Summary: Summary pending.

Summary: (a) Punjab Pre-emption Act, 1991 ---- ----S. 13—Talb-i-Muwathibat—Immediacy and substance of declaration—Form not prescribed but intent must be unequivocal—Plaintiff claimed that upon receiving information of the sale at 07:00 a.m. on 07-06-2001 he made Talb-i-Muwathibat; informer (PW-3) stated he learnt of the sale at his uncle’s dera with 15–20 houses between that dera and plaintiff’s, indicating lapse of time before any intimation—Further, the plaintiff’s utterance, as proved (“… بس خواہش ظاہر کی …”), reflected only a desire to pre-empt, not a clear, immediate assertion of the right—Held, requirements of S. 13 were not met; mere expression of desire is insufficient and the immediacy stood compromised. (b) Pre-emption—Proof of talbs—Standard—Where evidence creates doubt about whether Talb-i-Muwathibat was promptly and properly made, the doubt enures to the benefit of the vendee—Plaintiff failed to discharge the onus to prove a valid and immediate Talb-i-Muwathibat on the facts. (c) Civil procedure—Concurrent findings—Interference—Where courts below misapplied S. 13 or relied on doubtful proof of the foundational talb, interference is warranted—Concurrent decrees for pre-emption set aside. Held, that the plaintiff did not prove a valid Talb-i-Muwathibat; benefit of doubt goes to the vendees. Petition converted into appeal and allowed; judgments and decrees of the courts below set aside; pre-emption suit dismissed, no order as to costs.

Summary: (a) Khyber Pakhtunkhwa Pre-emption Act, 1987 — Ss. 2(d) & 5 — “Sale” and “exchange” — Distinction — Burden of proof — Right of pre-emption — Scope. Under S. 5 of the Act, the right of pre-emption arises only in the case of a sale, defined in S. 2(d) as a permanent transfer of ownership of immovable property in exchange for valuable consideration, excluding agricultural land exchanged for better management. Where the vendee claimed that the impugned transaction was an exchange, the pre-emptor was required to establish, through cogent evidence, that the exchange was a disguised sale intended to defeat his pre-emptive right. — Held, that the burden of proof lay squarely on the pre-emptor; failure of the defendant to establish bona fide exchange did not, by itself, convert the transaction into a sale. The mere allegation that the mutation was in substance a sale, unsupported by evidence of price or consideration, was insufficient to attract pre-emption. — Trial Court and High Court misdirected themselves by focusing on the defendant’s evidence rather than examining whether the plaintiff discharged his burden. — Principle reaffirmed that right of pre-emption, being a restriction on ownership and a clog on alienation, must be strictly construed. (b) Pre-emption — Exchange — Determination — Question of fact and law — Requirement of pleading and proof. Whether an ostensible exchange in mutation was in reality a sale is a mixed question of law and fact which must be properly pleaded with material facts in the plaint and proved by substantive evidence. The plaintiff’s omission to deny that the transaction was made for better management, as recited in the mutation, coupled with absence of proof of price payment or promise thereof, rendered the plea of sale unsubstantiated. (c) Evidence — Mutation — Testimony of Patwari — Effect. Patwari (PW-2), during examination-in-chief, unequivocally confirmed that the transaction recorded in mutation No. 3437, dated 05-11-2008, was an exchange. His testimony supported the defendant’s stance and demolished the plaintiff’s assertion of sale. (d) Pre-emption — Nature and limitations. Right of pre-emption is not a matter of grace but a statutory right exercisable strictly within the parameters prescribed by law. It cannot be extended to transactions other than sale, nor can courts infer sale from ambiguous circumstances. When the evidence admits of multiple interpretations, the one that does not fetter the owner’s freedom of transfer should prevail. (e) Result — Decrees of courts below — Concurrent findings — Interference by Supreme Court. Concurrent findings of the trial, appellate, and High Courts were based on misreading of evidence and misapplication of law; therefore, Supreme Court rightly set aside those decrees, holding that the transaction was a genuine exchange, not a sale, and the plaintiff had no right of pre-emption. Disposition. Petitions converted into appeals. — CPLA No. 4649/2022 (by pre-emptor) dismissed. — CPLA No. 561/2023 (against pre-emptor) allowed. — Plaintiff’s suit dismissed. — No order as to costs. Held: Transaction held to be an exchange — no right of pre-emption available — appeals allowed accordingly.

