Document 1

Journal
2008 SCMR 404
Court
SUPREME COURT
Date
2006-02-02
Appeal No.
CIVIL APPEAL NO. 393 OF 2003,
Judge
MUHAMMAD NAWAZ ABBASI .AND SAIYED SAEED ASHHAD, JJ ‘
Parties
SARDAR MUHAMMAD NAWAZ APPELLANT VERSUS . MST. FIRDOUS BEGUM
(RESPONDENT)
Lawyers
HASNAT AHMAD KHAN, ADVOCATE SUPREME COURT AND C.M. LATIF,
ADVOCATE-ON-RECORD (ABSENT) FOR APPELLANT. MEHMOOD-UL-ISLAM,
ADVOCATE- ON-RECORD FOR RESPONDENT.
Statutes
CONSTITUTION OF PAKISTAN 1973 – ARTICLE 189 PUNJAB PRE-EMPTION ACT
(IX OF 1991) – SS. 13 AND 30 CONSTITUTION OF PAKISTAN (1973) – ARTICLE
185(3)
FACTS
Brief facts of the case are that respondent had purchased 10 Kanals, 1 Marla
of land situated in Kharian District Gujrat (hereinafter referred to as the
“demised land”) from one Subedar Major Ghulam Ali on 1-3-1993 in
consideration of Rs.1,00,000”. It was the case of the appellant that she learnt
about sale on 3-5-1993 and she immediately made Taib-e-Muwathibat;
whereafter notice by way of Talb-e-Ishhad was dispatched on 4-5-1993 which
was duly supported by witnesses P.W.5 Ghazanfar Ali and P.W.6 Zahoor
Ahmad. On 10-5-1993 appellant filed suit for possession of demised land by
way of pre-emption. In the written statement filed by appellant, the
averments made in the plaint were controverted and it was stated that the
respondent did not have any right of pre-emption in respect of the demised
land.
ISSUES
On the basis of pleadings of the parties, trial Court framed the following
issues:-
(1) Whether the plaintiff is estopped by her conduct to file this suit?
(2) Whether the plaintiff made necessary legal Talbs? OPP
(3) Whether the suit had not been properly valued for the purpose of court-
fee and jurisdiction? If yes, then what, is the correct. Valuation for both the
purposes? OPD
(4) Whether, the suit property has not been properly detailed in ihe plaint? If
yes, then what is the correct description? OPD
(5) Whether the ostensible sale price of Rs.1,00,000 was fixed in good faith
or actually paid? OPD
(6) If answer to the above issue is in affirmative then what is the market
value of the suit property? OPP
(7) Whether the plaintiff has got superior right of pre-emption qua the
vender/defendant? OPP
(8) Relief.
RELEVANT PROVISIONS
CONSTITUTION OF PAKISTAN 1973 – ARTICLE 189 PUNJAB PRE-EMPTION ACT
(IX OF 1991) – SS. 13 AND 30 CONSTITUTION OF PAKISTAN (1973) – ARTICLE
185(3)
ARGUMENTS OF FIRST PARTY

Mr. Hasnat Ahmad Khan, Advocate Supreme Court appearing on behalf of
the appellant submitted that mentioning the name of the informer, the date,
time and the place where such information was received or conveyed to the
pre-emptor was necessary requirement of law for establishing making of
Talb-i-Muwathibat and in their absence the pre-emptor could not succeed in
establishing making of Talb-e-Muwathibat in accord with law. It was further
submitted by him that mentioning of exact date and time of receiving
information of sale was also necessary as period of limitation for making
Talb-e-Ishhad and filing the suit is to be computed from the date of Talb-e-
Muwathibat. He further submitted that the omission to mention the date and
time of information of sale of the property as well as failure to disclose the
name of the informer would be fatal to the suit of the respondent, thus, the
trial and Appellate Courts were justified in dismissing the suit but the High
Court erred in setting aside the judgments and decrees of both the Courts
below and decreeing the suit of the respondent. In support of his above
contentions he placed reliance on the cases
(i) Sardar Ali and others v. Additional Secretary Home and T.A.
Department and others1996 SCMR 1480
(ii) Khairullah v. Sultan Muhammad and another1997 SCMR 906
(iii) Haji Qadir Gul v. ,Moembar Khan and another1998 SCMR 2102
(iv) Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315
(v) Akbar Ali Khan v. Mukamil Shah and others 2005 SCMR 431
(vi) Muhammad Siddique v.Muhammad Sharif and others 2005 SCMR 1231
(vii) Fazal Subhan and 11. Others v. Mst. Sahib Jamala and others PLD 2005
SC 977.
ARGUMENTS OF SECOND PARTY

