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Second Appeal No.41 of 1978, decided on 31st March, 1986.

---Pre-emption suit--Talab-i-Mowasbat (first demand)--Sale of land in dispute made in favour of appellant-vendee through a registered sale-deed--Plaintiff-respondent claiming right of pre-emption, on land in dispute, which was adjacent to her land, authorised her father to make Talab-i-Mowasbat--Statement made by respondent's father in his evidence not amounting to Talab-i-Mowasbat as required in law as he did not exercise right of purchase as a Shafi of land immediately on hearing that sale had been made in favour of appellant--Respondent's father heard about Sale from cousin of respondent and went to inform her about sale whereupon she stated that she had better right to purchase same--Statement of plaintiff-respondent as well as statement of her father/attorney and evidence of cousin of plaintiff who first informed father of plaintiff about sale, held, could not establish first demand as required under law--Judgment of Courts below decreeing suit of plaintiff-respondent set aside in circumstances.

Abdul Matin for Appellant.

R.H.Farooqui for Respondents.

Date of hearing: 31st March, 1986.

This Second Appeal under section 100 of C.P.C. is filed by the defendant /appellant against the two concurrent judgments of the Courts below. The respondent No.1 instituted Civil Suit No.250/74 in the court of Civil Judge, Hyderabad, claiming right of pre-emption in respect of agricultural land bearing survey No.99, measuring 3.23 aces situated in Deh Lashari, Taluka and District Hyderabad. It was alleged in the plaint that land bearing survey No.100 which is adjacent to survey No.99 is owned and possessed by the plaintiff. It was further stated that survey No.99 was sold to the appellant by the respondent No. 2 through a registered sale-deed dated 3-3-1974 and that the respondent No.1 came to know about the said sale on 8th May, 1974 through her father when she immediately declared her intention to purchase it. It is further stated that she authorised her father to make further necessary demand and perform the formalities for the aforesaid purpose and in pursuance of that authority the father of respondent No.1 made the second demand to the appellant. The learned trial Court decreed the suit of the respondent No.1 having reached the conclusion that both the Talab-i-Mow8sbat and Talab-i-Ashhad were made in accordance with law and the judgment and decree of the trial Court has been confirmed by the first appellate Court.

2. Learned counsel for the appellant contends that the judgment and decree of the Courts below decreeing the suit of respondent No.1 for pre-emption is unsustainable in law as neither the first demand nor the second demand in the case was in accordance with law. With regard to the first demand the learned counsel for the appellant contends that it was not at all made as required under the law and therefore the second demand, if any was of no avail as the respondent had failed to establish the first demand (Talab-i-Mowasbat). Learned counsel for the respondent on the other hand supported the judgment and decree' of the Courts below and contended that both the demands namely, Talab-i-Mowasbat and Talab-i-Ashhad were made in accordance with the law. The only question which requires consideration in this appeal, in view of the submission of the learned counsel for the appellant, is whether there was any evidence before the Courts below to reach the conclusion that Talab-i-Mowasbat was validly made by the plaintiff /respondent No.1. The plaintiff /respondent No.1 was not examined in the case personally but she examined her father who stated in his evidence that he was her attorney 5 to 6 years before institution of suit and was authorised by her to look after the affairs of the plaintiff in respect of her landed property including the right by appellant and consequent exercise of right of pre-emption. The following statement was made by the father of respondent No.1(Ex.20) in his examination-in-chief:-

"We came to know about .the purchase of S.No.in question in the beginning of month of May, 1974 through my nephew Mir Aslam. My nephew came to know about this as he had gone to the lands where he saw defendant No.1 was ploughing the S. No.99 on his enquiry defendant told him that he had purchased the same. Fateh Muhammad has never before cultivated the land. I told my nephew that how this land has been sold as it is just adjacent to the land o my daughter who has already authorised me to purchase lands adjacent to her land, I then told the same story to my daughter before my nephew who told me that she wanted to purchase the same and how is it possible that the defendant has purchased the land. She then authorised me further to proceed according to law and to take all necessary steps for that purpose. On the next day I went to defendant Fateh Muhammad alongwith Mir Aslam and Ramzan whom I told that I am taking them as witnesses as I wanted to deal the land for my daughter. I then alongwith the witnesses met the defendant in land where he was ploughing. I told him that how he has purchased the land which is adjacent to the land of my daughter. I further told him that I wanted to purchase the same from him on the same price on which he had purchased. I also told the defendant that when I had come to know about the purchase I had protested and had made the demands immediately. Defendant did not reply deliberately but he gave evasive replies. T then came to the office of Sub-Registrar and obtained the copy of sale-deed. Then I again went to Fateh Muhammad for enquiring about the totally refused. I then gave him legal notice which was received by him. I produce the copy of the notice as Exh.21. I also produce original reply sent by the defendant as Exh.22. I produce the certified copy of the map of Deh Lashari as Exh.23 and certified copy of th.e Deh form No.6 as' Exh.24. I produce certified copy of sale as Exh.27. Defendant Fateh Mohammad and his relatives have never remained Haris of the disputed survey Nos.1ncluding Jan Muhammad. I had also given the same notice to defendant No.2."