Summary: (a) Civil Procedure—Doctrine of Lis Pendens—Transfer of Property Act, 1882, S. 52—Sale during pendency of pre-emption suit—Applicability of doctrine to restored suits Respondents No. 2 to 4 purchased suit land during the pendency of a pre-emption suit that had been restored after earlier dismissal for non-prosecution. The Supreme Court held that under the doctrine of lis pendens (Section 52, Transfer of Property Act), such purchasers are bound by the outcome of the ongoing litigation. Held: Restoration of suit relates back to its original filing; thus, any sale during the pendency—even after a temporary dismissal—is subject to lis pendens. Cited Cases: Basit Sibtain v. Muhammad Sharif (2004 SCMR 578) Malik Amanullah v. Haji Muhammad Essa (2024 SCMR 1258) (b) Bona Fide Purchaser—Transfer by ostensible owner—TPA, S. 41—No shield against lis pendens Even a bona fide purchaser without notice is bound by the result of pending litigation. The Court reaffirmed that the doctrine of lis pendens is not based on notice but on the principle of finality in litigation. Held: Transferee steps into shoes of transferor and cannot escape legal consequences of the pending suit. Cited Cases: Muhammad Nawaz Khan v. Muhammad Khan (2002 SCMR 2003) Muhammad Ashraf Butt v. Muhammad Asif Bhatti (PLD 2011 SC 905) Tabassum Shaheen v. Uzma Rahat (2012 SCMR 983) Aasia Jabeen v. Liaqat Ali (2016 SCMR 1773) (c) Practice and Procedure—High Court’s remand order set aside—Suit for pre-emption restored The High Court’s decision to remand the case for fresh evidence on merits was held erroneous. The Supreme Court restored the trial court’s decree dated 22.01.2008, which had been passed after the plaintiff deposited the sale consideration in full. Held: High Court committed legal error by disregarding lis pendens and disrupting the finality of the trial court’s decree. Disposition: Appeal allowed. High Court’s impugned order dated 12.07.2010 set aside. Trial court’s decree dated 22.01.2008 restored.

Summary: (a) Khyber Pakhtunkhwa Pre‑emption Act, 1987 --- S. 13 (Talbs) --- Talb‑i‑Muwathibat—Proof of informer—Failure fatal— Appellant claimed he proclaimed his intention to pre‑empt immediately upon learning of the sale from one Akbar Shah, yet never produced the informer in evidence. Supreme Court held the foundational requirement of naming and examining the informer is mandatory; non‑production leaves time, place, and mode of knowledge uncorroborated, attracting an adverse presumption. Concurrent findings upholding performance of Talb‑i‑Muwathibat were founded on mis‑reading of evidence and were rightly reversed in revision. Cited cases: Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491; Subhanuddin v. Pir Ghulam PLD 2015 SC 69. (b) Pre‑emption—Shafī‑e‑Khalīt (contiguous owner) —Requirement of strict contiguity— Local commission and CWs confirmed Khasra No. 225, recorded as “Chair Mumkin Nijji Raasta” (private passage), lay between appellant’s Khasra No. 226 and the suit Khasra No. 223/1. Mere building a retaining wall or exercising possessory control over part of another Khasra does not create contiguity absent ownership. Trial and appellate courts ignored this critical fact; High Court correctly held appellant was not a Shafī‑e‑Khalīt. (c) Pre‑emption—Shafī‑e‑Jār (common irrigation) —Topographical bar— Appellant’s field lay at a markedly higher elevation than the communal water channel; irrigation from the claimed source was physically impossible. Absence of common source negated status as Shafī‑e‑Jār. Findings of courts below were perverse and liable to correction. (d) Talb‑i‑Ishhād—Statutory mode of notice— Appellant admitted he did not dispatch the notice himself; alleged intermediary (Akbar Shah) not produced; notice was not sent by registered post with acknowledgment‑due as expressly required by S. 13(3) of the 1987 Act. Procedural non‑compliance rendered Talb‑i‑Ishhād invalid. (e) Civil Procedure Code, 1908 --- S. 115—Revisional jurisdiction—Scope to upset concurrent findings— Where trial and first appellate courts commit non‑reading, mis‑reading, or misconstruction of material evidence, High Court may justifiably exercise revisional powers to rectify the error and prevent miscarriage of justice. Impugned revision fell squarely within this ambit. Disposition: Appeal dismissed; High Court judgment dated 15‑06‑2016 upheld; appellant’s suit for pre‑emption finally dismissed.