Mr. Mehinoodui Islam, Advocate-on-Record appearing on behalf of the
respondent controverted the arguments advanced by Mr. Hasnat Ahmad
Khan and supported the judgment of the High Court. He submitted that- it
was not imperative for the pre-emptor to disclose the date and time of
receiving the information of sale, of the property either in the notice issued
for Talb-i-Ishhad or in the plaint and the requirement of law of pre-emption
relating to the disclosure of date, time and place of receiving the information
would be sufficiently complied with by mentioning the date and time in the
plaint. He further submitted that bn account of omission or failure of
respondent to mention the name of the informer and date arid time of
receiving .the information of sale would not be fatal to the suit of the
respondent and the trial Court as well as Appellate Court committed serious
illegality in dismissing the suit of the respondent which illegality was
rectified by the High Court in exercise of its revisional jurisdiction by setting
aside the judgments and decrees of the trial and Appellate Courts and
decreeing the suit of the respondent. In support of his above contentions he
placed reliance on the cases
(i) Chaudhry Muhammad Saleem v. Fazal Ahmad .and 2 others 1997

SCMR 315
(ii) Abdul Malik v. Muhammad Latif 1999 SCMR 717
(iii) Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958,
(iv) Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs
2000 SCMR 314
(iv) Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 (vi)
Azmatullah through L.Rs. v. Klst. Hameeda Bibi and others 2005 SCMR
1201.
Judgment
SAIYED SAEED ASHHAD, J.- Appellant being aggrieved with the judgment of
Lahore High Court, dated 2 nd November, 1999 in Civil Revision No. 1226 of
1998 filed a petition for leave to appeal. Leave to appeal was granted to
consider the following question:-
“Whether in view of the findings of the Courts as to equal rights of the

parties qua the suit-land, the civil suit of the respondent could be decreed
against the petitioner for whole of the suit, property
Vide order, dated 4-3-2003 leaive tcj appeal was granted to consider
whether in view of the findings of the Courts as to equal rights of the parties
qua the suit-land, the civil suit of the respondent could be decreed against
the petitioner for whole of the suit property. It appears that, at the time
when the arguments were advanced for the grant of leave to appeal Mr.
Hasnat – Ahmad Khan had not raised the. Above, issues/ questions.
However, in view of the use of the words “inter alia” in the leave granting
order, this Court would not be precluded or estopped from considering the
above issues/questions. After examining the above questions exhaustively in
the light of the pronouncements of this Court both in support and against
the issues/questions involved which would be sufficient to come to just,
proper and valid decision it is not considered necessary to deal with the
question on which the leave was granted. For the above course, it will be
appropriate to refer to the case of Ghulam Jillani and 3 others v. Ghulam
Muhammad and 7 others 1991 SCMR 2001.
For the foregoing facts, reasons and discussion it is held that High Court had
erred in setting aside the concurrent findings of two Courts below. Thus, this
appeal is found to merit consideration. Accordingly, it is allowed and the
judgment of Lahore High Court, dated 2-11-1999 is set aside and the
judgment and decree of learned Civil Judge, Kharian is restored. Parties are
left to bear their own costs.
REFERENCES
Constitution of Pakistan 1973, Article 189: Any decision of the Supreme Court
shall, to the extent that it decides a question of law or is based upon or
enunciates a principle of law, be binding on all other Courts in Pakistan.
Punjab Pre-emption act (IX of 1991)-S 13: Demand of pre-emption.— (1) The
right of pre-emption of a person shall be extinguished unless such person
makes demands of pre-emption in the following order, namely.
(I) Talb-i-muwathibat means immediate demand by a pre-emptor, in the

