ZIA PERWEZ, J.--- The appellants in this First Appeal have assailed the judgment and decree dated 28.7.1997 and 6.8.1997, respectively, passed by the learned Senior Civil judge, Thatta, whereby the suit filed by the present appellants for pre-emption and permanent injunction was dismissed with costs.
2. The facts of the case are that the appellants own and possess lands bearing Survey Nos. 494, 495, 496, 497, 119 to 132, 481, 482, 493 and U.A. Nos. 93/A and 83/C, adjoining the suit lands bearing Survey Nos. 456 to 472 and 476 to 479, admeasuring 68.30 acres in Deh Kheersar Utterwari, Taluka Keeti Bandar. The appellant's. Claim that their lands and the suit lands are settled on the same water course, hence they have right of pre-emption being Shafi Khalil as, well as Shafi Jar. On 6.2.1993, on coming to know about the sale transaction of the suit lands between the respondent No. 1 and respondents 2 to 6, the appellants immediately made Talb-e-Muwathibat and showed their willingness for purchase of the suit lands at market price in presence of witnesses, namely, Soomar, Abbas, Usman and Muhammad Suleman Baloch and, on the next day, i.e. 7.2.1993, on the suit lands, made Talb-e-Ishhad in the presence of the same witnesses. It is further pleaded by the appellants that the sale price of the suit land, shown in Village Form VII, is exorbitant and the suit lands are in cultivating possession of other persons. The appellants have, therefore, prayer to decree the suit.
3. The respondents in their written statement denied the averments made in the plaint and contended that the suit. Is not maintainable being time-barred and undervalued. They submitted that prior to this suit, Muhammad Ismail, father of appellants Nos. 1 and 2 filed a suit, being Suit No. 35 of 1993, through his attorney and brother, appellant No. 3, for specific performance and injunction but expecting the case to be dismissed, the appellants filed this second suit on frivolous grounds.
4. On the basis of the pleadings of the parties, the following issues were framed by the learned Trial Court:- "(1) Whether the suit is not maintainable and the plaintiff has no cause of action?
(2) Whether suit is time-barred?
(3) Whether the suit is under-valued?
(4) Whether plaintiff made Talab Mowasibat then and there after coming to know about the sale transaction and made Talab-i-Ishhad subsequently, according to law?
(5) Whether plaintiff being Shafi-e-Khalit and Shan Jar of the suit land have superior right of pre- emption?
(6) Whether the sale price is exorbitant and has been made with mala fide intention? (7) Whether the plaintiff is entitled for relief claimed?
(8) What should the decree be?
5. In support of these issues, plaintiff No. 3 Muhammad Yousuf, examined himself as Exhibit 83. He produced original Village Form VI, dated 17.3.1971 and 6.11.1971 in the name of the plaintiffs Qadir Bux and Amir Bux as Exhibits 101 and 102 respectively, statements of PW-2 and PW-3, Ghulam Abbas and Usman as Exhibits 104 and 105 respectively.
6. Respondent No. 1 examined himself as.Exhibit 116 and then respondents side was closed.
7. Mr. Muhammad Saleem, learned counsel for the appellants, while arguing the matter, has not disputed Issues Nos. 2 and 5. He challenged the findings of the learned Trial Court on the findings on Issue No. 3. He contended that his issue should have been dealt with at preliminary stage and in case the suit was under-valued, the appellants should have been given 15 days time to pay the deficit Court-fee, which the learned Trial Court has not done in this case.
8. He has further contended that the learned Trial Court has not considered the evidence adduced by the appellants/plaintiffs in support of their case, the appellants are the owners of lands adjoining to the suit lands and their lands are settled on the same water course, hence the plaintiffs have right or pre-emption as Shafi-i-Khalit and Shafi Jar and they have made Talb-e- Muwasabat on 6.2.1993 which was followed by Talb-e-Ishhad on 7.2.1993, in accordance with the Mohammedan Law, in presence of two witnesses, namely, Ghulam Abbas, PW-2, Exh.105, and Usman, PW-3, Exh.106. In this behalf he has referred to the examination-inchief of the plaintiff No. 3 in which he has stated that "I came to know and was informed by the peon of Tapedar that Choudhri Naimat and heirs of Choudhari Salamat A.I have sold out the suit land to respondent No. 1, Syed Nawaz All Shah. At that time I was in the office of Tapdar at Baghan. At that time Muhammad Suleman son of Ghulam Asghar, by case Perozani, Abbas son of Siddique Sanghar, Usman son of Khalique Dino Daras and Soomar son of Gui Muhammad Baloch were present. At that time, on coming to know about the sale of the said land. 1, then and there, declared my intention to purchase the suit land as the suit land was situated near our land ands is surrounded by our lands. On the next day I alongwith above four witnesses went to the suit land where my nephew Qadir Bux and Amir Bux who are plaintiffs Nos. 1 and 2 also came at the suit land."
