IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Revision No. S- 49 OF 2012
Applicant : Mumtaz Ali, through Mr. Ghulam Dastagir
A. Shahani, Advocate
Respondent No.1: Azhar Ali, through Mr. Imdad Ali Mashori,
Advocate.
Respondents 2 to 19: Nemo
Dates of hearing: 28.01.2019, 31.01.2019 and 07.02.2019.
O R D E R
Adnan Iqbal Chaudhry, J.— By this Revision, the Applicant has called in question the judgment and decree dated 20.04.2012 passed by the V-Additional District Judge, Larkana, in Civil Appeal No. 87/2010 whereby the appeal of the Respondent No.1 was allowed and his suit for pre-emption was decreed against the Applicant.
2. The property that was pre-empted by the Respondent No.1 (pre-emptor) was a commercial shop bearing C.S. No.1847 admeasuring 32-3 square yards situated in Ward ‘C’, Pakistani Chowk, Bunder Road, Larkana (‘the Suit Shop’), which had been sold by the Respondents 2 to 19 (the sellers) to the Applicant (purchaser) by a registered sale deed dated 26.12.2006.
3. The suit (Old F.C. Suit No. 144/2007, new F.C. Suit No. 66/2009) was brought by the Respondent No.1 as shafi-i-jar i.e., on the ground of vicinage as owner of the adjoining shop bearing C.S. No.1845/1 (‘the Adjoining Shop’). The Respondent No.1 also claimed to have recently purchased another property being C.S. No. 1846/1-2 which was behind the Suit Shop, but that other property, at the time the suit was filed, was held by the Respondent No.1 on a sale agreement and was not the basis on which he had pre-empted the Suit Shop.
4. Per the plaint of the Suit, in January 2007, when the Respondent No.1 was sitting at his Adjoining Shop, he saw the Applicant taking possession of the Suit Shop; that he immediately enquired from the Applicant whether he had purchased the Suit Shop, and when the Applicant replied in the affirmative, the Respondent No.1 claimed to have invoked his right of pre-emption by making the first demand, talab-e-mowasibat. It was averred by the Respondent No.1 that on the same day he took two witnesses to the Suit Shop and made the second demand, talab-e-ishhad, but that the Applicant requested for time to reply. It was averred that initially the Applicant kept the Respondent No.1 on false hopes but when the Applicant eventually refused, the Respondent No.1 filed the Suit.
5. In his written statement the Applicant (purchaser) stated that he had taken possession of the Suit Shop on the date of the sale deed i.e. on 26-12-2006 of which the Respondent No.1 had knowledge, and it was denied that the Respondent No.1 had ever made any of the demands of talab-i-mowasibat or talab-i-ishhad. The Applicant claimed that he was a Shia Muslim and that the right of pre-emption on the ground of vicinage (by owner of adjoining property) could not be invoked against a Shia Muslim.
The Respondents 2 to 19, the sellers of the Suit Shop to the Applicant, do not appear to have entered appearance throughout the proceedings.
6. After recording evidence, the trial court dismissed the Suit vide judgment and decree dated 26.10.2010. The dismissal was appealed by the Respondent No.1 before the V-Additional District Judge, Larkana, vide Civil Appeal No.87/2010. The appeal was initially allowed vide judgment dated 25.02.2011 and the case was remanded to the trial court for decision afresh. However, the Respondent No.1 (plaintiff) was aggrieved of the remand and therefore he preferred Civil Revision No. 56/2011 before this Court which was allowed by consent of the parties (vide order dated 16-02-2012) by directing the Appellate Court to decide Civil Appeal No. 87/2010 afresh and on the merits. In the second round, Civil Appeal No. 87/2010 was again allowed and this time the Appellate Court decreed the Suit for pre-emption in favor of the Respondent No.1 vide the impugned judgment and decree; hence this Revision by the Applicant (defendant No.1/purchaser).