sitting or meeting (Majlis) in which he has come to know of the sale,
declaring his intention to exercise the right of pre-emption.
Note:- Any words indicative of intention to exercise the right of pre-emption

are sufficient.
(II) Talb-i-ishhad means demand by establishing evidence.
(II) Talb-i-khusumat means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of pre-emptor
through any source, he shall make talb-i-muwathibat.
(3) Where a pre-emptor has made talb-i-muwathibat under sub-section

(2),he shall as soon thereafter as possible but not later than two weeks from
the date of knowledge make talb-i-ishhad by sending a notice in writing
attested by two truthful witnesses, under registered cover acknowledgement
due, to the vendee, confirming his intention to exercise the right of pre-
emption:
Provided that in areas where owing to lack of post office facilities it is not
possible for the pre-emptor to give registered notice, he may make talb-i-
ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat
under sub-section (2) and talb-i-ishhad under the sub-section (3), he shall
make talb-i-khusumat in the court of competent jurisdiction to enforce his
right of pre-emption.
Punjab Pre-emption act (IX of 1991)-S 30: Limitation The period of limitation
for a suit to enforce a right of pre-emption under this Act shall be four
months from the date.
(a) Of the registration of the sale deed

(b) Of the attestation of the mutation, if the sale is made otherwise
than through a registered sale deed
(c)on which the vendee takes physical possession of the property if the sale
is made otherwise than through a registered sale deed or a mutation or
(d) Of knowledge by the pre-emptor, if the sale is not covered under

paragraph (a) or paragraph (b) or paragraph (c).
Constitution of Pakistan 1973,Article 185(3): An appeal to the Supreme Court

from a judgment, decree, order or sentence of a High Court in a case to
which clause (2) does not apply shall lie only if the Supreme Court grants
leave to appeal.
You’re anyou’re analysis / Opinion:

The case of SARDAR MUHAMMAD NAWAZ APPELLANT VERSUS . MST.
FIRDOUS BEGUM RESPONDENT highlights the critical importance of legal
formalities in the execution of Punjab Pre-emption act 1991.It is a right
whereby the owner of an immovable property possesses or acquires, by
purchase, another immovable property that has been sold to another person.
In my opinion, the ruling serves as a reminder of the necessity for clarity and
adherence to legal procedures in a right of Pre-emption matters. The
judgment also underscores the significance of protecting the right of Pre-
emption free from undue influence.

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Journal

2008 SCMR 404

(2) Whether the plaintiff made necessary legal Talbs? OPP

ARGUMENTS OF FIRST PARTY

ARGUMENTS OF SECOND PARTY

(i) Chaudhry Muhammad Saleem v. Fazal Ahmad .and 2 others 1997

“Whether in view of the findings of the Courts as to equal rights of the

(I) Talb-i-muwathibat means immediate demand by a pre-emptor, in the

Note:- Any words indicative of intention to exercise the right of pre-emption

(II) Talb-i-ishhad means demand by establishing evidence.

(II) Talb-i-khusumat means demand by filing a suit.

(3) Where a pre-emptor has made talb-i-muwathibat under sub-section

(a) Of the registration of the sale deed

(d) Of knowledge by the pre-emptor, if the sale is not covered under

Constitution of Pakistan 1973,Article 185(3): An appeal to the Supreme Court

You’re anyou’re analysis / Opinion:

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