ORDER ORDPR RASHEED AHMAD RIZVI, J.- Through this application the plaintiff, who has-pre-emoted sale between defendants No. 1 to 4 (vendors) and defendants No.5 to 12 (vendees), is seeking interim injunction restraining defendants No.5 to 12 and their agents, constructors, employees etc. From digging or in any manner raising construction on the plot bearing Survey No.PR-2/4,' ready Quarters, Saddar, Karachi admeasuring 4255 square yards and seeking further injunction restraining the said defendants from booking any shops/flats/offices in the proposed multi-store yed building "Ruby Plaza" being constructed on the said plot till final decision of the above suit.
2. Brief facts relevant for the decision of this application as stated in the plaint are that the plaintiff by way of a family settlement is co-owner to the extent of 10% share in the property bearing No.PR- 2/3, Greedy Quarters, Karachi measuring 2045 square yards which was purchased by the parents of the plaintiff in the year 1964. At present, a building, namely, Al-Noor Chambers is standing on the said plot which was constructed by the parents of the plaintiff. Defendants No. 1 to 4 are non- Muslims and profess Parsi religion. They were the owners of Plot No.4, Sheet PR-2, Greedy Quarters, Karachi (hereinafter- referred to as "suit property") which was sold by these defendants to defendant No.5, namely, M/S. Aneeq Associates a partnership firm. Defendants No.6 to 12 are partners of defendant No.5. That on 22.2.1995 at about 2.30 p.m. The plaintiff noticed that household goods and furniture were being removed from the property in suit who immediately came on the site and inquired from the persons removing the household goods and furniture when he was informed that the suit property has been sold by defendants No. 1 to 4 to the defendant No.5, thereupon, immediately in presence of two witnesses, the plaintiff made Talab-e-Muwasibat on the site. That again some time in the first week of March, 1995, the plaintiff after noticing the advertisement in the newspaper for booking of offices in Ruby Plaza made the second demand viz., Talab-e-Ishad in presence of witnesses expressing his willingness to purchase the suit property at the same price which the defendants No.5 had paid to the vendors. That on 26.3.1995 the plaintiff through his Counsel called upon the defendant No. 5 and its partners and notified his claim for preemption over the suit property and made offer to purchase the same at the same price. The defendants No.5 to 12 through their reply dated 11.4.1995 denied the claim of plaintiff.
3. The plaintiff based his claim for the pre-emption by way of vicinage as Shaf-e-Dar. In para-5 of the plaint, the plaintiff has also based his claim for preemption on the ground that there is passage/galli, namely, Magazine Lane between the suit property and the property owned by the plaintiff, as such the plaintiff being immediate neighbour of the suit property is also entitled to preempt the sale in question. The third demand viz., Talab-e-Tamlik was made by the plaintiff by filing this suit. In view of these facts, the plaintiff has prayed for interim injunction.
4. I have heard Mr. Khalil-ur-Rehman's Advocate for the plaintiff and Mr. G.H. Abbasi, Advocate for the defendants No.5 to 12 at length. It is vehemently contended by Mr. Khalilur Rehman's that in view of the decision of Supreme Court in the case of HAJI RANA MUHAMMAD SHABBIR AHMAD KHAN v. GOVERNMENT OF PUNJAB PROVINCE, LAHORE (PLD 1994 SC 1), the law of pre-emption js also applicable on urban land- This legal position has not been disputed by Mr. G.H. Abbasi who has contested this application on other grounds, which I propose to discuss at later stage of this order.
