Order Sheet
IN THE HIGH COURT
OF SINDH, BENCH AT SUKKUR
Revision Application No. S – 64 of 2003
[Muhammad Sulleman Mughal through his legal heirs
v. Niaz Ahmed Dahar & another]
Applicants : Legal
heirs of Muhammad Sulleman,
through Mr. Abdul
Mujeeb Shaikh,
Advocate.
Respondents : Nemo.
Date of hearing : 18-08-2020
Date of order : 10-09-2020
O R D E R
Adnan
Iqbal Chaudhry J. –
F.C.
Suit No. 12/1996 filed by the Respondent No.1 (Plaintiff) for pre-emption as shafi-i-jar in respect of the adjoining
house (the suit house), which had been purchased by the Applicant (Defendant
No.1) from the Respondent No.2 (Defendant No.2), was dismissed by the Senior
Civil Judge, Ubauro by judgment and decree dated 29-01-2003; however, on Civil
Appeal No. 22/2003 by the Respondent No.1 (Plaintiff), the suit was decreed by
the learned IInd Additional District Judge, Ghotki by judgment and
decree dated 10-10-2003; hence this revision application.
2. The
sale deed of the suit house between the Defendant No.1 (purchaser) and the
Defendant No.2 (seller) was registered on 29-01-1995 (Exhibit 69). Suit for pre-emption was filed by the
Plaintiff on 28-01-1996. The case set-up by the Plaintiff was that he came to
know of the sale eleven (11) months prior to filing suit when the “Defendants”
came to his otaq and the Defendant No.1 informed him that he has
purchased the suit house from the Defendant No.2, and that is when the
Plaintiff made talab-e-mowasibat (first demand), followed by talab-e-ishhad
(second demand) in the presence of witnesses namely Shakeel Ahmed, Abdul
Rasheed and Gul Sher; that the Defendant No.1 sought some time to reply as he
wanted to consult his family; but then, three weeks prior to the suit, the
Defendant No.1 refused to sell.
3. On
the other hand, though the Defendant No.1 did not dispute that the Plaintiff
was owner of the adjoining house, he deposed that prior to the suit the
Plaintiff had called him at the Plaintiff’s otaq and offered to purchase
the suit house, which offer the Defendant No.1 agreed to accept on the
condition that the Plaintiff would first manage/trace an alternate house for
the Defendant No.1, to which condition the Plaintiff did not reply at the time;
that no demands/talabs for pre-emption were made by the Plaintiff at the
time, nor were any of the said witnesses present at the otaq.
4. At
the hearing of the instant revision, the Respondent No.1 was called absent.
However, since the order dated 20-05-2019 showed that he was aware of the
proceedings, I proceeded to hear the matter. Heard the learned counsel for the
Applicant and perused the record.
5. Though
it was averred in the plaint that the Plaintiff came to know of the sale eleven
(11) months prior to filing suit, the specific date of acquiring such knowledge
and the making of the talabs was not mentioned in the plaint nor in the
examination-in-chief of the Plaintiff and his two witnesses namely Shakeel
Ahmed and Abdul Rasheed. On cross-examination also, the Plaintiff and the said witnesses
avoided to specify the date. One of the witnesses was admittedly the
Plaintiff’s nephew. Apart from a bald statement that the Defendant No.1 had
kept him on false hopes, there was no explanation for waiting for 11 months before
filing suit. The plaint stated that “the Defendants” had come to the
Plaintiff’s otaq to inform him of the sale, whereas, in his deposition,
the Plaintiff stated that the “Defendant No.1” (only) had come to the otaq.
In view of such inexplicit evidence, the trial court had dismissed the suit
holding that the Plaintiff’s evidence did not inspire confidence.
6. In
decreeing the suit, the appellate court relied solely on the following portion
of the deposition of the Defendant No.1:
“Prior to the filing of the present suit, plaintiff
Niaz Ahmed called me at his otaq and intended to purchase the suit house, on
such intention I had agreed to sell the suit house, with the condition that he
will manage/trace-out the another plot/house for me.”
However, the
appellate court did not notice the very next sentences of the deposition of the
Defendant No.1, which were:
“But he failed to reply and filed the
present suit. The plaintiff never made any demands in the presence of the
alleged witnesses in respect of purchase of the suit house to me.”……………. “It is
incorrect to suggest that when I was called by the plaintiff at his
otaq, witness Shakeel Ahmed and Abdul Rasheed were present.”
7. Nonetheless,
the Plaintiff’s testimony that the Defendant No.1 had voluntarily come to the
Plaintiff’s otaq to inform the Plaintiff that the Defendant No.1 had
purchased the suit house, was quite unbelievable. It is implausible that 1
month after purchasing the suit house, the Defendant No.1 would walk over to
the Plaintiff to invite him to exercise the right of pre-emption over the said
house. Though the Defendant No.1 had accepted that he gone to the Plaintiff’s otaq,
his testimony was that he had been called there by the Plaintiff himself. If
the Plaintiff had called over the Defendant No.1 to his otaq to exercise
the right of pre-emption, it is manifest that the Plaintiff had prior knowledge
that the Defendant No.1 had purchased the suit house; and then, the talab-i-mowasibat
allegedly made by the Plaintiff on meeting the Defendant No.1 at the otaq,
cannot be said to be a jumping demand[1]
made immediately on acquiring knowledge of the sale. It is settled law that if talab-i-mowasibat
is not made immediately on acquiring knowledge of the sale, then it will be
deemed that the shaafi has forgone his right of pre-emption.[2] It is also 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.[3]
8. In view of the foregoing, the impugned
judgment and decree passed by the appellate court is a result of mis-reading of
the evidence, and therefore, requires intervention. Consequently, this revision
application is allowed. The impugned judgment and decree dated 10-10-2003
passed by the learned IInd Additional District Judge, Ghotki, in
Civil Appeal No. 22/2003 are set-aside; the said appeal is dismissed; and the
judgment and decree dated 29-01-2003 passed by the Senior Civil Judge, Ubauro,
in F.C. Suit No. 12/1996 are restored. Miscellaneous matters listed at serial 1
to 5 have become infructuous and are disposed off accordingly.
J U
D G E