By this First Civil Appeal, appellant Udhamdas has challenged the judgment and decree passed by the learned 1st Senior Civil Judge, Larkana, whereby right of pre-emption claimed by respondent Dr. Muhammad Sharif against the purchaser appellant Udhamdas has been upheld in respect of a shop situated at Bakrani Road in the Town of Larkana. Appellant Udhamdas has challenged the judgment and decree on various grounds, but mainly the contention of the appellant is that the demands required by law were never made by the respondent and that the demands if proved to have been made were not made immediately, without least practicable delay, and, therefore, were not to be given due weight as the right of pre-emption under the Muhammadan Law is to be considered as a very feeble right, and the delayed demands are no demands in eyes of law.
2. Before reverting to discussion on the judgment of the Trial Court, I would like to give the background of the case in nutshell.
3. Dr. Muhammad Sharif is practising medicine in the Town of Larkana in a shop bearing C.S. 976/5 and 976/65/6. Dr. Muhammad Sharif also claims title to this shop to the extent of 50 paisa share.
Udhamdas is also known as a doctor and practising medicine but is not a registered doctor.
Udhamdas is occupying the adjacent shop bearing No.976/65/7. The intervenion wall of these two shops is common, and thus Dr. Muhammad Sharif and Dr. Udhamdas are neighbourer.
4. Dr. Udhamdas purchased the shop bearing No.976/65/7 from M/s. Sher Muhammad and Muhammad Saleh, by a registered deed dated 14-1-1982. Dr. Muhammad Sharif considering that he had first right of purchase under the law of pre-emption, made required Talabs i.e. Talab-e- Mawasibat and Talab-e---Ishhad, and thereafter when the respondent Udhamdas did not re-sell the disputed shop to him, filed the present suit for recognizing his right of pre--emption, and requested the Court to get the disputed shop re-sold to him.
5. Udhamdas in his written statement denied that Dr. Muhammad Sharif had any right of pre- emption on the disputed shop and that if he had any such right, be had waived the same and was not entitled for the decree from the Court. He further categorically stated in his written statement that Dr. Muhammad Sharif had knowledge of the purchase of the shop by the defendant/respondent much prior to the date on which he allegedly made the demands. It was said that the disputed shop was at first offered to Dr. Sharif for sale by the owners. He had declined to purchase the same. Thereafter the owners sold the same to defendant/appellant Udhamdas, of which Dr. Muhammad Sharif had the prior knowledge. The defendant further stated in his written statement that assertion of Dr. Muhammad Sharif that he learnt of the sale on 15-1-1982 and immediately made the Talabs on that day, was 'a false story. Defendant Udhamdas also claimed that since both the parties were doing medical practice in adjoining shops, Dr. Muhammad Sharif had filed the suit to see that defendant is ousted from the adjoining shop due to professional jealousy.
6. The learned trial Court framed the following issues:---
(1) Whether the plaintiff is entitled to pre-empt the shop in suit from the defendant No.3?
(2) Whether the plaintiff has made legal demands as alleged in the plaint?
(3) Whether the cause of action has arisen to the plaintiff?
(4) Whether the suit is barred by Muhammadan Law and is not maintainable?
(5) What should the decree be?
7. The parties led their evidence. From the plaintiff side Dr. Muhammad Sharif, Haji Hussain Bux and Muhammad Murad were examined, while from the defendant side statement of Udhamdas only was recorded. The trial Court came to the conclusion that Dr. Muhammad Sharif had the right of pre-emption and that he had made valid Talabs, and therefore, he was found entitled for the decree of pre-emption.
8. Learned counsel for the appellant as well as respondent have argued in detail in this appeal and with their assistance, the evidence led in the lower Court has also been read.
9. The first and foremost of the arguments of the learned counsel for the appellant is that pre- emption under the Muhammadan Law is a feeble right, therefore, the superior Courts have laid down stress on the point that the evidence proving the Talabs should be fool proof and leaving no doubt of any kind.
10. The above argument is no doubt based on the legal principles and is not Controverted by the learned counsel for the respondent.
11. The case of Haji Abdul Ghafoor v. JaW Din and 8 others (PLD 1973 Baghdad-ul-Jadid 15), has laid down the principle that the law of pre-emption constitutes a drawback on principles of freedom of contract and security of title, therefore, provisions of such law have to be construed and applied strictly.
12. In another case, Mumtaz Hussain and another v. Muhammad Achar and 2 others (1991 CLC 209) late Qaiser Ahmed Hamidi Justice, had held that in order to invoke the provisions of Muslim Law while claiming pre-emption, the formalities prescribed by law must be strictly complied with and the doubt, if any, in respect of "Talabs" is to be resolved in favour of the vendee.