5. Prior to advent of Moghul Rulers in the Sub-Continent of India, the law of pre-emption whs unknown. With the passage of time, custom of preemption started gaining its root among the village communities which had its origin in the Muhammadan Law. The rules of Islamic Law of Pre- emption and in some cases custom of the village were followed in the villages. In some cases, there were different Customs which varied from the rules of Islamic Pre-emption. Thereafter in some provinces these rights of pre-emption were granted through legislation. The purpose behind this Pre-emption Law as it was prevailing in those days was to prevent strangers to a village from becoming sharers in the village (Reliance is placed on the case of DIGAMBAR SINGH v. AHMAD SAYED KHAN ILR 37 All. PC 129). It was held by the Supreme Court of India in the case of SHRI AUDH BEHARI SINGH v. GAJHAR JAIPURIA AND OTHERS (AIR 1954 SC 417) as follows:- "During the period of the Mughal emperors the law of pre-emption was administered as a rule of common law of the land in those parts . Of the country which came under the domination of the Muhammadan rulers, and it was applied alike to Muhammadans and Zimnees (within which Christians and Hindus were included), no distinction being made in this respect between persons of different races and creeds, vide Hamilton's Hedaya, Vol.III, P. 592. In course of time the Hindus came to adopt pre-emption as a custom for reasons of convenience and the custom is largely to be found in provinces like Bihar and Gujrat which had once been integral parts of the Muhammadan empire."
The grounds on which a claim for pre-emption may be based, in the undivided India, according to B.R. Verma in his Book, Islamic Law, are four in numbers. Firstly, a claim for pre-emption may be based if there is any special law relating to pre-emption. Secondly, in absence of any special law if pre-emption is claimed on the ground of custom. Thirdly, when there is neither special law nor custom then according to Muhammadan Law on the grounds of justice, equity and good conscious and/or lastly, when there is a contract creating a right of pre-emption between the parties.
6. In Pakistan, the claim for pre-emption, as far as Provinces of N.W.F.P, and Punjab are concerned, is now governed by the law which is called Punjab Pre-emption Act, 1991 (previously it was Act I of 1913) and NWFP Preemption Act, 1987 (previously it was NWFP Act XIV of 1950). There is no statutory law on pre-emption as far as Provinces of Baluchistan and Sindh are concerned. Therefore, here, law of pre-emption will be governed, if there is an established custom or according to the Islamic Law. Keeping in view the principles laid down in the case titled as GOVERNMENT OF N.W.F.P, v. MALIK SAID KAMAL SHAH (PLD 1986 SC 360), case of SUO MOTU SHARIAT REVIEW PETITION (PLD 1990 SC 865), case of HAJI RANA MUHAMMAD SHABBIR AHMAD KHAN v. GOVERNMENT OF PUNJAB PROVINCE, LAHORE (PLD 1994 SC 1) and in view of Article 227 of the Constitution of Islamic Republic of Pakistan, the principles of pre-emption which are in consonance with the Injunctions of the Holy Quran and Sunnah may be made basis for a Muslim to exercise right of pre-emption in the city of Karachi.
7. In support of the above observations reference may be made to section 26 of the Sindh Regulation IV of 1827 which reads as follows :- "The law to be observed in the trial of suits shall be Act of Parliament and (Pakistan Laws) applicable to the case, in the absence of such Acts and Regulations, the usage of the country in which the suit arose, if none such appears, the law of the defendant, and, in the absence of specific law and usage, justice, equity and good conscience alone."
In the instant case, there is no statutory law on pre-emption in the province of Sindh, therefore, in the trial of suits, in absence of any Act or usage, law of preemption can be applied on the grounds of justice, equity and good conscience (for reference see the case of AUDH BEHARI SINGH v.
GAJDHAR JAIPURIA AND OTHERS AIR 1954 SC 417). Keeping in view the Islamic provisions of the Constitution 1973 and several case law, this rule "justice, equity and good conscience" is to be applied in Pakistan with special reference to the Islamic Jurisprudence and the law of Quran and Sunnah. Mr. Muhammad Afzal Zullah, J. (as he then was) held in the case of A.M. QURESHI v. UNION SOVIET SOCIALIST REPUBLIC AND ANOTHER (PLD 1981 SC 377) that the fundamental principles and juridical norms of Islam, its philosophy, jurisprudence and its common law shall govern the application of rules of justice and equity as also would control the discretion of the Judges when the question of good conscience and fair play are involved; I am further fortified in my view by the case law reported as COMMISSIONER OF INCOME TAX PESHAWAR v. SIEMEN A.G. (PLQ 1991 SC 368) wherein the Hon'ble Supreme Court of Pakistan, on the application of Article 227 of the Constitution has held as follows:- It was held in the case of Haji Nizam Khan by the Lahore High Court PLD 1976 Lahore 930 and subsequently affirmed in several legal fields, including criminal and fiscal, that so long as the existing statutes are not brought in conformity with Injunctions of Islam (Article 227 of the Constitution), their interpretation, application and enforcement wherein discretionary judicial elements are involved, only that course would be adopted which is in accordance with the Islamic Philosophy, its common law and jurisprudence. (See also the case of MUHAMMAD BASHIR PLD 1982 SC 139 and the case of MIAN AZIZ A. SHAIKH PLD 1989 SC 613)."
