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Civil Revision Application No. 142 of 1981, decided on 18th May, 1987.

(a) Muhammadan Law---

--Pre-emption--Right of--Talab-e-Mawasibat (immediate demand) and Talab-e-Ishhad (demand with invocation of witnesses)--Consistent view of superior Courts that at time of making second demand, non-reference to the first demand was fatal to the case of claimant of right of pre-emption --Such decisions of superior Courts being binding on them Courts below acting and deciding case in accordance with law laid down therein but it was much before the decision in case of Hussain Bux P L D 1985 Kar. 161 (holding different-view)--Difference of opinion between earlier decisions and the view expressed by Single Judge of Karachi High Court in case of Hussain Bux, held, could be set at rest only by an authoritative decision of the Supreme Court or Division Bench of Karachi High Court or by codification of law of pre-emption as suggested by the council of Islamic Ideology.

Muhammad Lokman Mondal v. Amir Ali Mondal P L D 1969 Dacca 64; Rujjub Ali Chopedar v. Chundi Churn Bhadra and others I L R 17 Cal. 543; Mubarak Husain v. Kaniz Bano and others I L R 27 All. 160; Sadiq Ali v. Abdul Baqi Khan and another I L R 45 All. 290; Nazir Ahmed and others v. Muhammad Sheir Ali and another PLR 5 Dacca 757; 1st Appeal No. 1 of 1980; Jadal v. Abdul Majeed P L D 1978 Kar. 732; Abbasi Begum v. Afzal Husen (1898) 20 All. 457 and Govind . Dayal v. Inayatullah (1885) 7 All. 775; Principles of ' Muhammadan Law by Mulls; Hidayah by Hamilton; Digest of Muhammadan Law by Baillie and Fatawa-e-Qazi Khan ref.

(b) Muhammadan Law---

---Pre-emption--Talab-e-Mawasibat (immediate demand) and Talab-e -Ishhad (Second demand with invocation of witnesses) --Vendee not present at time of making first demand--Imperative for claimant of right, in such case, to have referred to his first demand while making the second demand so as to show that he had made Talab without any delay.

(c) Civil Procedure Code (V of 1908)--

---S. 115--Revision--Scope of revision application under S.. 115, C.P.C. The scope of the revision application is limited under section 115, C.P.C., and the High Court can interfere only when (a) the subordinate Court appears to have exercised the jurisdiction not vested in it by the law or, (b) to have failed to exercise the jurisdiction so vested or, (c) to have acted in exercise of jurisdiction illegally or with material irregularity.

Syed Nasiruddin for Applicant.

Niazy Abdul Khaliq for Respondents.

Date of hearing: 13th May, 1987.

This Revision Application is filed challenging the order of the learned IInd Additional District Judge, Nawabshah, dated 1-4-1981, whereby, he dismissed Civil Appeal No.22 of 1976, filed by the applicants against the judgment and decree of Senior Civil Judge, Nawabshah, dated 13-3-1976, dismissing the Suit No.68 of 1969, filed by the applicants.

2. The brief facts leading to this revision application are that the land bearing Survey No. 273/lA, 1B, 2B, 3 and 4, total area of which is 9.39 acres, in Deh 6 Marvi, taluka sakrand, was jointly owned by the applicants, who owned 50 paisa share, Respondent No.2, who owned 19 Paisa share and one Sehjram who owned 31 Paisa share. This land was being cultivated by the applicant and his sons as 'Haris' of the land. In about first week of May, 1969, one Noor Muhammad Kerio father of the respondent No.l, disclosed to the applicant that his son Dur Muhammad had purchased the share of respondent No.2, whereupon, the applicant allegedly pronounced his right and intention to pre-empt the sale, and asked Haji Ahmed Khan and Muhammad, who were present at that time, to bear witness to his demand. After two days. he repeated his demand to respondent No.l in presence of the said witnesses, He showed his willingness to pay the price at Rs.500 per acre which was market price of the land, but respondent No.l refused to accede to the demand of the applicant and hence he filed the suit for pre-emption.

