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-Respondents

Second Appeal No. 323 of 1971, decided on 8th April 1978.

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Pre‑emption‑Shafi‑e‑Khalit (partner in immunities and append ages) ‑Pre‑emptor's house and house in dispute originally common houses, entrance of two houses common, water of pre‑emptor's house discharging on house in dispute‑Facts established not only by oral evidence but also by sale deed executed in pre‑emptor's favour -Plaintiff, held, a Shafi‑e‑Kha7t of house in dispute.‑[Pre‑emption].

‑‑ Pre‑ emption‑Talab‑i‑Ishhad (claim by affirmation and taking to witness)‑Requirements of.‑[Pre‑emption].

The essential requirements of Talab‑e‑Ishhad are:

(a) 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;

(b) that the Talab should be made in the presence of not less than 2 witnesses;

(c) that while making Talab‑e‑Ishhad, reference is required to be made to the Talab‑e‑Mawasibat.

Mulla's Principles of Mohomedan Law, 1577 Pakistan Edn., S. 236, and Mohammed Luqman v. Amir Ali P L D 1969 Dacca 64 ref.

‑‑ Pre‑emption‑Talabs‑‑Talab‑i‑Mawasibat (immediate claim) and Talab Ishhad (claim by affirmation and taking to witness)‑Can be performed simultaneously although ordinarily required to be made separately.‑ [Pre‑emption]

Nwtdo Parsad Thakur v. Gopal Thakur I L R 10 Cal. 1008 and Abdul Majid v. Qamruddin A I R 1945 All. 375 ref.

‑ Pre‑emption‑Talab‑i‑Ishhad‑Must be made in presence of not less than two witnesses.‑[Pre‑emption].

‑‑ Pre‑emption‑Talab‑i‑Ishhad though made on very same day on which pre‑emptor came to know of sale of disputed house and two witnesses also taken by pre‑emptor to expressly witness demand yet no reference at such time made to Talab‑i‑Mawasibat earlier made by him‑Essential requirement of Talab‑i‑Ishhad held, not fulfilled and pre‑emptor failed to establish his right of pre‑emption.‑[Pre‑emption].

Maroof Ali ,Khan for Appellant.

N. A. Farooqui for Respondent No. 1.

Remaining Respondents (absent).

Date of hearing: 2nd April 1978.

This second appeal is directed against the judgment of a learned District Judge, Sukkur, whereby he allowed the appeal of respondent No. I, and decreed his suit for pre‑emption.

2. The dispute in this case is in respect of an un-surveyed house in village Lakhi, Taluka and District Sukkur. It is an admitted position that respondent No. 1 resides in a house adjoining the house in dispute. This latter house was owned by respondents Nos. 2 and 3, who have since died They sold the house to respondent No. 1 through a registered deed, executed on 15‑2‑1967, for a consideration of Rs. 725. The respondent No. 1 claimed to be a Shafi‑e‑Jar (on the score of vicinage) and Shafi‑e‑Khalit (the participator in common amenities and appendages) and on that footing filed a suit for pre‑emption against the appellant in the Court of the learned Civil Judge, Shikarpur. The appellant denied that respondent No. 1 was either Shafi‑e‑Jar or Shafi‑e‑Khalit and further resisted the suit on the ground that the claim for pre‑emption was preferred by him much after be came to know of the sale of the property and further that the necessary Talabs were not made by respondent No. 1 as required by law. The learned Civil Judge held that respondent No. 1/plaintiff was only Shafi‑e‑Jar and not Shafi‑e‑Khalit and that further bad made valid Talab‑e-Ishhad but not Talab‑e‑Ishhad as required under law and accordingly dismissed the suit.

3. On appeal, the learned Additional District Judge held that respondent No. 1 had established that he was both Shafi‑e‑Jar and Shafi‑e‑Khallt and that both Talab‑e‑Mowslbat and Talab‑e‑Ishhad were duly made by respondent No. 1 in accordance with the requirements of law.