8. It is pertinent to note that several years ago the Islamic Ideology Council proposed a draft law of pre-emption approved by the Federal Government and sent the same to all four provinces (For reference see MUHAMMAD ISMAIL QURESHI AND OTHERS V. GOVERNMENT OF PUNJAB AND OTHERS PLD 1991 FSC 80). The Provinces of N.W.F.P, and Punjab with some modifications enacted the law of pre- emption in their respective provinces. So far the province of Sindh has not introduced any faw on preemption despite the fact that law of pre-emption is now being treated as a part of Shariat Laws.
It is desired that Sindh Government should also consider the enforcement of law of pre-emption through an Act as proposed by the Islamic Ideology Council. Unless any Act on the law of pre- emption is introduced in the province of Sindh, the principles of law of pre-emption as laid down by Faqirs and Scholars of muslim jurisprudence (in reference to the Hadiths) are very much applicable in this suit for preemption filed by the plaintiff as it is not violative of any custom, usage or personal law of defendants No. 1, to 4.
9. Mr. G.H. Abbasi, Advocate has raised three preliminary objections to the maintainability of this suit as well as to the grant of interim injunction which are as follows:
(1) That the plaintiff is not the owner of the property adjacent to the suit property as such he cannot pre-empt sale of the suit property against the vendees.
(2) That the vendors are non-Muslims, therefore, the plaintiff cannot preempt sale against them.
(3) That the three qualifications attracted for the purpose of claiming pre-emption are absent in the case of the plaintiff.
10. In regard to the first objection, case of Mr. Abbasi is that the plaintiff being a lessee does not fall within the term of 'full owner' as such he cannot base his claim for pre-emption. He has relied upon the cases of SAKINA BIBI v. AMIRAN AND OTHERS (ILR 10 All. 472) and the case of DEWANUTULLA v.
KAZEM MOLLA (ILR 15 Cal. 184). He has also pointed out that as per document of the plaintiff (Annexure-A to the plaint), the leasehold right of the suit property has expired in the month of June, 1986. According to the averments of the plaint, the plaintiff has claimed that he is owner of 10% share in the adjacent property. Nowhere he has said that the other co-owners have also preempted the sale against the vendees. In his prayer elapse, he is seeking relief for himself. Along with the suit, he has also filed a copy of irrevocable general power of attorney dated 12.3.1990 (Annexure-B to the plaint) through which the other co-owners have appointed and nominated the plaintiff on their behalf to act for the several properties including the authority to sell, gift, mortgage, redeem, license, exchange or to settle their properties but nowhere in this general power of attorney any specific right was conferred upon the plaintiff to make claim of preemption on behalf of the other co-owners. All the three TALABS as made by the plaintiff, were on his on behalf and nowhere it is mentioned that these demands were also raised on behalf of other co-owners.
The plaintiff has nowhere disclosed his status in the suit as attorney of the other co-owners. These facts are prima facie, sufficient to support the contention that the plaintiff is not the full owner of the adjacent property on the basis of which'' he is pre-emptings sale against the vendees.
According to Mr. Abbasi, the other point which runs against the plaintiff is that the lease of his expired in the year J986 and has not yet been renewed.