9 The learned counsel has further argued that the Trial Court has wrongly come to the conclusion that the plaintiffs have suppressed the material fact of filing of earlier suit No 45/1993 as the said suit was between different parties and for specific performance which is an entirely different subject-matter and that suit has nothing to do with the present case. He has further contended that as the said Suit No. 45/1993 was filed by one Muhammad Ismail who was father of appellants Nos. 1 and 2 and brother of plaintiff No. 3 and that he is not a party to this suit even the parties are different. Moreover, that earlier suit was for specific performance and filing of a previous suit does not preclude and plaintiff from filing a fresh suit on a different cause of action. He has further contended that the learned Trial Court has not considered the evidence. He has submitted that the impugned judgment and decree is liable to be set aside.
However, the learned counsel could not point out specifically as to what evidence was not considered by the Trial Court.
10. In support of his contentions, the learned counsel has placed reliance on Hussain Bux v. Mir Muhammad and others (PLD 1985 Kar. 161), Budho v. Karim Bux and others (1985 CLC 1037) and Nazar Hussain Shah and others v. Mst. Khurshid Bibi and others (2002 SCM R 49) + (2002 PLR (SC)
507).
11. Mr. K.B. Bhutto, learned counsel for the respondent No. 1, on the other hand, has supported the impugned judgment and decree. His first contention is that there are three appellants in the suit and only plaintiff No. 3 appeared in witness-box and tried to establish his right of pre-emption by examining two witnesses as stated above. However, plaintiffs Nos. 1 and 2 have not entered their appearance which, according to them, is in violation of Section 235 of Mahomedan Law under which when two or more persons claim right of pre-emption, each one of them should make the demands, unless one of them has also been authorised by the others to do so, and he makes demands on their behalf also and if a suit is brought by several persons claiming right to pre- emption but if out of several such persons, only one person makes the demand on his own behalf, the suit will proceed as regards such person who makes the claim of preemption, but it will be dismissed so far as the persons who have not made the demand. The learned counsel submits that in this case, only plaintiff No. 3 has made the demand so the suit is maintainable so far as plaintiff No. 3 is concerned, but it must be dismissed so far as plaintiffs Nos. 1 and 2 are concerned on this ground. In the present case, in the examination-in-chief as well as in the cross-examination the plaintiff No. 3 has simply used singular pronoun "I" and has referred to Talab made by him only.
Nowhere, he has made demand on behalf of the remaining plaintiffs by using plural pronoun "we" or has disclosed that he has been authorised by the remaining plaintiffs to make demand on their behalf. It is submitted that the plaintiffs Nos. 1 and 2 have not made any demand. They were simply present at the spot.
12.. The second contention of the learned counsel is that the plaintiff No. 3 in his examination-in- chief has not specifically stated that he has made "Talab Mowasibat" and "Talb-e-Ishhad", he has also not said anywhere that while making Talab lshhad reference of Talab Mowasibat was given and the learned Trial Court has rightly come to the conclusion that at the time of making Talab-e- Ishhad, reference to Talab Mowasabit is necessary. He has placed reliance on the cases of -Loung through L.Rs. v. Dur Muhammad and another (PLD ,1987 Kar. 515) and rust. Akbari Begum v. Nadeem Ahmed and others (1993 CLC 353).
13. The learned counsel has further argued that subsequent events are to be considered. He finally prayed that the judgment and decree do not call for any interference by this Court.
14. With regards to claim of the plaintiffs as being Shafii-Khalit and Shafi Jar, it is admitted that they have not produced any map or produced any witness to prove that their lands are situated on the same water course as of the suit lands. Therefore, he has failed to prove his right of preemption as Shafi Khalit. However, the question whether lands owned by the plaintiffs are adjoining to the suit lands, has been considered by the learned Trial Court under issue No. 5 and decided in affirmative.
Therefore, learned counsel did not stress on the same.
15. The contention of the learned counsel that the Talbe-Ishhad has been made properly is not established through evidence or law. Section 235 of the Mohammadan Law by Sir D.F. Mulla, provides as under:- "235. Demand for pre-emption.-- No person is entitled to the right of pre-emption unless:
(1) he has declared his intention to asset the right immediately on receiving information of the sale.