(The underlining is my own).

It is an admitted position that the sale was made in favour of the appellant through a registered sale-deed dated 30th March, 1974, as stated in paragraph 5 of the plaint. The case of the respondent No.1 was that she came to know about the sale on 8th May, 1974. I have already reproduced above the relevant portion of the evidence of respondent No.1's father who was examined in support of the case and have also underlined the portion relating to Talab-i-Mowasbat. The aforesaid statement made by the father of respondent No.1 in A his evidence cannot amount to Talab-i-Mowasbat as required in the law. It is quite clear from the underlined portion of the evidence of Mir Munir Ali (Exh.20) that he did not exercise the right of purchase as a 'Shaft' of land immediately on hearing that the sale has been made in favour of the appellant in respect of the disputed survey number. His statement that he told his nephew that now the land has been sold as it is adjacent to the land of his daughter who had already authorised him to purchase the land adjacent to her land could not be interpreted as amounting to Talab-i-Mowasbat'. Similarly, the subsequent statement of the respondent No.1 after having learnt the same stcry from her father was that she wanted to purchase the land and how it is possible that the defendant has purchased the same also cannot be interpreted as amounting to Talab-i-Mowasba. It may be mentioned here that according to the plaintiff's own case Mir Munir Ali her father had the right to manage and look after the' entire landed property of respondent No.1 including the right to exercise the right of pre-emption. I have already, reproduced the statement made by Mir Munir Ali in his evidence with regard to Talab-i-Mowasbat and it cannot be said that the statement made by him amounted to Talab-i-Mowasbat as defined under the law. Apart from it, Mohammad Aslam, cousin of respondent No.1 who allegedly conveyed information to respondent No.1 through her father was also examined in the case and he made the following statement with regard to conveying of the information regarding sale of survey No.99 and the consequent reaction of Mir Munir Ali and her daughter to it. It is as follows:-

"About 1 year back I had gone to see my lands where I saw that defendant No.1 was ploughing survey No.99 which is adjacent to survey No.100 of the plaintiff. On my enquiry the defendant told me that his survey No.1s adjacent to the survey number of my cousin and that she has better right to purchase the same and that she had already asked her father to purchase the adjacent lands if possible. In the evening then I told my uncle about the above fact at his otak. Then we went to the plaintiff whom my uncle informed about the suit, she said that how is it possible and she has better right to purchase the same. She further told that she has already asked my uncle to purchase the adjacent lands if possible for her. Plaintiff then told my uncle that she again authorises to go and (sic) from the Fateh Muhammad for the land and take necessary legal actions."

From the above reproduced statement of Mohammad Aslam it is quite clear that when he conveyed the information regarding sale of survey No.99 in favour of the appellant the respondent No.1's father did not react at all and made no demand with regard to right of pre-emption of land in suit. According to the evidence of Mohammad Aslam, after hearing about the sale the father of respondent No.1 went to the plaintiff and informed her about the sale whereupon she stated that she has better right to purchase the same. The statement of respondent B No.1 that she had better right to purchase the land in dispute could also not amount to Talab-i-Mowasbat under the law. It is therefore quite clear that both from the evidence of respondent No.1's attorneys father as well as from the statement of Mohammad Aslam (Exh.27) the first demand as required under the law could not be established and as such the plaintiff's suit could not be decreed for pre-emption in respect of survey No.99. I accordingly accept this appeal, set aside the judgment and decree of the Courts below and dismiss the suit of the plaintiff. In the circumstances of the case there will be no order as to costs.

M. Y. H./F-29/K Appeal allowed.

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