7. Mr. Ghulam Dastagir A. Shahani, learned counsel for the Applicant contended that the Applicant was a Shia Muslim and per clause 249(2) of Muhammadan Law by Mulla, the right of pre-emption on the ground of vicinage was not available against a Shia Muslim. He submitted that the property adjoining the Suit Shop was Shop No.1846/1-2, not Shop No.1845/1; that Shop No.1846/1-2 was held by the Respondent No.1 on a sale agreement at the time the Suit was filed; that since the title of Shop No.1846/1-2 had not been transferred to the Respondent No.1, a suit for pre-emption on that basis was not maintainable. He submitted that though the alleged demands/talabs for pre-emption were never made by the Respondent No.1, in any case the evidence lead by him as to the making of such demands/talabs had not even been perused by the Appellate Court in passing the impugned judgment. He submitted that the evidence of the alleged witnesses to the alleged talab-i-ishhad (PW-2 and PW-3) was unreliable as the plaint had never named them as witnesses; that none of the persons from the neighboring shops were associated as witnesses by the Respondent No.1; and that PW-2 and PW-3 had been brought in by the Respondent No.1 to give false evidence. Thus, Mr. Shahani submitted that the impugned judgment suffered from a mis-reading and a non-reading of the evidence.
8. On the other hand, Mr. Imdad Ali Mashori, learned counsel for the Respondent No.1 contended that the Applicant’s claim that he was a Shia Muslim was belied by his cross-examination; that in any case, in view of clause 248 of Muhammadan Law by Mulla, the sect of the purchaser was not relevant, and therefore nothing turned on the argument that the Applicant was a Shia Muslim. In support of such submission, Mr. Mashori relied on Allah Bux v. Jano (PLD 1962 W.P. Kar 317). Mr. Mashori submitted that the plaint clearly showed that the Suit had been brought on the basis of Shop No.1845/1, and not on the basis of Shop No.1846/1-2; that the mention of the latter shop had been made only to strengthen the case; that Exhibit 90-A (extract from the record of rights), and Exhibit 90-C (sketch of the Suit Shop and adjoining properties) was sufficient evidence to show that the Adjoining Shop (Shop No.1845/1) was the registered property of the Respondent No.1. He submitted that there was no reason to doubt the evidence of the witnesses to the talab-i-ishhad (PW-2 and PW-3) who remained unshaken on cross-examination.
9. The fact that Shop No.1845/1 was the property of the Respondent No.1 that was adjoining the Suit Shop stood proved by Exhibit 90-A (extract from the record of rights), and Exhibit 90-C (sketch of the Suit Shop and adjoining properties), which evidence remained unrebutted. Therefore, on that score the impugned judgment does not call for any interference.
10. Both learned counsel had in their respective turn read and re-read the evidence and argued at length to prove/disprove respectively the sect of the Applicant. The trial court had held that the Applicant (purchaser) had proved that he was a Shia Muslim and that the right of pre-emption could not be invoked against a Shia purchaser. Regards the Appellate Court, though it was not convinced that the Applicant was a Shia Muslim, it had held that in any case, in view of clause 248(4) of Muhammadan Law by Mulla, and the Division Bench judgment of this Court in Allah Bux v. Jano (PLD 1962 W.P. Karachi 317) it was settled that the question which personal law would apply to pre-emption, Shia or Sunni, is to be determined on the sect of the seller and the pre-emptor, and the sect of the purchaser (Applicant) was immaterial. But Mr. Shahani, learned counsel for the Applicant contended that clause 249 of Muhammadan Law by Mulla was independent of clause 248, and as such it showed that where any of the parties to the transaction were Shia, then pre-emption at least on the ground of vicinage was not available.
11. Clauses 248 and 249 of Muhammadan Law by Mulla read as under:
“248. Sect-law governing pre-emption.-(1) If both the vendor and pre-emptor are Sunnis, the right of pre-emption is to be determined according to the Sunni law, and if both the parties are Shias, the right of pre-emption is governed by the Shia law.
(2) If the vendor is a Sunni, and the pre-emptor is a Shia, the right of pre-emption is, according to the Allahabad and Hyderabad High Courts, governed by the Shia law, on the principle of reciprocity explained in the notes to sec. 234 above.
(3) If the vendor is a Shia, and the pre-emptor is a Sunni, then according to the Allahabad and Hyderabad High Courts, the right of pre-emption is governed by the Shia law; but according to the Calcutta High Court, it is governed by the Sunni law.
(4) The personal law of the buyer is immaterial in these cases.
249. Points of difference between Sunni and Shia law of pre-emption.- (1) According to the Shia law, no right of pre-emption exists in the case of property owned by more than two co-shares.
(2) The Shia law does not recognize the right of pre-emption on the ground of vicinage, or on the ground of “participation in the appendages.”
