P L D 2015 Supreme Court 69

Present: Jawwad S. Khawaja and Qazi Faez Isa, JJ

SUBHANUDDIN and others—Appellants

Versus

PIR GHULAM—Respondent

Civil Appeal No.1131 of 2011, decided on 24th October, 2014.

(On appeal from the judgment dated 29-7-2011 in C.R. No.117 of 2006 passed by the Peshawar High Court, D.I. Khan Bench)

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)—

—-S. 13(2)—Talb—Talb-i-Muwathibat—Burden of proof—Person conveying information of sale and price not produced as witness—Effect—Initial burden of proof with regard to conveying of the information of sale and price lay upon the pre-emptor, who failed to discharge the same—Person who had conveyed information of sale and price to brother of pre-emptor, who in turn passed it onto the pre-emptor, was not produced as a witness—Elements of Talb-i-Muwathibat were thus not proved—Appeal was allowed accordingly and suit for pre-emption was dismissed.

(b) Islamic Law—

—-Pre-emption—Talbs—Talb-i-Muwathibat—Meaning.

‘Kitab-Al-Shufa’ of Fatawa-i-Alamgiri and Fatawa-i-Kazi Khan translated by Mohomed Ullah Ibn Jung in ‘The Muslim Law of Pre-Emption’; ‘The Hedaya’ of Maulana Burhanuddin translated by Charles Hamilton and D.F. Mulla’s ‘Principles of Mahomedan Law’ ref.

—-Pre-emption— Talbs— Talb-i-Muwathibat— Significance— Found-ation of claim of pre-emption rested on making an immediate declaration of intention to assert one’s right (Talb-i-Muwathibat) and if the same was not done, the entire structure collapsed.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)—

—-Ss. 5 & 33—Suit for possession through pre-emption—Actual sale price of suit land—Proof—Unsubstantiated statement by pre-emptor—Contravention of Shariah—Disentitlement to claim of pre-emption—Pre-emptor claimed that suit land was sold at a much lower price compared to the amount mentioned at time of mutation—Pre-emptor failed to disclose the source of such information, and if his reason for mentioning a lower price was to obtain an advantage, the same was not permissible as it would contravene the provisions of Shariah, which were specially made applicable to pre-emption cases—Shariah required honesty and truthfulness in one’s dealings and false statements made to obtain an advantage was an anathema to Almighty Allah—When pre-emptor sought undue advantage to be gained on the basis of a completely unsubstantiated statement it would disentitle a shafee (pre-emptor) to claim pre-emption—Plea of pre-emptor in the present case regarding lesser sale price of suit land had no basis and in fact was taken to gain an advantage—Appeal was allowed accordingly and suit for pre-emption was dismissed.

Al-Qur’an Surah 9, At-Taubah Verse 119; Suraha 16, An-Nahl, Verse 92 and Surah 16, An-Nahl, Verse 94 ref.

Zulfikar Khalid Maluka, Advocate Supreme Court for Appellants.

Syed Mastan Ali Zaidi, Advocate Supreme Court for Respondent.

Date of hearing: 24th October, 2014.

JUDGMENT

QAZI FAEZ ISA, J.—The respondent had filed a suit against the appellants agitating his right to pre-emption of the land measuring 18 kanals and 5 marlas situated in Abbassa Tehsil, District Lakki Marwat (“the said suit”), which was dismissed by the Civil Judge Lakki Marwat on 24th November 2004; however, the appeal was accepted on 14th February 2006 by the Additional District Judge Lakki Marwat and the appellate court’s judgment was upheld by the Hon’ble Peshawar High Court vide judgment dated 29th July 2011.

2. The respondent (plaintiff in the, suit) inter alia alleged in the plaint that on 7th December 2003 he learnt about the sale transaction in respect of the said land through his brother Taj Ali (who has also been referred to as Tajali) in presence of another brother Ajmal Khan whereupon he proclaimed Talb-i-Muwathibat and the following day (on 8th December 2003) after getting information from the concerned patwari about the transaction dispatched the notice of Talb-i-Ishhad by registered post to the appellants (defendants in the suit). It was further alleged that though in the mutation entered on 22nd November 2003 an amount of seventy three thousand rupees was mentioned, but only an amount of twenty thousand rupees had been paid for the said land.

3. Mr. Zulfikar Khalid Maluka, the learned counsel for the appellants, contended that the appellants had denied the claim of the respondent, including the timely making of Talb-i-Muwathibat (as the respondent had prior knowledge of the sale and had not come to learn of the sale on 7th December 2003) and had also denied that the property was sold for twenty thousand rupees.

4. That to better appreciate the parties respective contentions we reproduce paragraphs 1 and 2 of the plaint and reply thereto in the written statement.

