' Mohammad Ayub Khan, the plaintiff-petitioner herein, instituted a suit to pre-empt the sale of landed property effected in favour of Mohammad Zaman and Mohammad Akram, the defendant- respondents herein, vide mutation No,1035 dated 27-8-1987.
2. The suit was contested and, finding the parties at variance on a number of issues, the learned Civil Judge, 1st Class Abbottabad after recording such evidence as the parties produced in support of their respective pleadings, dismissed the suit vide his judgment dated 26-6-1989 primarily on issue No,7 which pertained to the competency of the suit in its present form for the reason of its lacking legal requirements. The burden of its decision has been the failure of the plaintiff to prove as to when he got the knowledge of the sale and when did he announce his intention to pre-empt the transaction and as such the very first requirement of law as contained in section 13 of the N.- W.F.P. Pre-emption Act, 1987 relating to `talb-i-muwathibar has not been fulfilled.
3. The petitioner preferred an appeal against the aforesaid judgment but his efforts in this behalf also proved abortive in that the learned Additional District Judge, Abbottabad while maintaining the findings of the learned trial Court, dismissed his appeal vide his short order dated 7-10-1989.
Hence this revision petition.
4. I have heard Mohammad Ayub Khan, Advocate learned counsel for the petitioner as also Qazi Mohammad Asif, Advocate learned counsel for the respondents and perused the record of the case as well, with considerable degree of care.
5. It is contended on behalf of the petitioner that the impugned judgments of both the learned lower Courts suffer from an infirmity of misreading of evidence inasmuch as both the learned lower Courts failed to appreciate para 3 of the plaint, the notice served by the petitioner in compliance of talb-i-ishhad and the statement of the petitioner in Court, the collective reading whereof renders it more than clear that the petitioner had adequately complied with the requirement of talb-i- muwathibat.
6. As against this, the learned counsel for the respondents maintained that the requisite need of the immediate exercising his right of pre-emption in the meeting or sitting when he got the knowledge of the sale was the burden of petitioner which lay heavily on his shoulder to discharge and to prove conclusively not only the time and venue where he had received the information of the sale but also his spontaneous reaction of declaring his intention to pre-empt the same. In this regard he has taken me through the plaint, the notice allegedly served upon the respondents as also the deposition of the petitioner and his two witnesses and pointed out the infirmities, which all these pieces of evidence are suffering from; in that none fulfils either severally or collectively the requirement of section 13 of the N.-W.F.P. Pre-emption Act, 1987. He finally urged that whether the talb-i-muwathibat has been duly established or not is primarily a question of fact and since both the learned lower Courts have arrived at a concurrent finding on the failure of the petitioner in doing so, the impugned judgments of the learned lower Courts cannot be interfered with in exercise of the revisional jurisdiction of this Court unless any jurisdictional error is pointed out which is not the case in the instant matter.
7. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their pleas.
8. To appreciate the arguments of the learned counsel for the parties it will be useful to make a reference to section 13 of the N.-W.F.P. Pre-emption Act, 1987 in extenso:-
13. "Demand of pre-emption.--- (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(a) Talb-i-Muwathibat;
(b) Talb-i-ishhad; and
(c) Talb-e-Khusumat. Explanations: I. `Talb-i-muwathibae means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption. Note.--Any words indicative of intention to exercise the right of preemption are sufficient. II. `Talb-i-Ishhad' means demand by establishing evidence. III. `Talb-i-Khusumat' means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make talb-i-muwathibat.
(3) Where a pre-emptor has made talb-e-muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32 or knowledge, whichever may be earlier, make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption: ' Provided that in area where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talbe-ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat under subsection (2) and talb-i-ishhad under subsection (3) he shall make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.
9. A bare reading of the aforequoted provision would reveal that the three demands asserting the right of pre-emption have their own respective A connotations. The first demand i.e, talb-i- muwathibat or, what is literally meant, the jumping demand is defined in the first Explanation to subsection (1) of section 13 which envisages firstly the act of a prospective pre-emptor's coming to know of the factum of a sale, secondly such knowledge/information emanating from a sitting or meeting i.e, Majlis and thirdly, and rather foremostly, declaration of his intention to exercise the right of pre-emption immediately on gaining the knowledge of the sale. The Note appended to this Explanation manifests no express form so as to indicate his intention in exercise of such right.
10. The modality of making talb-i-muwathibat appears to be contained in subsection (2) ibid whereby, irrespective of the source of information or knowledge of the sale, it shall follow the course as envisaged in first explanation to subsection (1). It would, therefore, be seen that an element of spontaneity is present in the principle of talb-i-muwathibat as defined in the Act and the prospective pre-emptor, when the factum of sale comes to his knowledge; and he is further required to do it immediately. Having regarding to the language used in the Explanation I to subsection (1) of section 13, it can be urged that the expression of his intention to pre-empt such a sale is rather contemporaneous with the knowledge thereof.