In Allah Bux v. Jano (PLD 1962 W.P. Karachi 317) it was held that it is not the sect-law of the vendee/purchaser which applies to cases of pre-emption because the right of pre-emption is not a personal right, and being in the nature of a limitation on the power of the vendor, it is the vendor’s sect-law or that of the pre-emptor which would apply. However, in the facts of that case, since the vendor professed the Shia faith, the transaction was governed by Shia law, and therefore it was held that pre-emption could not be decreed on the ground of vicinage, which ground in particular was not available under Shia law.
12. Clauses 248 of Muhammadan Law by Mulla and the Division Bench judgment of this Court in Allah Bux v. Jano (PLD 1962 W.P. Karachi 317) are clear authorities to show that the sect of the purchaser does not figure in determining which sect-law is applicable to the transaction pre-empted; that it is only the sect of the seller and the pre-emptor that are relevant to such determination; and consequently, clause 249 of Muhammadan law by Mulla will only come into play where it is determined under clause 248 that the pre-empted transaction was governed by Shia law. In other words, clause 249 is not independent of clause 248. It was not disputed by the Applicant that both the seller (Respondents 2 to 19) and the pre-emptor (the Respondent No.1) were Sunni Muslims, and since the sect of the purchaser (the Applicant) was immaterial, even if he was a Shia Muslim, the transaction being pre-empted was governed by Sunni Law and consequently clause 249 of Muhammadan Law by Mulla was not attracted.
13. The question central to the case was whether the Respondent No.1 had been able to prove with cogent evidence that he had made the talab-i-mowasibat (the first demand of preemption) and the talab-i-ishaad (the second demand). The trial court had held that in circumstances where the witnesses to the talab-i-ishhad i.e., PW-2 and PW-3 were not from the vicinity and their names had not been mentioned in the plaint as witnesses, and where the evidence was that there were other persons available in the nearby shops who the Respondent No.1 had not associated as witnesses to the talabs, the Respondent No.1 had failed to prove that he had made the requisite talabs. On the other hand, the Appellate Court was of the view that the omission by the Respondent No.1 to mention in the plaint the names of PW-2 and PW-3 as witnesses to the talab-i-ishhad was of no consequence when he had pleaded that the said talab had been made in the presence of two witnesses. But that is where the reasoning of the Appellate Court stopped, as it did not go on to appraise and weigh the evidence in respect of both the talabs. There is no discussion on what that evidence was and when, where and how the requisite talabs were made by the Respondent No.1. Therefore the most crucial aspect of the matter remained unexamined by the Appellate Court in passing the impugned judgment and decree.
14. Though in the plaint, it was stated by the Respondent No.1 that he made the talab-i-mowasibat (the first demand) only to the Applicant, in his examination-in-chief he stated that when he had went to the Suit Shop to make the talab-i-mowasibat, both the Applicant and the Respondent No.3 (one of the sellers) were present and he made the talab-i-mowasibat to both of them. On cross-examination, he stated that at the time he made the talab-i-mowasibat, apart from the Applicant and the Respondent No.3, a third person was also present at the Suit Shop who was a tenant. But neither the Respondent No.3 nor that third person were ever produced or called by the Respondent No.1 as witnesses to corroborate the making of the talab-i-mowasibat. In circumstances were the Applicant had denied that any of the talabs had ever been made, and it was being alleged by the Respondent No.1 that there were other persons who had witnessed the talab-i-mowasibat, then his failure to produce or call such persons as witnesses can only lead to an adverse presumption against him in terms of illustration (g) to Article 129 of the Qanoon-e-Shahadat Order, 1984.
15. As regards the talab-i-ishhad (the second demand), it was the case of the Respondent No.1 that such was made to the Applicant at the Suit Shop in the presence of Sajjad Husain (PW-2) and Sirajuddin (PW-3). Mr. Shahani, learned counsel for the Applicant had vehemently argued that the said witnesses (PW-2 and PW-3) were never named in the plaint and had been introduced afterwards at the time of filing the Suit. Though it is correct that PW-2 and PW-3 had not been named in the plaint as witnesses to the talab-i-ishhad, it has been held by a larger Bench of the Honourable Supreme Court of Pakistan in the case of Haji Noor Muhammad v. Abdul Ghani (2000 SCMR 329) that since the law does not require pleadings to contain a gist of all the facts and names of witnesses of the plaintiff, a pre-emptor/plaintiff cannot be non-suited merely on the ground that details of time and place of talabs, names of witnesses had not been specifically mentioned in the plaint when the plaintiff has specifically pleaded in the plaint that he had made the requisite talabs[1].