Plain

Written statement

5. That the respondent in his statement stated that he was informed about the sale of the said land by his brother Taj Ali (P.W.4) in whose presence and in the presence of another brother Ajmal (P.W.5) he had made Talb-i-Muwathibat. He further stated that he had been away at Punjab and upon his return he was informed by Taj Ali about the sale. Taj Ali in his statement said that he was informed about the sale of the said land by his nephew Nazir and that it had been sold for twenty thousand rupees, but did not know that the respondent had gone to Punjab, nor when he had returned. The respondent had also taken a specific plea with regard to the price, which was considerably below the price mentioned in the sale deed, but disclosure in this regard was not made.

6. The learned trial judge in attending to Issue No.3 (“Whether Section 13 of the N.-W.F.P. Pre-emption Act of 1987 has been complied with?”) concluded that Talb-i-Muwathibat was not made immediately upon learning of the sale. The learned judge also came to the conclusion that the respondent had prior knowledge of the sale. Paragraphs 11, 12 and 13 of the judgment of the trial Court are reproduced hereunder:

“11. It is note worthy that plaintiff even himself could not established [sic] the performance of Talb-i-Muwathibat in its own statement, for in his cross- examination (page No.2 Line 17-20). He stated that when Taj Ali (P.W.4) informed him about the alleged sale translation, he (plaintiff) asked him that wherefrom he got knowledge whereupon the informer stated that he got knowledge of the transaction in village Gullapa. Plaintiff further stated that he is not sure that how much time he took for declaring his intention to preempt the transaction after attaining the knowledge meaning thereby that soon after attaining the knowledge he instead of making the jumping demand asked a question from informer and thereafter some time announced his transaction [sic]. Then in last para of his cross examination he fully disclose the story of recoding statements of vendor and vendee and even mentioned the name of witnesses and Patwari Halqa. All this indicates that he was present at the occasion when the statements were being recorded before attestation of the mutation which was attested on 22-11-2003. While plaintiff alleged to have performed Talb-i-Muwathibat on 7-12-2003,

12. P.W.4 contradicted the stance of plaintiff by stating that plaintiff did not ask any question from him after attaining the knowledge of alleged sale transaction. On the other hand P.W.5 contradicted both plaintiff as well as the informer and stated that (cross- examination Line No.8-10) plaintiff asked the informer about sale consideration and the name of vendor.

13. For what has been discussed about it is evident that all the P.Ws. have deposed entirely different and contradictory version about performance of foremost Talb-i-Muwathibat. Moreover, the prior knowledge of plaintiff being present at the occasion of recording of statement of vendor and vendee is also evident from his cross examination. Therefore it is held that plaintiff could not established [sic] the performance of foremost Talb-i-Muwathibat. Hence the issue is answered in negative.”

The learned Additional District Judge, however, did not accept the reasoning of the learned trial Judge and held that:–

“Utterance of some words before making this demand after information is no longer considered fatal defect for Talb-e-Muathibat [sic] and similarly minor contradictions in the detailed cross examination of witnesses of this fact are also ignored. Recent development in law on the subject of Talb has established by now that Islamic right of pre-emption of a person must not fail due to minor discrepancies or contradictions in the statements of witnesses who are cross-examined as [sic] length in respect of facts trivial in nature connected to the real fact in issue.”

The reasoning of the appellate court was accepted by the learned Judge of the Peshawar High Court as under:–

“During the existence of Majlis, if the respondent- plaintiff has asked for any detail from the informer, it would not be considered that the Talb-e-Muwathibat was not made promptly, because the performance of Talb-e-Muwathibat was made in the same Majlis. Moreover, no suggestion was put to the respondent plaintiff that he has not performed Talb-e-Muwathibat in the same Majlis. In view of the above discussion, the respondent-plaintiff has succeeded to prove the performance of Talb-e-Muwathibat.”

The learned trial judge had determined that the plaintiff had prior knowledge and was also present when the mutation was affected however, the Hon’ble appellate and High Courts did not attend to this matter nor considered when the plaintiff obtained knowledge of the sale.

7. It was, the respondent’s case that upon his return from Punjab he was informed about the sale by his brother (Taj Ali). Taj Ali, lives in the same house as the respondent, but did not know whether the respondent was in the village when the sale took place, nor when the respondent returned from the Punjab and that he was informed about the sale by his nephew Nazir. The initial burden of proof with regard to these facts (the conveying of the information of sale and price) lay upon the respondent, and to establish the same Nazir could have been called to give evidence, as the evidence in this regard (which was oral) was required to be direct and of the witness who saw, heard or perceived it himself (Article 71 of the Qanun-e-Shahadat Order, 1984), but Nazir was not produced as a witness. Consequently, an important and relevant fact was not proved by the respondent and on this ground alone the suit merited dismissal as Talb-i-Muwathibat is required to be made immediately upon learning of the sale.