4. I have Neared Mr. Maroof Ali Khan, the learned counsel for the appellant, and Mr. N. A. Farooqi, who appeared for respondent No. 1. It was conceded by Mr. Maroof Ali Khan that respondent No. 1 was Shafi‑e‑Jar inasmuch as his house adjoins the house in dispute. He, however, impugned the finding of the learned 1st Appellate Court to the effect that the respondent No. 1 had a right to discharge rain water from his house on the property in dispute or had passage over the said property and submitted that the finding of the learned 1st Appellate Court that respondent No. 1 was Shafi‑e‑Khalit was based on mis-appreciation of evidence. The main ground of attack of the learned counsel, however, was that the Talab‑e‑Ishhad was not made as required by law. He submitted that the requirements of this Talab are that while making it reference should necessarily be made to Talab‑e‑Mowasibat, but as this was not done, con sequently the legal requirements of Talab‑e‑Ishhad had not been fulfilled and hence respondent No. 1 was not entitled to the right of pre‑emption.

5. Mr. Nasim Farooqi, the learned counsel for respondent No. 1, on the other hand, strongly supported the decision of the First Appellate Court and submitted that not only the said respondent was Shafi‑e‑Jar but also Shafi‑e‑Khalit and that further the two Talabs had been properly performed by him.

6. I am inclined to agree with the view taken by the learned 1st Appellate Court that respondent No. 1 had established that he was, Shafi‑e‑Khalit.

In his plaint he had specifically claimed this right and in support of his claim he not only examined himself but also 3 other witnesses, namely, Nawab, Hakim Ali Shah and Haji Abdul Majid. Alt these witnesses have testified that the house of respondent No. 1 and the house in dispute were originally common houses, that the two houses have a common main entrance and that further the water of the house of respondent No. 1 discharges on the house in dispute. Their evidence finds support from the sale deed under which respondent No. 1 had purchased his house from respondent No. 2. A The sale deed, as pointed out by the learned 1st Appellate Court, shows that the drainage of the house of respondent No. 1 is to pass through the suit house and the outer gate of both the houses is common. It may be pointed out that the appellant did not step into the witness‑box to controvert these averments. The only witness examined by him was his attorney, Mohammad Ibrahim, who denied that respondent No. 1 was sharer of common appendages with the house in dispute. This witness was rightly disbelieved by the learned 1st Appellate Court as apart from his obvious interest in respondent No. 1, there were disputes between him and the appellant who had admittedly filed 107, Cr. P. C. proceedings against him.

7. So far as the issue of the proper performance by respondent No. 1 of the two Talabs is concerned, there is no dispute that the Talab‑e‑Mowasibat was properly performed by respondent No. 1. This fact was clearly conceded by the learned counsel for the appellant. The question, however, which falls for consideration is whether the Talab‑e‑Ishhad was duly performed by respondent No. 1. The mode in which this Talab is to be performed, according to Hedaya, is as follows :‑---

"The claim by affirmation and taking to witness (which must be made as soon as conveniently may be after the other). The second mode of claim to Shaffa is termed the Talb Takreer wa Ishhad, or claim by affirmation and taking to witness and this also is requisite; because evidence is wanted in order to establish proof before the Magistrate; and it is probable that the claimant cannot have witnesses to the Talb Maivasibat, as that is expressed immediately on intimation being received of the sale. It is therefore necessary afterwards to make the Talb Ishhad wa Takreer, which is done by the Shafee taking some person to witness,‑either against the seller, if the ground sold be still in his possession,‑‑or against the purchaser,‑ or upon the regarding which the dispute has arisen; and upon the Shafee thus taking some person to witness, his right of Shaffa is fully established and confirmed. The reason of this is, that both the buyer and seller are opponents to the Shafee in regard to his claim of Shaffa; the one being the possessor, and the other the proprietor of the ground ; and the taking evidence on the ground itself is also valid; because it is that to which the right relates. If the seller have delivered over the ground to the buyer, the taking evidence against him is not sufficient, he being no longer an opponent; for having neither the possession nor the property, he is as a stranger. The manner of claim by affirmation and taking to witness is, the claimant saying Such a person has bought such a house, of which I am the Shafee; I have already claimed my privilege of Shaffa, and now again claim it: be therefore witness thereof." (It is reported from Aboo Yoosaf that it is requisite the name of the thing sold, and its particular boundaries, be specified; because a claim is not valid unless the thing demanded be precisely known.)"