16. The oral evidence of the Respondent No.1 and his witnesses was that Sajjad (PW-2) had a shop at Ratodero and he had business dealings with the Respondent No.1 for the last 20 years. Sajjad stated that he came from Ratodero to Larkana to the shop of the Respondent No.1 around 4:00 p.m. to make a purchase when he was asked by the Respondent No.1 to become his witness to the talab-i-ishhad. As regards Sirajuddin (PW-3), the Respondent No.1 had gone himself to fetch Sirajuddin who had his shop at Shahi Bazar Larkana. Sirajuddin then came to the shop of the Respondent No.1 between 5:45 p.m. and 6:15 p.m. and thereafter all three had gone to the Suit Shop for the talab-i-ishhad. At the same time it was admitted by the Respondent No.1 that :
“It is a fact that the owner of adjacent shops and their servants, so also people of different casts were available at that time near the suit shop. It is a fact that I had not asked to any owner or servant of shops which were situated near the suit shop to go with me towards defendant No.1 for making talab.”
On cross-examination, both Sajjad (PW-2) and Sirajuddin (PW-3) had also acknowledged that the Respondent No.1 had not requested any of the neighboring shop keepers to accompany him to witness the talab-i-ishhad. While Sajjad stated that only the Applicant was present at the Said Shop at the time, Sirajuddin stated that one or two other persons were also present at the time.
17. The evidence shows that PW-2 and PW-3 were persons who did not belong to the vicinity and were friends with the Respondent No.1. Though it was only natural for the Respondent No.1 to have picked those persons to act as witnesses to the talab-i-ishhad who were known to him and who were willing to act as his witnesses, that also becomes a reason to approach the evidence of the said witnesses with caution in circumstances where the Respondent No.1 admitted that there were other persons readily available in the vicinity who could have been immediately approached to act as witnesses, but were not, and instead a conscious effort was made by the Respondent No.1 to align and pick witnesses from outside the vicinity.
18. It is settled law that the right of pre-emption being a feeble right, the pre-emptor is to be put to strict proof as to the making and the observance of the requisite talabs. In the case at hand, and as would be seen from the discussion in para 14 above, the oral evidence of the Respondent No.1 as to the making of the talab-i-mowasibat was not only contradictory, but was also not cogent proof of the making of the said talab. In the case of Malik Nazir Ahmed v. Muhammad Yar (2004 SCMR 1377) it has been held that if the making of the first demand, talab-i-mowasibat, is not proved by cogent evidence, then the subsequent demand of talab-i-ishhad becomes inefficacious. Nonetheless, and as discussed in para 17 above, the oral evidence of the Respondent No.1, PW-2 and PW-3 as to the making of the talab-i-ishhad was also not convincing, and in any case was not sufficient in itself to maintain a decree of pre-emption. In other words, the impugned judgment is a result of mis-reading and non-reading of evidence that requires intervention. Consequently, this Revision succeeds. The impugned judgment and decree dated 20.04.2012 passed by V-Additional District Judge, Larkana in Civil Appeal No. 87/2010 are set aside and the said appeal is dismissed.
19. While parting with this order I note here that the impugned judgment does not state whether the pre-emptor had deposited the purchase-money in court, nor does the impugned decree specify and direct payment of the purchase-money as required by sub-rule (1) of Rule 14 of Order XX CPC. However, since I have set-aside the impugned judgment and decree as above, there is no point in discussing the matter of the deposit of the purchase-money.
Dated: 22-03-2019
[1] Note that Haji Noor Muhammad v. Abdul Ghani (2000 SCMR 329) was a case governed by the Punjab Pre-emption Act, 1991, section 13 whereof requires that before filing a suit for pre-emption the pre-emptor shall within two weeks from the date of knowledge make talab-i-ishhad by sending a notice in writing to the vendee attested by two witnesses confirming his intention to exercise the right of pre-emption. In the Province of Sindh, the right of pre-emption is not governed by any statute, but it is applied on the ground of justice, equity and good conscience. In that regard, in addition to the case of Allah Bux v. Jano (PLD 1962 W.P. Karachi 317), also see the case of Iftikharuddin v. Jamshed K. A. Marker (PLD 1995 Kar 608).