mowasibar (demand of jumping), followed by `Talab-e-Ishhad' made on the next day in presence of Muhammad Sultan (P.W-2), and Ghulam Jan (P.W-3). The evidence of Muhammad Hafiz (P.W-1), however, shows that there was no immediate demand and `Talab-e-Mowasibar was made after collecting the witnesses and spending about half an hour. Muhammad Hafiz (P.W-1) speaks about the `Talabs' in the following words:-- "I and my father knew about the sale of suit property on 19-6-1980 when Haroon, the previous owner had come to the suit property for handing over possession to defendant No,1. The shop bearing No,2441 used to be closed and on that day it was opened by Haroon and Muhammad Tahir. On inquiry Haroon disclosed that it is sold to defendant No,1 for Rs,60,000. On coming to know about the sale from Haroon my father called Ghulam Jan and then went for calling Sultan from his shop. When both gathered my father made demand asserting his right of preemption. My father disclosed that suit shop is adjacent to our shop, and as such, he has got a right of pre-emption. He further disclosed that he is ready to purchase it for which it is sold to defendant No,1. They refused to re-sell the shop. On next day at about 3 or 4 P.M. My father, myself and two witnesses, namely, Ghulam Jan and Sultan were taken to suit property and there again the right of pre-emption was asserted."
' In cross-examination Muhammad Hafiz (P.W-1) made the following admissions:-- "Thereafter we all the three, viz. Myself, my father and Gullam Jan went to the shop of Sultan for calling him. We informed and explained the purpose of going to the shop of Sultan. We explained to Sultan that we were asserting right of pre-emption and we asked him to be a witness and for that purpose we took him to the shop. The first demand was made after we called Sultan at shop and we all four were present. The second demand was made on next day. It took about 1/2 hour to gather and bring Sultan at shop.
10. It will be seen from the above admissions that `Talab-e-Mowasibae was not made, immediately after the appellant came to know about this deal. According to Muslim Law by Saksena, `Talab-e- Mowasibar or immediate demand literally means demand of jumping, by which pre-emptor should make immediate assertion of his right on getting the information of the transfer of the property. The expression clearly shows that the right of pre-emption must be asserted with the utmost promptitude. The case of Monajal Huq v. Shafiullah and another, reported in PLD 1964 Dacca 640, is an important authority on this subject, wherein it was held:- "A person entitled to pre-emption must make the immediate claim to the right of pre-emption called Talab-e-Mowasibat as soon as the fact of sale is known to him. The right is lost if there be any delay in claiming it."
' After examining the available case law on this point Idris, J. Observed as follows:-- "In the present case, plaintiff did not make 'the immediate demand, that is, he did not perform the ceremony of Talab-e-Mowasibat immediately on coming to know of the sale in the Registration office, but he went to the land at the distance of 2-1/2 miles and there made the claim. As the Talab-e-Mowasibat was not made instantly on coming to know of the sale, the right of pre- emption was lost."
11. In Smt. Sundri Bai v. Ghulam Hussain, reported in 1982 CLC 2441, Saeeduzzaman Siddiqui, J., made this subject more clear in the following words:-- "Talab-e-Mawasibat" is defind as the immediate claim. The `Shafee' must make this claim the moment he learns of the sale of the property and any delay in asserting this claim will invalidate the right of `Shafa" for the right of `Shafa' is but of feeble nature. The Prophet (peace be upon him) has said "the right of Shafa is established in him who prefers his claim without delay (see Hedaya by Hamilton at page 550). The respondent has not explained the delay of about 1-1/2 hours in making the Talab-eMowasibat. It has come in the evidence that the appellant was residing on the Ist floor while the respondent was on the ground floor of the same building. In these circumstances the delay of 1-1/2 hours in making the first demand (Talab-e-Mowasibat) was fatal to the claim of `Shafa' asserted by the respondent.)"
12. While examining this aspect of the case Ibadat Yar Khan, J (as he then was) made the following observations in the case of Budho through Legal Representatives v. Karim Bux and 5 others reported in 1985 CLC 1037:-- "It may be stated that Talab-e-Mowasibat 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."
13. It was further observed in Muhammad Saeed v. Mst. Hajiani Noor Bai and others, reported in 1983 CLC 1883, that where `Talab-e-Mowasibar and Talab-e-Ishhad' are not made in accordance with the law, the suit is liable to be dismissed.
14. The respondent No,1(D.W-1) has further testified that the possession of the disputed shop was delivered to him on 18-6-1980 and not on 19-6-1980, which fact is borne out from the sale-deed (Ex.58) and the receipt (Ex.66). Syed Insaf Ali (D.W-2) who had attested the receipt (Ex.66) has supported the case pleaded by respondent No,l. The evidence of Syed Insaf Ali (D.W-2) who appears to be an independent person, therefore, goes to show that both the demands, viz. "Talab- e-Mowasibat" and" Talab-e-Ishhad" were delayed for a considerably long time. This delay is liable to defeat the claim of appellant.
15. Mr. Muhammad Sadiq Khan, learned counsel for the appellant has contended that `Talab-e- Ishhad' may be combined with `Talab-e-Mowasibar and where at the time of `Talab-e-Mowasibar the pre-emptor has an opportunity of invoking witnesses in the presence of vendor or vendee or on the premises to attest the `Talab-e-Mowasibar, and witnesses are in fact invoked to attest it, it will suffice for both the TALABS. He has relied upon the cases reported as Jadal v. Abdul Majeed and 2 others PLD 1978 Karachi 732, Karim Bux and 2 others v. Syed Mushtaq Ali and 2 others 1984 CLC 33 and Budho through Legal Representatives v. Karim Bux and 5 others 1985 CLC 1037. I have no cavil with this proposition of law, but in the present case the appellant speaks of making separate demands (TALABS). Even otherwise the `Talab-e-Mowasibar was delayed, thereby defeating the claim of the appellant.
16. It is also contended on behalf of the respondents that TALABS (if accepted to have been made) were premature as it is sale alone which gives rise to pre-emption. The sale-deed is on record (Ex.58). It was executed and presented for registration by the parties on 19-6-1980. The deed was, however, entered into register on 21-6-1980. In my view it is the intention of the parties as to the date when the sale should be considered to be complete, which is to be accepted. The parties executed registered sale-deed on 19-6-1980. The possession F was already delivered to respondent No,1, and, therefore, there was nothing left for any one to do. The cause of action to claim pre-emption had, therefore, accrued to appellant on 19-6-1980 and not on 21-6-1980.
17. The above discussion brings me to this conclusion that the appeal must fail. I would, therefore, dismiss the appeal, but leave the parties to bear their own costs.