ORDERSHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Revision
No. 72 of 2011
________________________________________________________________
DATE ORDER
WITH SIGNATURE OF JUDGE ______________________________________________________________________
For
katcha Peshi.
23-10-2017.
Applicant
Gul Muhammad Mahesar in person.
Mr.
Sarfraz Ahmed Akhund Advocate for respondents.
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This revision has been
filed against the appellate Court’s Judgment dated 24.12.2010 passed by the 3rd
Additional District Judge Sukkur against the Judgment and Decree passed in F.C
Suit No. 1/2004. The matter pertains to pre-emption right exercised by way of
Shafi-e-Khalit and Shafi-e-Jar. The case of the applicants interalia is that he
owns neighboring survey No.741 which adjoins survey No.740 who allegedly has
sold by respondent No.1 to respondent No.2
where in respect of which he has made proper Talabs. The trial Court
framed four key issues which are reproduced as under:-
1.
Whether the plaintiff is pre-emptor in
accordance with Mohammadan Law ?
2.
Whether plaintiff made demands in accordance
with law ?
3.
Whether defendant No.2 is not stranger and
also pre-emptor of the suit property and is Shafi-e-Sharik?
4.
Whether the suit of the plaintiff is time
barred ?
For the first two issues
trial Court gave findings in negative whereas for issue No.3 the first part was
in affirmative and second in negative whereas for issue No.4 the trial Court
gave its findings in affirmative, meaning thereby the trial Court gave clear
findings that neither the plaintiff had pre-emption right in Mohammadan Law nor
the Talabs were made in Mohammadan Law and the suit is time barred under the
Limitation Act against this an appeal was preferred wherein the appellate Court
reversed the findings on issue No.1 holding that the applicant was pre-emptor
in accordance with Mohammadan Law, however, declined to interfere with the
other findings. The applicant is present in person and has made comprehensive
arguments in support of his case. He submits that pre-emption is personal right
and as per shariah he has all the rights to restrain the sale of adjoining
property to stranger as this would amount to create ‘zarrar’ for him.When
challenged on the point of limitation he submitted that as soon as he got the
information about the sale, he made the Talabs however, on the question that he
failed to produce two witnesses as required under article 236 of Muhammadan Law
by Mulla’s, he said that one independent witness was examined by him and by
mere admission of defendant No.1 through exhibit No.42 there was no need to
bring a second witness. With regard to limitation, he has placed reliance on
1986 PLD Page 458.
Learned counsel for the
respondents admitting the right of applicant to be pre-emptor however maintains
that the requirement of article 236 of two independent witnesses has not been
complied with hence, as well as the the
suit was time barred.
Heard parties, reviewed
the material. While the trial Court considered the case of the applicant and
gave negative findings to his competency as pre-emptor on the ground that his
name was not entered into the record of
the land in question as the land remained in the name of his mother, however
appellate Court reversed these findings by holding that even being a legal heir
he was competent to demand pre-emption. With regard to requirement of two
independent witnesses under article 236 his contention that the defendant
itself having admitted his Talbs became a witness is clearly devoid of merit.
There is clear requirement for two witnesses of “Talab-i-ishhad” which the
petitioner has failed to bring to the witness box. Be that as it may, he has
admitted that there were atleast four other cases which he has filed in respect
of other neighbouring properties claiming right of pre-emption. This is an
admission which has serious consequences.
The right of pre-emption have been
discussed in details in the landmark
Judgment of Government of N.W.F.P through Secretary, Law Department vs. Malik
Said Kamal Shah reported in P L D 1986 Supreme Court 360. It is an admitted
fact that for the claim of Talab-i-jar the properties are preferentially to be
residential and at many occasions Courts have held that in respect of large chunks of agricultural
land such claim by way of Shafi-i-jar are not tenable and application of
shafi-i-jar to such parcels of land would amount to give currency to the hyprocracy.
Since the principles of shifa confronts with powerful rights of neighbourers,
it is worth mentioning that shariah has given more preference to the right of
neighboures as compared to right of pre-emption until and unless it is shown
that presence of strangers in the neighbourhood would cause ‘zarrar’ to the
pre-emptor. It is admitted that there is no statutory pre-emption law in Sindh,
therefore, strict compliance of shariah is the only way forward while keeping
in mind that in the Holy Quran there is no mention express or implied of a right
of pre-emption, Islam or customary (1985 PLD Karachi 161). Particular mention
of the following portions of the abovementioned apex Court’s judgment are
mandatory to steer this case forward.
A perusal of the foregoing
fundamental aspects of the right of Shifa in Islam depicts that shifa cannot be
used for adding properties as a tool for becoming in rich for adding properties
to once folio for forcing neighbourers compulsory sell their estates to the
claimants. Shariah has to be editious to this right and only make it relevant
to those who are desperate need of exercising this right. The Courts have
declared it a very feeble right and abovementioned apex courts has concluded
that it is through spirit of the shifa rights which exercises and the Courts interpretsthem
as per shariah this will bring end to last to unwarranted and self-benefittinglitigation
to do an end. The another aspect of Haq-e-Shiffa is consent from the perspective
of its conclusion that the right of neighbourers has contradicted under
shariah. Haq-e-shiffa being a feeble right and exercisableonly to avoid zarrar.
Our Prophet (P.B.U.H) has given tremendous strength to the right of neighbourer
to the extent that Hazrat Aaishia Siddiqa (R.A) wife of the prophet has quoted
that some time she fears that the holy prophet (S.A.W) giving impetuous to the
rights of neighbourers to the extent that she fear that he (S.A.W) might
include neighbourer as legal heirs to once property. The case at hand could
clearly be seen while marred to the failure of the applicant to produce two
witnesses of Talab-e-Ashhad. Also this epitite and shown through his occasions
in respect of other neighboring properties is similarly end to give extension
to his land holdings. It is an utter violation of the fundamental governing
right of shiffa. Review of the impugned judgment shows that the appellate Court
has fully considered weaknesses of the applicant’s case where itwas alleged
that he was not owner of the adjacent land entitling him pressing a claim for
pre-emption. Further, Court witnessed that no demands were made in accordance
with law in respect of the requirement of two Talabs in the presence of
witnesses where he only to be forward one witness and that too his son Noor
Muhammad who has been doing this job in number of cases filed by the applicant
claiming rights to neighboring properties through conceived pre-emption suits.
I do not find any strength in the arguments put forward by the applicant who
failed to impress me as to any illegality or irregularity in the findings
recorded through the impugned judgment as I do not see mis-reading or non-reading
of evidence nor any patent error flouting on the surface could be seen. I,
therefore, dismiss the instant revision application by imposing costs of Rs.
10,000/- payable in the Masjid situated inside the boundary wall of High Court
of Sindh bench at Sukkur.
Irfan/PA.