8. The essential requirements of Talab‑e‑Ishhad thus would appear to be‑---

(a) 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;

(b) that the Talab should be made in the presence of not less than 2 witnesses (see section 236, Mulia's Principles of Mohomedan Law, 1977 Pakistan Edition) ;

(c) that while making Talab‑e‑Ishhad, reference is required to be made to the Talab‑e‑Mawasibat, as also pointed out in Mohammed Luqman v Amir Ali P L D 1969 Dacca 64.

9. Mr. N. A. Farooqi submitted that the Talab‑e‑Ishhad was duly made by respondent No. 1. According to him, this Talab was in fact performed twice, once, immediately after respondent No. 1 was informed by his brother -in‑law, Nawab, about the sale of the property in dispute when he made the Talab‑e‑Mawasibat, and the second time, shortly thereafter, when respondent took witnesses Hakim Ali and Haji Abdul Majid to respondent No. 1 and in their presence made the Talab‑e‑Ishhad and even offered the price of the property sold to respondent No. 1. The contention of Mr. N. A. Farooqi was that though ordinarily Talab‑e‑Mawasibat and Talab‑e‑Ishhad are to b performed separately, they can be performed simultaneously. This proposi tion of law is no doubt correct and is supported by the decisions in Nundo Parsad Thakur v. Gopal Thakur (I L R 10 Cal. 1008) and Abdul Majid v. Qamruddin (A I R 1945 All. 37). The latter decision follows a number of earlier decisions on the point by the Allababad High Court.

10. In the instant case, no doubt, it is the case of respondent No. 1 that immediately on coming to know of the sale of the house in dispute to the appellant, he had rushed outside the house and informed the appellant, who met him at the entrance of the house, that he had the right to pre‑empt, but no such claim was made by him in his plaint. Furthermore, the claim of the appellant at best was made only in the presence of witness Tayab while they law requires that the Talab‑e‑Ishhad must be made in the presence of not less than two witnesses. Even the presence of Nawab at the time of making the Talab to respondent No. 1 is not established, for whereas respondent No. 1 has i made no reference in his evidence to the presence of Nawab at the time o If making of the second Talab, it is only Nawab who states that this Talab was made in his presence. Since Nawab had informed respondent No. 1 of the sale of the house in dispute inside the house of respondent No. 1, there is a reasonable possibility that Nawab remained in the house of respondent No. I when the latter came out to meet the appellant, assuming that the averment of respondent No. 1 in this behalf is correct.

11. So far as the second occasion on which the Talab‑e‑Ishhad is said to have been made, though 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‑Mawasibat earlier made by him in hi house. Thus an essential requirement of the Talab‑e‑Ishhad was not fulfilled in the instant case. Mr. Nasim Farooqi sought to show that on this occasion respondent No. 1 had, in the presence of the appellant, expressly referred to his Talab‑e‑Mawasibat, and in this behalf he placed reliance on the evidence of witness Hakim Ali Shah, but I am not inclined to place any reliance on this evidence. In the first place, respondent No. 1 has not, in his evidence, claimed that he referred to his Talab‑e‑Mawasibat while making the Talab‑e-Ishhad. Furthermore, even according to his witness, Hakim Ali Shah, respondent No. I told the witness and not the defendant about his earlier having made the Talab‑e‑Mawasibal.

12. I am, therefore, of the view that the respondent No. 1 has failed to establish his right of pre‑emption in respect of the house in dispute inas much as the Talab‑e‑Ishhad was not duly made as required by law. I would accordingly, allow this appeal with costs, set aside the judgment and the decree of the learned 1st Appellate Court and restore the judgment and the decree of the learned Civil Judge.

S. A. H. Appeal allowed.

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