This formality is called talab-i-mowasibat (literally, demand of jumping, that is, immediate demand);
(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talab-i-mowasibat had already been made, and has made a formal demand--
(a) either in the presence of the buyer, or the seller, or on the premises which are the subject- matter of sale, and
(b) in the presence of at least two witnesses. This formality is called Talb-e-Ishhad (demand with invocation of witnesses.
Explanation I ...................................... Explanation II .................................... Explanation Ill ...................................
Explanation IV: When two or more persons claim to pre-empt, each one of them should make the demands, unless one of them has also been authorised by the others to do so, and he makes the demands of their benaff also. If a suit is brought by several persons claiming to pre-empt, and only one of them has made the demand on his own behalf the suit proceed as regards him, but it must be dismissed as to the rest.
16. Thus, sub-section (2) of Section 235 of the Mohammadan Law, quoted above, clearly stipulates that while making the second demand, reference to first demand is to be expressly made. A Tqlb- e-Ishhad without making reference to Talab-e-Mowasibat is not a valid Talb-e-Ishhad. Neither the appellants nor their witnesses have said a single word in their examination-in-chief or cross- examination to the effect that reference to Talab-e-Mowasibat was made during Talb-eIshhad. It has been held in Jadal v. Abdul Majeed (PLD 1978 Kar. 732), as under:-
(1) That the Talab should be made against the seller, if the property sold is still in his possession, or against the purchaser, or upon the property sold;
(2) That the Talab should be made in the presence of not less than 2 witnesses;
(3) That while making Talb-e-Ishhad, reference is required to be made to the Talab-e-Mowasibat, as also pointed out in Muhammad Luqman v. Amir A.I (PLD 1969 Dacca 64).
17. In the above case, in para 11 of the Report, following observations were made: "11. So far as the second occasion on which the Talb-e-Ishhad is said to have been made, through it was made on the very same day on which respondent No. 1 came to know of the sale of the property in question, and two witnesses were taken by him to expressly witness the demand, no reference at that time was made to the Talab-e-Mowasibat earlier made by him in his house. Thus an essential requirement of the Talab-e-Ishhad was not fulfilled in the instant case."
18. It is also admitted that there were three plaintiffs in the suit and only plaintiff No. 3 appeared in the witness-box to prove his right of pre-emption supported by two witnesses, as stated above.
However, plaintiffs Nos. I and 2 did not appear to depose before the Trial Court nor any satisfactory explanation for their non-appearance has been pointed out from the record. This is in violation of section 235 of Mahomedan Law which stipulate that when two or more persons claim right of pre- emption, each one of them should make the demand, unless one of them has also been authorised by the others to do so, and such person has to make a demand on their behalf also and if a suit is brought by several persons claiming right of pre-emption, and only one of them has made the demand on his own, the suit will proceed as regards such person, but it must be dismissed as to the rest. Further, in the present case in the examination-in-chief as well as in cross-examination the appellant, plaintiff No. 3, has simply used the singular pronoun "I" which clearly shows that he has only made demand on his own behalf. If he was also making demand on behalf of other plaintiffs then he should have disclosed his authority as well as specifically made the demand on behalf of other plaintiffs. Plaintiffs/appellants Nos. 1 and 2 have not made any demand, they were only present there.
19. In the case of Ghulam Jilani and others v. Ghulam Muhammad and others (1991 SCM R 2001), leave to appeal was granted to examine whether the decision of the High Court of Sindh. In Hussain. Bux v. Mir Muhammad and others (PLD 1985 Kar. 161) correctly laid down the law as it was contrary to what the High Court of Sindh had itself been holding in its earlier decisions. On the question of Talb-e-Ishhad, the following was laid down by the Hon'ble Supreme Court in paragraph 6 of the Report: "6. As regards the requirements of established Hanafi Law on the 'Sub-Continent, we find that the law has been consistently interpreted in Abid Hussain v. Bashir Ahmad (1890 ILR 20 All. 499), Abbasi Begum v. Afzal Hussain and another (1890 ILR 20 All. 457), Rujiub A.I Chopedar v. Chundi Churn Bhadra and others (1890 ILR 17 Cal. 543) and Nundo Pershad Thakur v. Gopa Thakur (ILR 10 Cal.
1008), as requiring Talab-e-Ishhad to confirm Talab-e-Mowasibat. This requirement finds reproduction in the statutory form now in the NWFP Pre-emption Act, 1987 (Act X of 1987), Section 13(3) thereof providing as. Hereunder:- Where a pre-emptor has made Talab-e-Mowasibat under sub-section (2), he shall soon thereafter as possible but not later than two weeks from the date of notice under Section 34, or knowledge, whichever may be earlier, make Talab-e-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.