Summary: (a) Khyber Pakhtunkhwa Pre‑emption Act, 1987 --- S. 13—Talb‑i‑Muwathibat—Production of informer—Mandatory nature— The pre‑emptor testified that he learned of the impugned sale on 25‑07‑2010 from one “Umar” and immediately voiced his intention before two witnesses (PW‑2 & PW‑3). Umar—the sole source of knowledge—was never produced, nor was his absence explained. Supreme Court reiterated that the informer’s examination is foundational: without it, time, place, and mode of knowledge remain uncorroborated, rendering the Talb‑i‑Muwathibat unproved. A three‑month gap between mutation (10‑04‑2010) and alleged knowledge further eroded credibility. Concurrent findings of trial and appellate courts upholding Talb were based on non‑reading of critical evidence and were rightly set aside by the High Court. Cited cases: Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491; Subhanuddin v. Pir Ghulam PLD 2015 SC 69. (b) Civil Procedure Code, 1908 --- S. 115—Revisional jurisdiction—Scope to reverse concurrent findings— Where lower courts ignore material defects—misreading, non‑reading, or misconstruction of evidence—High Court may lawfully intervene in revision. Failure to establish statutory pre‑conditions for pre‑emption is a jurisdictional error going to the root of the decree; hence High Court’s interference was proper. (c) Pre‑emption—Promptness and credibility of Talb— Lapse of more than three months between sale mutation and alleged first demand negates the statutory requirement of immediacy; absence of corroboration through the informer renders witnesses’ testimony insufficient. Strict compliance is sine qua non; benefit of doubt goes against pre‑emptor. Disposition: Appeal dismissed; Peshawar High Court judgment dated 21‑10‑2016 upheld; respondent’s suit for pre‑emption finally dismissed.

Summary: (Against the judgment dated 29.05.2023 of the Peshawar High Court, D.I.Khan Bench passed in Civil Revision No. 140-D of 2015 with Civil Misc. Nos. 144-D of 2015, 148-D of 2019 and 95-D of 2020). Khyber Pakhtunkhwa Pre-emption Act (X of 1987)--- ----Ss. 13(3), 15 & 19---Suit for possession through pre-emption---Talb-i-Ishhad---Notice not served under registered cover acknowledgment due---Mentioning of wrong mutation number--- Partial pre-emption---Effect---Concurrent findings of facts by all Courts below---Petitioner / pre-emptor was aggrieved of dismissal of his suit by all Courts below---Validity---Pre-emptor was required under Section 13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987, to make Talb-i-Ishhad soon after making of Talb-i-Muwathibat, not later than two weeks from the date of knowledge, by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to vendee, confirming his intention to exercise right of pre-emption---Merely sending a notice in writing without establishing that such notice had been duly served upon vendee under registered cover acknowledgment due did not meet the requirement of law---Notice issued by petitioner / pre-emptor to respondent / vendee did not contain correct number of mutation---High Court was justified to conclude that petitioner / pre-emptor did not perform Talb-i-Ishhad against respondent / co-vendee with regard to property purchased through mutation---It had become partial pre-emption and bar on such pre-emption case in terms of Section 19 of Khyber Pakhtunkhwa Pre-emption Act, 1987, was also attracted---Such omission by pre-emptor constituted waiver on the part of pre-emptor to pre-empt sale in view of Section 15 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Supreme Court declined to interfere in judgments and decrees passed by the Courts below---Petition for leave to appeal was dismissed and leave to appeal was refused. M. Anwar Awan, Advocate Supreme Court for Petitioner. Nemo for Respondents. Date of hearing: 7th April, 2025.