13. Similarly in other numerous cases it has been repeatedly held that Talab-e-Mawasibat is the demand of jumping, which means that the claimant should immediately jump out and make the demand when the news is broken to him about the purchase of property, in which he claims pre- emption. Thus the delay in making the demand of jumping i.e. First demand Talab-e-Mawasibat should never be delayed. Second demand viz. Talab-e-Ishhad is also to follow the first demand without "least practicable delay", as has been held in the above-cited cases in addition to the, cases of:---
(1) Muhammad Ashraf v. Muhammad Tahir and 6 others (1990 M LD 2399) and (2) Smt. Sundri Bai v.
Ghulam Hussain (1982 CLC 2441).
14. In light of the above decisions and in light of the provisions of Muhammadan Law in respect of pre-emption, I revert to examine the fact of the demands made by Dr. Muhammad Sharif from Udhamdas, and the evidence led on these points.
15. Firstly the reading of the plaint shows that the plaintiff Dr. Muhammad Sharif learnt of the sale in dispute on 15-1-1982 and, therefore, immediately on that date Dr. Muhammad Sharif asserted the right of pre-emption on the purchase of the shop in dispute and declared his intention to purchase his shop. The pleadings further go to show that on the same day immediately thereafter Dr. Muhammad Sharif secured presence of two witnesses and approached the respondent Udhamdas in presence of the witnesses and made the second demand from him. These pleadings very clearly show that Dr. Muhammad Sharif acquired the knowledge of the purchase of the disputed shop on 15-1-1982 and on the same day he made the two required Talabs in presence of the witnesses.
16. Surprisingly, as against these pleadings, Doctor Muhammad Sharif in his evidence before the Court stated that he acquired the knowledge of the purchase of the shop in dispute on 14-1-1982 at 10-00 a.m. He stated that at that moment he made the first Talab i.e. Talab-e-Mawasibat. The plaintiff Dr. Muhammad Sharif further stated in his deposition that on the next day he took two witnesses with himself and approached the respondent Udhamdas and made the second Talab.
This most vital discrepancy in the pleadings and the evidence has not been taken notice of by the lower Court, and the lower Court has believed the statement of Dr. Muhammad Sharif on the point of Talabs holding that the Talabs were made immediately and simultaneously. Without any cogent explanation, the learned trial Court brushed aside the objection of the learned counsel of the defendant who had pointed out this glaring inconsistency to the trial Court in his cross- examination as well as in the arguments, by holding that the plaintiff due to lapse of time had mistaken the date, on which he acquired the knowledge of sale, and he made the Talabs. This conjecture on part of the lower Court appears very feeble and has no legs to stand upon. If it is believed that the date given in the pleadings viz. 15-1-1982 was not correct, and should be read as 14-1-1982, which is the date given by the plaintiff in his deposition, the statement of plaintiff falls flat as on 14-1-1982 at 10-00 a.m. The sale had not yet taken place. This fact stands proved from having a look at the registered deed itself which shows that it was presented for .Registration before the Sub-Registrar on 14-1-1982 between 12-00 noon and 1-00 p.m. If the reverse is taken to be correct i.e. Deposition of the plaintiff which gives the date of knowledge as 14-1-1982 and if it is believed that due to mistake plaintiff instead of 15-1-1982, had given the date to be 14-1-1982, the further portion of his deposition is irreconcilable with the explanation of the advocate, because the plaintiff goes on deposing in evidence that he procured the witnesses on the next day of his learning of the sale and making of the first demand. Therefore, the second Talab is hit by delay, as no law permitted the plaintiff to wait for next day to make the second Talab; specially when no reason for waiting for second day to make the second Talab has been given by the plaintiff in his evidence.
17. Thus I am clear in my mind that the plaintiff has miserably failed to make out a case proving that he had made the required Talabs within the four corners of law. Rather, the glaring contradiction in the evidence of plaintiff on the vital point of Talabs, shows that no Talabs were made at all. Thus having come to the conclusion that the two required Talabs have not been proved by the plaintiff by his evidence, I do not find that the respondent has been correctly held to be entitled to the "feeble right" of pre-emption against the appellant. I consequently hold that the plaintiff/respondent cannot succeed in getting the decree for pre-emption in view of what I have observed above.
18. Consequently I feel there is no need to discuss the other points raised by the counsel for the appellant. On these circumstances, the judgment and decree passed against the appellant deserves to be set aside. The appeal is, therefore, allowed with costs, and the judgment and decree passed by learned 1st Senior Civil Judge, Larkana dated 20-12-1982 and 5-1-1983 are hereby set aside.
19. This appeal was allowed on 3-9-1996 by a short order and these are the reasons for the same.