11. Mr. Abbasi has relied upon two judgments of the Indian High court to support his contention that where the plaintiff is not an owner or even if he is holding leasehold rights in perpetuity, he is not entitled to base his claim for preemption. That such owner being lessee is at par with the status of a tenant. According to the learned Counsel, for claiming right of pre-emption, the plaintiff should be absolute, full and complete owner. In the case of SAKINA BIBI v. AMEERAN AND OTHERS, a Division Bench of Allahabad High Court held that for raising a claim of pre-emption, the pre-emptor should- have vested ownership and not a mere expectancy of inheritance or revisionary right, or any other action of contingent right, or any interest which falls short of full ownership. The rule laid down in the case of DEWANUTULLA v. KAZEM MOLLA AND OTHERS by a Division Bench of Calcutta High Court, is not attracted in the present circumstances of this case. However, the question of basing a right of preemption on the lands which are having a temporary allotments, quasi- permanent allotments or are of permanent settlement, came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of HAJI SULTAN MUHAMMAD AND ANOTHER v.
MUHAMMAD SIDDIQ (PLD 1973 SC 347) wherein it was held that section 6 of the Lands Settlement Act of 1958 and section 16 of the Pakistan (Administration of Evacuee Property) Act, 1957 did not intend or constitute any bar to the enforcement of the right of pre-emption by a civil suit as the relief sought in the pre-emption suit is merely the substitution of the pre-emptor for the vendee. It was further held that the corpus of the property remains evacuee and a successful pre-emption suit and a Civil Court would merely bring about a change by substituting the pre-emptor for the vendee as the holder of the rights which were sold to the vendee by the quasi-permanent allottee.
The following conclusions were formulated by the Hon'ble Supreme Court: "(1) There is no right of pre-emption in regard to sale by temporary allottees of their rights in the lands as they do not get any saleable interest in those lands held by them temporarily.
(2) Permanent transferees under the Land Settlement Act acquire full ownership rights of the lands conferred on them and the sale by them is the sale of agricultural land owned by them which is subject to the right of pre-emption under the Pre-emption Act.
(3) The rights in land allotted to confirmed allottees under the Land Settlement Act and the Settlement Scheme is "real property" and the rights conferred on them fall in the category of 'village immovable property*. The sale of such rights is pre-emptiable under the Punjab Pre-emption Act."
12. It has not been denied by the defendants that the predecessor-in- interest of the plaintiff, acquired the property from Settlement Department under the settlement scheme of Displaced Persons Compensation and Rehabilitation Act, 1958 and that the predecessor-in-interest of the plaintiff were enjoying leasehold rights of 99 years. Now a multi-store yed building, namely, "Al- Noor Chambers" is standing on this land. In view of the law laid down by the Hon'ble Supreme Court in the case of HAJI SULTAN MUHAMMAD, the attack of Mr. Abbasi on this ground is misconceived.
However, Mr. Abbasi's contention that the plaintiff is not the "full owner" and that the lease rights have expired and have not yet renewed have force and makes the claim of plaintiff doubtful.
Supreme Court has followed the rule as held in the case of HAJI SULTAN MUHAMMAD in the subsequent judgments, namely, FAZAL DIN v. SADIQ KHAN AND OTHERS (1982 SCMR 1126) and in the case of ROSHAN ALI v. NOOR KHAN AND OTHERS (PLD 1985 SC 228).
13. The second objection of Mr.G.H. Abbasi, Advocate is that since the vendors i.e. Defendants No. 1 to 4 are non-Muslims/Parsis as such the law of preemption is not applicable. He has relied upon the book titled as MUSLIM LAW AS ADMINISTERED IN BRITISH INDIA by Kashi Prasad Sakena, the case of DWARKA DAS AND ANOTHER v. HUSAIN BAKHSH (ILR 1 All. 564) and the case of ALLAH BUX v. JANO AND OTHERS (PLD 1962 Kar. 317) in the reported case of DWARKA DAS, the vendors were Hindus by religion. The plaintiff and the purchaser were Muslims. The matter was referred to the Full Bench of i.e Judges of Allahabad High Court. The majority of the Hon'ble Judges held that were that the vendor is a Hindu, a suit to enforce a right of preemption founded upon Muhammadan Law in not maintainable. In the case of ALLAH BUX v. JANO. The question before a Division Bench of this Court was that when the vendors and the vendees profess the Shia faith while the preemptors are Sunnis, therefore, which law would be applicable? It was held by the Division Bench of this Court as follows: - " On the other had, no fault can be found in the reasoning of the Allahabad High Court which has, consistently, held that it is not the law of the vendee which would apply to such cases, because the right of pre-emption in not a personal right and being in the nature of a limitation on the power of the vendor it is the vendor's law or that of the pre-emptor which would apply.