11. But how far this spontaneity is a sine qua non for the first talab and in what pragmatic manner can it be visualized in terms of human conduct, his limitations and circumstances which at times, are beyond his control; are the matters that need to be examined.
12. Unfortunately both the learned counsel appearing for the parties could not lay their hands on any decision of the superior Courts in Pakistan dilating upon this question by keeping in view the precise provision of such a Statute in this regard as may be at pari materia with the N.-W.F.P. Pre- emption Act, 1987. They, however, referred to the case of "Hussain Bux v. Mir Muhammad and three others" reported in PLD 1985 Karachi 161, wherein the principles governing the exercise of right of pre-emption including talb-i-muwathibat have been discussed rather in detail by referring to certain earlier judgments of Indo-Pakistan Sub-Continent. A reference to Hussain Bux's case, however, would reveal that the real question before the learned Single Judge of Karachi High Court was not solely as to what is meant by talb-i-muwathibat and what is the modality of exercising it but was foremostly as to whether the omission on the part of a pre-emptor to mention this talab at the time of making the second talab, namely talb-i-ishhad would be fatal or not, to the right of a pre-emptor. Therefore, I am afraid, Hussain Bux's case will not be of adequate assistance in resolving the controversy involved in the instant case.
13. The question, therefore, remains that in so far as concerns the Explanation to subsection (1) of section 13 whereby talb-i-muwathibat is defined, one can visualize the occasion and expect of a prospective pre-emptor to express his intention of pre-empting the sale there and then in the presence of or in the company in which he was sitting and learnt about the sale. As to the factor of time limitation in this regard, a reference to Hedaya shall be useful according to which: "if the man claims his Shaffa in the presence of the company amongst whom he may be sitting when he receives the intelligence,he is the "Shafee", his right not being invalidated unless he delays asserting it till after the company have broken up".
14. But what about other occasions, when on learning the factum of sale from the source other than such meeting or Majlis as mentioned in the Explanation, which can be innumerable in their nature from the view point of place and time, a prospective pre-emptor is required to do. For, he may come to know of the sale while being far away from his place of business, residence or, for that matter,from where the property sold is situate or the vendor/vendee resides. Again he may gain the knowledge of sale from such sources where the question of immediate reaction of his, in the form of declaring his intention to pre-empt the same, cannot be practically possible; for instance, from the newspaper, while travelling in a bus, train or aeroplane, or on return in the evening to his house from his wife. He may be sick and confined to bed or even hospitalized, he may be in the mid of performing religious duties such as Haj or Umra or is away from his country on an official or personal tour abroad. One can count hundred and one such like situations where, on learning the sale of a property, a prospective pre-emptor can neither make a declaration nor is he in a position to prove that on gaining the knowledge as such, he made up his mind to pre-empt the sale and made a declaration to this effect immediately.
15. It may also be borne in mind that if a pre-emptor has a legal right at all in matters of pre- empting a sale, however weak or piratic that right may be, it cannot be rendered negated by creating such hurdles in his way as to make the same insurmountable for him and thus carve out methods in order to frustrate this right of .His.
16. On this aspect, according to Baillie's Digest on Mohammadan Law 1975 Edition pages 183 and 184 a pre-emptor should prefer his claim as soon as he is informed of his right; but should he delay to do so from any necessary cause preventing his personal appearance, or to the appointment of an agent to assert it on his behalf, his right is not extinguished So, also, if he were imprisoned for a claim which he is unable to discharge, or is unable to appoint an agent to prefer a claim on his behalf, the apology would be sufficient to preserve his right notwithstanding his delay to-assert it.
Again: "it is at the same time incumbent on him to use all proper diligence in preferring his claim as soon as he becomes acquainted with his right, that is, so far as is customary, in so much that when travelling with that intent, he is not obliged to use greater expedition in his journey than is habitual to himself. Further, should he be engaged in the performance of any religious duty, whether indispensable or discretionary, he is not obliged to break it off, but may lawfully wait till it is completed. In like manner, if the time of prayer is at hand, he may lawfully wait till he has purified himself, and then perform his devotion without hurry or restraint. And," should he receive intelligence of the occurrence of his right whilst on a journey, and be unable to prosecute his claim by personally appearing or appointing an agent, the right is not extinguished, even although he should also neglect to call upon witnesses to attest his intention to demand it".