3. The respondent No.l only contested the suit. He contended that he had purchased the share of Sehjram and the land was in his possession and privately partitioned. On pleadings of the parties, the Court settled the following issues:

1. Whether the suit land had been partitioned at site between the' plaintiff and the defendant No.l

2. Whether share of Sehjram had been purchased by defendant .No.l and is in possession of defendant No.l. If yes what is its effect

3. Whether the plaintiff had made the demands as averred in paras 7, 8, 9 and 10 of the plaint

4. Whether the amount of sale shown in the deed of sale in favour of the plaintiff is not real but exaggerated

5. Whether the demands made are legal and valid

6. Whether the plaintiff has right of pre-emption

7. What should the decree be "

4. The suit of the applicants was dismissed by the learned Trial Court. Before learned Appellate Court, both the parties pressed only issues No.3 and 5. The learned Appellate Court dismissed the appeal of the applicant deciding these two issues against the applicant mainly on the following two grounds.

(i) That while making the second demand, the applicant did not make reference to the first demand.

(ii ) That there was delay of two days in making the second demand.

5. Syed Nasiruddin, the learned counsel for the applicant does not dispute the findings of the two courts below on facts, that while making the second demand the applicant did not refer to first demand and that he made second demand after delay of two days but contended that these two factors did not extinguish his right of pre-emption.

He has mainly relied upon the case of Hussain Bux v. Mir Muhammad and others (PLD 1985 Kar. 161) .

6. The learned Appellate Court while dismissing the appeal has relied upon the case of Muhammad Lokman Mondal v. Amir Ali Mondal (PLD 1969 Dacca 64). In that case, A.S. Chowdhury, J., allowed the appeal and dismissed the suit of pre-emption holding that omission to make express reference of Talab-e-Mawasibat (first demand) at time of making Talab-i-lshhad (second demand) was fatal to the claim of the pre-emption. While arriving at the decision the learned Judge referred to a passage from the principle of Muhammadan Law by Mulla with respect to the requirements of making Talabs. It reads as under:

"Demands for pre-emption. --No person is entitled to the right of pre-emption unless-

(1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talab-i-mowasibat (literally, demand of jumping, that is, immediate demand) and unless,

(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talab-i mowasibat had already been 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 of sale, and

(b) in the presence at least of two witnesses.

This formality is called talab-i-ishhad (demand with invocation, of witnesses)."

7. The learned Judge referred to the full Bench decision of Calcutta High Court in Rujjub All Chopedar v. Chundi Churn Bhadra and others (ILR 17 Cal. 543) and to the decision of Division Bench of Allahabad High Court in the case of Mubarak Husain v. Kaniz Bano and others (ILR 27 All. 160). Reference was also made to the case of Sadiq Ali v. Abdul Baqi Khan and another (ILR 45 All. 290) and to the decision of Division Bench of Dacca High Court in the case of Nazir Ahmed and others v. Muhammad Sheir Ali and another (PLR 5 Dacca 757). In all these cases, it was held that at the time of making second demand it was necessary to refer to the first demand and the omission to make such reference was fatal to the claim of pre-emption.

8. In the judgment of the case of Hussain Bux, which is very exhaustive, informative and thought provoking, the learned Single Judge of this court has traced the source of the principles governing the right of pre-emption under the Muslim Law' and also referred to the string of case law. Besides referring to the case of Muhammad Lokman and other cases cited above, he has also referred two other decisions of this court, one in 1st. Appeal No.l/1980 by Ajmal Mian, J., and the other in the case of Jadal v. Abdul Majeed (PLD 1978 Kar 732), by Z.A. Channa, J. In both the cases, it was held, that non reference in the second demand to the earlier demand was fatal to the claim of pre-emption. Similar views was taken in the case of Abbasi Begum v. Afzal Husen ((1898) 20 All. 457) by the Division Bench of the said Court.