8. The law of pre-emption (shuffa) applicable in the province of Khyber Pakhtunkhwa is the N.-W.F.P. Pre-emption Act, 1987 (hereinafter “the Act”) which stipulates that the right of pre-emption is an extinguishable right and must be immediately asserted (Talb-i-Muwathibat) upon learning of the sale (section 13(1) of the Act). And, “Talb-i-Muwathibat means immediate demand by a pre-emptor in the sitting or meeting in which he has come to know of the sale declaring his intention to exercise the right of pre-emption” (Explanation to sub-section (1) of section 13 of the Act). In `Kitab-Al-Shufa’ of Fatawa-i-Alamgiri and Fatawa-i-Kazi Khan, (translated by Mohomed Ullah ibn Jung in The Muslim Law of Pre-Emption’ published by the Law Publishing Company, Lahore), Talb-i-Muwathibat is defined as:–

“By Talb-i-Muwasabat is meant that when a person entitled to pre-emption hears of a sale, he must claim his right immediately at the very instant, and if he remains silent without claiming the right, it will be extinguished.”

(Fatawa-i-Alamgiri, Chapter III titled The Demand of Pre-Emption’, clause 54 at page 117)

“18. By Talb-i-Muwasabat is meant, that when a person who is entitled to pre-emption is informed of a sale, he ought to claim his right immediately.”

(Fatawa-i-Kazi Khan, Chapter on the ‘Demand of Shuf’a’, clause 18 at page 340)

In ‘The Hedaya’ of Maulana Burhanuddin (translated by Charles Hamilton) the claim of Talb-i-Muwathibat is defined as under:

“The claims are of three kinds. I. The immediate claim (which must be made on the instant, or the Shafee forfeits his title).-

Claims to Shaffa are of three kinds.-

The first of these is termed Talb Mawasibat, or immediate claim, where the Shafee prefers his claim the moment he is apprised of the sale being concluded; and this it is necessary that he should do, insomuch that if he make any delay his right is thereby invalidated; for the right of Shaffa is but of a feeble nature, as has been already observed; and the prophet [peace be upon him], moreover, has said, “The right of SHAFFA is established in him who prefers his claim without delay.”

(Book of Shaffa’, Chapter II)

It would also be useful to refer to D.F. Mulla’s `Principles of Mahomedan Law’ where (in section 236) he defines Talb-i-Muwathibat as under:–

“236. 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 formally is called Talb-i-Mowasibat (literally, demand of jumping, that is, immediate demand);”

9. That what is to be noted from the above is that a claim of pre-emption must be made immediately upon learning of the sale. In the present case the respondent stated that when he returned from Punjab he learnt of the sale from Taj Ali. The appellant denied this assertion and alleged that the respondent had prior knowledge. Taj Ali, the respondent’s own brother who lived in the same house, did not know whether his brother had gone to Punjab or when he returned. Taj Ali also stated that he learnt of the sale from his nephew Nazir, but Nazir, who can be categorized as a material witness, was not produced. Was it because he may not have supported the version of events as presented by the respondent or was it because Nazir had himself informed the respondent? Whilst these are conjectural matters the fact remains that the initial burden of proof with regard to attaining the knowledge of sale lay upon the respondent, which was not discharged. Therefore, the elements constituting Talb-i-Muwathibat, i.e. immediate demand upon learning of the sale, were not proved. Regretfully, both the Hon’ble appellate and High courts did not attend to this matter and the specific finding of the learned trial judge in this regard. The foundation of the claim of pre-emption rests on making an immediate declaration of intention to assert one’s right (Talb-i-Muwathibat) and if this is not done the entire structure collapses.

10. There is another aspect of the case that requires consideration. The respondent had specifically contended (in his examination-in-chief) that the said land had been purchased for only twenty thousand rupees, but without disclosing the source of such information. If the reason for mentioning a lower price was to obtain an advantage the same was not permissible as it would contravene the provisions of shari’ah which have been made specifically applicable to pre-emption cases. Section 33 of the Act stipulates as under:–

“33. Matters ancillary or akin to the provisions of this Act.-

Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shari’ah.”

11. Shari’ah requires honesty and truthfulness in one’s dealing and false statements made to obtain an advantage is an anathema to Almighty Allah: “O, you who believe! Be afraid of Allah, and be with those who are true” (Surah 9, At-Taubah, verse 119); “And be not like her who undoes the thread which she has spun after it has become strong, by taking your oaths a means of deception amongst yourselves” (Surah 16, An-Nahl, verse 92); “And make not your oaths, a means of deception among yourselves, lest a foot may slip after being firmly planted, and you may have to taste the evil of having hindered from the Path of Allah and yours will be a great torment” (Surah 16 , An-Nahl, verse 94). Therefore, when an undue advantage is sought to be gained on the basis of a completely unsubstantiated statement it would disentitle a shafee to claim pre-emption. This was not a case where the plaintiff had been unable to establish the price that he contended was paid for the said land, but instead a case where a plea which had no basis in fact was taken to gain an advantage.

12. That for the aforesaid reasons this appeal is accepted and the suit filed by the respondent seeking pre-emption is dismissed, with costs.

MWA/S-26/SC
Appeal allowed