14. Mr. Khalilur Rehman's has relied upon section 18 of the N.W.F.P. Preemption Act, 1987 (Act X of 1987) which provides that a Muslim and a non- Muslim may exercise the right of pre-emption against each other. He has also invited my attention to section 18 of the Punjab Pre-emption Act, 1991 (Act IX of 1991) where identical provision is available in support of his contention that in Sindh also as there is no established custom contrary, right of pre-emption is available against a non- Muslim. Charles Hamilton, in his book The Hedaya, Chapter III, Book XXXVIII, has mentioned that a Muslim and a Zimmi being equally affected by the principle on which Shaffa is established and equally concerned in its operation are, therefore, on equal footings in all cases regarding privileges of Shaffa. In Article 227 of Constitution, 1973, there is a rider in subclause (3) which provides that nothing in this Part (Part IX) shall affect the personal laws of non-Muslim citizens or their status as citizens. It b argued that in Article 20 of the Constitution, every citizen b guaranteed the right to profess, practise and propagate his religion subject to law, public order and morality. In such circumstances, the question arises whether a non-Muslim can be subjected to the law of pre- emption, in absence of any custom or statutory law, in furtherance -of Article 227 of the Constitution?
15. It b clear that during Mughal era and even today pre-emption b practised in India amongst non-Muslims. Such practice b cither cashflow on principles of Muslim Law or on the custom or usage prevailing in such society, It was in such circumstances, when it was held by a Full bench of Supreme Court of India in the case of AUDH BEHARI SINGH that the custom of pre-emption exists in the parts of India and particularly in Benaras which b the sacred place of Hindus in India. It b not shown by the defendants that how a law of Premption affects the personal law of defendants No. 1 to 4. The law of pre-emption imposes a limit at ion/creates a prohibition upon the owner of an immovable property/garden/house to the extent that it restricts the owners unfettered rights of sale and compels him to sell the property to his co-sharer or adjacent neighbour as the case may be. In no manner such restriction or prohibition interferes in the religious beliefs of the said defendants. It b a right in rem since I extinguishes upon death of a Shafi but exbts in case of death of the purchase (See Hadaya Book XXXVIH Chapter IV and the case of MOHAM ISMAIL v. ABDUL RASHID AND OTHERS AIR 1956 All. (F.B.)1). To conclude, it will be suffice to observe that the law of pre- emption is equally applicable to Zimmis/non-Muslims in Pakistan subject to the rule laid down by a Division Bench of this Court in the case of ALLAH BUX v. JANOO AND OTHERS (PLD 1962 kar. 317) in regard with the Shia Sect.
16. The third objection of Mr. Abbasi is that the plaintiff does not qualify in any of the categories of pre-emptor. There are three classes of persons who are entitled to claim pre-emption. All the Muslim Scholars and Faqirs are unanimous on these classes of persons which are as follows:
(1) Shafl-i-Sharik who is a co-sharer in the property.
(2) Shafi-i-Khalit a participator in immunities and appendages.
(3) Shafi-i-Jar owners of adjoining immovable properties.
The plaintiff is pre-emptings the sale of the suit property being Shafi-i-Khalit as well as being Shafi-i-Jar which fact is also apparent in the contents of the plaint. Now on the plot adjoining to the suit property which is partly owner by the plaintiff, there is a multi-store yed building standing by the name of "Al-Noor Chambers". It is a non-residential building but the plaintiff has shown the same as his residential house which fact is belied by the Annexure-B to the plaint which is the general power of attorney wherein the address of the plaintiff is given as F-14, Block-F, North Nazimabad, Karachi. This fact is further proved from the address of the proposed legal heirs of plaintiff filed with the plaint which is the same as of general power of attorney. In view of these facts, the claim of the plaintiff that he is neighbour/resident of adjoining plot is very much doubtful.