18. Similarly, according to Hedaya "the power of accepting or rejecting the Shaffa being established, a short time should necessarily be allowed for reflection, in the same manner as time is allowed to a woman to whom her husband has given power to be divorced or not". (The Hedaya 1975 Edition Chapter II page 550).
19. The dictionary meaning of the word 'immediate' as given in Black's Law Dictionary is as follows:- "Immediate.-- Present; at once; without delay; not deferred by any interval of time. In this sense, the word, without any very precise signification, denotes that action is or must be taken either instantly or without any considerable loss of time. A reasonable time in view of particular facts and circumstances of case under consideration."
' The accumulative effect of the foregoing discourse thus leads me to an inescapable conclusion that the word 'immediate' as used in Explanation I to subsection (1) of section 13 of the N.-W.F.P. Pre- emption Act,1987 needs be given rather a liberal construction in aid of the right of pre-emption accrued to a prospective pre-emptor.
20. Viewed in the perspective of what is stated above, I am clear in my mind that no hard and fast rule can be laid down as to what precise yardstick shall measure contemporaneity of the knowledge of the sale with the demand that is to be made immediately in pursuance of Talb-i- musathibat with reference to Explanation I read with subsection (2) of section 13 (ibid) and the time factor, in assessing as to whether talb-i-muwathibat has been made immediately or not, of the knowledge acquired of the sale by the prospective pre-emptor; shall vary from case to case, keeping in view the circumstances relevant to the peculiar nature and facts thereof.
21. The fact of the matter is that `talb-i-muwathibar may be and has been constantly considered as a private act which the purchaser against whom right is claimed has no power of refuting it and it is `talb-i-ishhad' which is the only public act connected with the claim to pre-emption of which the purchaser has necessarily a cognizance and it is this `talab' which is a demand with invocation which must take place with the least practical delay. Incidentally no such requirement is made, or test is laid in so far as `Talb-i-muwathibar is concerned in section 13 (1). This is a further distinguishing feature between the two talabs. Again, as stated earlier, the Note appended to Explanation I to subsection (1) of section 13 would show that there is no specific form or manner in which the intention to exercise the right of pre-emption is to be manifested. This being so, it would not be material in what words or manner the claim is preferred. It will be sufficient if they imply a claim.
22. In the foregoing background, it can be said with an amount of certainty that although initial burden to prove, that he has made lalb-i-muwathibar with a least delay and at an earliest possible opportunity, manifesting his intention to pre-empt the sale in unequivocal terms, lies on a prospective pre-emptor yet, it can be said with an equal amount of certainty that no specific form or manner, whereby he demonstrated his intention, can be expected of him to prove and it will be sufficient if through this evidence; he raises, in the mind of the Court, a legitimate presumption in his favour to the effect that, by words spoken or by conduct, he implied the making of `talb-i- muwathibar within a reasonable immediacy.
23. It may also be appreciated that although the principle of pre-emption has been followed by the Courts in Pak-India Sub-Continent for the last more than a century but the enforcibility of this right through legislation is of the recent past. In the case of this province the last legislation was the N.- W.F.P. Pre-emption Act, 1950 which remained in the field for about 37 years before coming into force of the present legislation in the form of N.-W.F.P. Pre-emption Act, 1987 and whereby is introduced the new mannerism of enforcing the right of pre-empt ion by way of `talb-i- muwathibat', talb-i-ishhad' and `talb-i-khusumat. For a lay man to understand this newly- introduced concept of `talabs' in law, more particularly the first `talb-i-muwathibat', with all its factual and legal intricacies; is not easy to comprehend and it will take some time for him to get himself acquainted with, and particularly as to precisely what kind of evidence shall be required to prove it to the satisfaction of the Courts. I am of the view that till such time as they get adequately acquainted with the law, the Courts shall have to show indulgence in matters of testing the proof forthcoming, on the point of making lalb-imuwathibat; on.The touchstone of established principle of scrutiny.
24. Reverting to the case in hand, a reference to the record would indicate that the plaintiff- petitioner could not produce evidence in support of his making the lalb-i-muwathibar with such reasonable immediacy as to raise the requisite belief in the minds of both the learned lower Courts that the pre-emptor has duly discharged the onus.
25. Furthermore, it cannot be denied that the factum of making lalb-imuwathibat' is primarily a question of fact and in this regard the concurrent findings, arrived at by both the learned lower Courts, I am afraid, cannot be interfered with in the exercise of revisional jurisdiction of this Court.
For, there has been no allegation of any jurisdictional error which the impugned judgments are suffering from. In this view of the matter, I do not find the impugned judgments violative of the provisions of section 115, C.P.C.
26. Resultantly this revision petition fails and is hereby dismissed with no order as to costs.