9. In the opinion of the learned Single Judge all these decisions of the superior courts are based on the translation of Hidayah by Charles Hamilton but this translation is not from the original Arabic text but it has been translated from the Persian translation and therefore, it is not reliable. The learned Judge has quoted from the digest of Muhmmadan Law by Baillie, wherein, it is remarked that Mr. Hamilton's translation of the 'Hidayah' was of little utility as a work of reference to indicate the law on any particular point which may be submitted to judicial decision. It is further observed therein that less dependence can be placed upon it than if it had been derived directly from the original in Arabic. The learned Single Judge W has also quoted from the observations of the great jurist Mahmood, J., in the case of Govind Dayal v. Inayatullah reported in (1885) 7 All. 775 at page 798: The observation is reproduced as below:

"In this passage Mittal, J., referred to the material upon which he based his conclusions and he proceeds to quote passages from those materials. On this point, I have to say that those materials appear to me to be in other respects inadequate. They are to be found in the Hidayah, or rather in the transaction of Hidayah made by Hamilton about a century ago, under the orders of the Governor, General Warren Hastings. It was not, however, a translation of the original Arabic text, but a Persian translation. For that work gratitude is due to Mr. Hamilton, but at the same time, I am afraid it has been sometimes source of mistakes by our Courts in the administration of the Muhammadan Law."

10. The learned Single Judge has also quoted from the Urdu translation of Fatawa-e-Qazi Khan which was published by Musleh-ul- Mutabel, Delhi in 1897, where, there is no mention that Talab-e-Ishhad should specifically mention the Talab-e-Mawasibat. The learned Single Judge was of the view that right of pre-emption was not one of those rights mentioned in Holy Quran but was created by a Hadith of Holy Prophet (p.b.u.h.) which has been quoted by the learned Single Judge as under:

"The right of 'Shufa' is established in him who prefers the claim without delay."

11. The learned Single Judge was further of the view that so far as Talab-e-Ishhad was concerned, it was in nature of a notice to defendant in modern sense and that was the reason why the Talab itself became un-necessary when the vendee happened to be present at time when Talab-e-Mawasibat was made. It will be useful to reproduce the following observation of the learned Single Judge:

"It should not be overlooked that times have changed, means of communications have improved and things which were supposed to be essential at that time are completely rendered meaningless in the present age. Therefore the concept and methodology of making the Talab particularly Talab-e-Ishhad and Talab-e-Tamalluk should and have actually undergone a complete metamorphosis. What was done in those days by marching the two witnesses and reaching either to the other steps of a vendor whoever happened to be nearer and repeat the ritual by repeating certain phrases and then turning to the two witnesses and addressing them have now become obsolete and meaningless."

12. All these discussions lead to the conclusion that so far the established principle and practice approved by the Superior courts by way of decisions by Single Benches, Division Benches as well as by Full Bench in this Sub-continent is that it is necessary for a person who claims right of pre-emption to make two Talabs in accordance with the mode laid down in the Mohammadan Law by Mulls, as reproduced above. No doubt, there is no mention of this right or 'A mode of enforcing the right in Holy Quran, but even according to the Hadith of the Holy Prophet quoted above the claimant of the right of pre-emption has to assert his right without delay. There is much force in the observation of the learned Single Judge that in certain cases when the purchaser is present at the time the first demand is made in presence of the witnesses, the second demand would become redundant, superfluous and un-necessary repetition. But each case is to be decided on its own merits. In the instant case, the purchaser viz. respondent No.l was admittedly not present at the time of first demand and therefore, it was imperative for the B applicant to have referred to his first demand while making the second demand so as to show that he had made Talab without any delay. However, in this case, this Court is dealing with the matter in the revision application and the scope of the revision application is limited under Section 115 C.P.C., and the High Court can interfere only when (a) the subordinate court appears to have exercised the jurisdiction not vested in it by the law or, (b) to have failed to be exercise the jurisdiction so vested or, (c) to have acted in exercise of jurisdiction illegally or with material irregularity.