He does not qualify under the third category of Shafi-i-Jar. This proposition is equally applicable to the second category of Shafi-i-Khalit where the burden is upon the plaintiff to prove that he is enjoying common immunities and appendages.
17. It was held by a Division Bench of this Court in the case of SYED HAJI IMAM BUKSH AND OTHERS v.
MIR MUHAMMAD KHAN HAJI ALI MURAD (AIR 1946 Sindh 55) that the right of Shafi extends no further then an the right of easement and that a plaintiff cannot claim any incl right on the property belonging to the Government. The relevant portion of the said reported case is as follows: "It is dear, then, that where a person has a right of way or flow of water over the property sold, be must i.e regarded as a partner in the appendages of the said property, and to have the right of pre-emption in regard to it. But it can in no way be said that the plaintiffs, because they on land which draws water from a Government watercourse, the bed of the watercourse being, according to the evidence, the property of Government, can in any way claim the right to preemption, as sharers in an appendage with the land of the defendants and their neighbours who draw water for their lands from the same Government watercourse, and over whose lands it cannot be said that the plaintiffs in any way exercise the rights of owners of a dominant tenement, nor, indeed, are they even the owners of the servient tenement."
18. It is an admitted position that there is a lane, namely, Magazine Lane in between the property of Shafi (plaintiff) and the land upon which pre-emption has been claimed. This lane belongs to the Government and is enjoyed by all. This fact disentitles the plaintiff to claim himself as adjacent neighbour of the property in suit which is one of the important qualification to claim Shaffa.
19. The plaintiff is seeking prohibitory injunction against the defendants on the ground that he has a right to claim pre-emption on the sale of the suit property. The superior Courts of Pakistan and India have held this right as feeble and a weak right and therefore it has to be strictly applied. A plaintiff who comes to Court to seek enforcement of his right to pre-empt a sale must prove that he has strictly complied with all the requirements of law (for reference see MT. GIRRAJ KUNWAR v.
IRFAN AII (AIR 1952 All . 686), BADRI DATT & v OTHERS v. SHRIKISHAN & OTHERS (AIR 1954 All. 94), PYARE MOHAN v. REMESHWAR (AIR 1980 Raj. 116) and ABDUR RASHEED CHAUDHARY & OTHERS v. MD. IDRIS CHAUDHRY & OTHERS (AIR 1946 Cal. 135). It was also held by the Federal Shariat Court of Pakistan in the case of MUHAMMAD ISMAIL QURESHI AND OTHERS v. GOVERNMENT OF THE PUNJAB AND OTHERS (PLD 1991 PSC 80) that: "... It may, however, be stated that the right of pre-emption has been considered to be a weak right in property and, therefore, the jurists have been very anxious in putting restrictions on exercise of the said right, which are based on the traditions of the Holy Prophet (P.B.U.H.)."
20. Tentatively, the legal and factual position, as it appears from the above discussion is that the plaintiff being co-owner up to the extent of 10% has pre-emoted the sale of the suit property for himself and no other co-owners have come forward to claim their rights of pre-emption and that the period of lease o plaintiffs property already expired in the year 1986 and has not yet been renewed. Thus prima facie the plaintiff if not a full, complete and absolute owner which in one of the requirements for successfully claiming right of pre-emption. The qualification of plaintiff in the category of Shafi-i-Khalit or in the category o Shafi-i-Jar is also highly doubtful. This being the situation, the three important factors for grant of interim injunction i.e. Prima facie case, balance of conveniens and irreparable loss or injury do not reflect in favour of plaintiff for grant o interim injunction Accordingly, this application is hereby dismissed. These are th detail reasons for the short order passed by this Court on 22.6.1995.