20. The appellants and their witnesses have failed to specifically state that the appellants have made Talab-e-Mowasibat and Talab-e-Ishhad. It has been consistently held that Talab-e- Mowasibat is to be made at the earliest possible opportunity and at the time of making Talab-e- lshhad. Reference to Talab-e-Mowasibat is necessary to be made, therefore, judicial restraint has to be exercised in departing from settling law followed for a long period for which there is no justification in the present case. Reliance is placed on the case of Syed Muhammad Munir and another v; Member (Judicial), Board of Revenue, Punjab and others (PLD 1972 SC 346).
21. The next contention of learned counsel for the appellants is that no wrong has been done by the appellants by concealing the fact of filing of a previous suit by father of plaintiffs Nos. 1 and 2 and brother of plaintiff No. 3 through attorney i.e. The plaintiff No. 3 himself, with regard to suit property.
On the face of record it was admitted that Muhammad Ismail, through his attorney, plaintiff No. 3, filed a suit for specific performance of an agreement with regard to the suit lands and on dismissal of their injunction application upto the level of this Court, the appellants filed suit for preemption.
This conduct of the appellants reveals that they have not come to the Court with clean hands. Their only intention seems to be to pressurize the defendants for ulterior motives. Plaintiffs came to know about the sale transaction on 6.2.1993 but they did not file the present suit for preemption immediately. Instead, they instituted a suit for specific performance and waited for its fate. They filed the present suit on. 17.1.1994 after the dismissal of their application under Order XXXIX, Rules 1 and 2, CPC and disclosing a much lesser value than that in the earlier suit which reflects mala fides. All the proceedings of this suit are subsequent proceedings and are not to be taken into consideration.
22. In the case of Nazar Hussain. Shah (supra), the facts were that some land was sole through registered sale-deed by Manzoor Hussain Shah, Maqbool Shah and Ghulam. All and one Riaz Hussain Shah, through L.Rs., filed a suit for preemption on the ground that he was collateral of the vendors and co-sharer in the Khata. The suit was contested on the ground that the plaintiffs were estopped from filing the suit as Riaz Hussain Shah, the predecessor-in-interest of the plaintiffs, was present at the time of attestation' of mutation' and had identified the parties as Lambardar and that earlier he was asked to purchase the land. The learned Judge in Chambers of he Lahore High Court, held that this argument is based on erroneous assumption that mere presence of the pre- emptor at the time of attestation of mutation and even to act as witness in the bargain was sufficient to prove the waiver of right of pre-emption, or would constitute estoppel and that the alleged offer to Riaz Hussain to purchase the land is contradictory in material terms and cannot be accepted. Thus, this case is also distinguishable and is of no help to the appellants.
23. So far as the contention of the learned counsel for the appellants, that the learned Trial Court has not considered the evidence, is concerned, the learned counsel was unable to point out any specific instance where the learned Trial Court has failed to consider any piece of evidence.
Therefore, this contention is not tenable.
24. His contention, that if the suit was undervalued then time was to be allowed by the Court to remedy the deficiency, is concerned, plaintiff No. 3, in his cross-examination stated that "Chaudhry Ahmed Deen agreed to sell that land at Rs. 6000/- per acre in 1986 but subsequently after the death of Ahmed Deen his L.Rs. Demanded enhanced amount at the rate of Rs.10,000/- per acre." So, in 1986, he agreed to purchase the land at Rs.6000/- per acre, it is nothing but mala fide, that in 1994, he is valuing the land at Rs.1000/- per acre. Even if the valuation was corrected, but the suit and the prayer therein was not modified and the prayer in the suit was for a direction to defendant No. 1 to execute the sale-deed of the suit land in favour of the plaintiffs, after receiving the market value at the rate of Rs.1000/- per acre. The learned Trial Court has rightly held that the suit, at the time it was instituted and at the time when the issues were framed, was under-valued. The valuation of the suit land at Rs.1000/- per acre was not a bona fide act but was based on mala fide and was aimed at pressurizing the respondents for their ulterior motives.
25. The upshot of the above discussion is that I find myself in complete agreement with the findings arrived at by the learned Trial Court and no interference with the judgment and decree impugned herein is called for. Accordingly, this appeal is dismissed and the judgment and decree of the Trial Court is maintained with costs in favour of the respondents.