Summary: (a) Punjab Pre-emption Act (IX of 1991)--- ----S. 13---Suit for possession through pre-emption---Right of pre-emption---Talb-i-Muwathibat---Delay in making such demand---Effect---Petitioner/vendee was aggrieved of judgment and decree passed by Lower Appellate Court whereby suit was decreed in favour of respondent/pre-emptor---Validity---As regards the first Talb i.e. Talb-i-Muwathibat, statement of pre-emptor was relevant wherein he admitted in cross-examination that he had gained knowledge of the sale after filing of the suit---Pre-emptor also admitted that he had filed another suit for pre-emption against the petitioners/defendants--- Said stance of the respondent/plaintiff as to knowledge was corroborated by the informer---According to the statement of informer, the knowledge about the sale was gained about 4.5 years ago---Said statement was made by informer on 16.02.2012---Thus, if time was calculated from the date of statement, it would come around 16.07.2007, which furnished a ground to believe that no meeting was held for Talb-i-Muwathibat and it was not performed---Possession of the suit property was delivered on the date of sale, which was a notice to public at large---Hence, the pre-emptor had, for all practical purposes, gained the knowledge immediately but did not make a jumping demand---Such delay was fatal to a successful claim of pre-emption---Respondent/plaintiff (pre-emptor) had failed to prove performance of the essential conditions attached to the exercise of right of pre-emption---As a result, claim of pre-emption could not hold field for not having qualified the mandate of law under the Act, in terms of making of Talbs---Consequently, civil revision was allowed, accordingly. Arshad Iqbal v. Muhammad Hayat 2017 YLR 2358 and Sher Ayaz Khan alias Sheraz Khana, through LRs and others v. Gul Najeeb Khan 2025 SCMR 380 rel. (b) Punjab Pre-emption Act (IX of 1991)--- ----S. 13(3)---Suit for possession through pre-emption---Right of pre-emption---Talb-i-Ishhad, notice of---Proof---Names of witnesses of Talb-i-Ishhad notice not mentioned in the plaint---Fatal defect---Petitioner/vendee was aggrieved of judgment and decree passed by Lower Appellate Court whereby suit was decreed in favour of respondent/pre-emptor---Validity---Record reflected that no date of Talb-i-Ishhad was mentioned in the plaint, which made it uncertain whether the same was made within two weeks as required under S.13(3) of the Act---Non-mentioning of exact time of notice of Talb-i-Ishhad in the plaint was fatal for the cause of the respondent/plaintiff---As borne out from the evidence, the fulfillment of condition of Talb-i-Ishhad, by way of service of notices, got sketchy, inter-alia, in terms of statement made by postman---Talb-i-Ishhad was to be established by way of a solid piece of evidence led by the respondent/plaintiff---Plaint did not disclose any details regarding Talb-i-Ishhad with respect to its performance, which was fatal to the case of the respondent/plaintiff---Admittedly, the petitioners/defendants were minors---Statement of post man did not mention as to where the service was made on the said minors, or it was made on anyone else on their behalf, nor was there any e ndorsement of refusal on the envelope or the acknowledgment due--- Respondent/plaintiff admitted that the original notices were not sent---According to the statements of witnesses, the notices were written by hand---Talb-i-Ishhad or demand by establishing evidence means calling of two witnesses by pre-emptor to attest his making of the first demand/ Talb-i-Muwathibat in order to strengthen his claim of pre-emption---Mandatory upon the pre-emptor to have stated the names of witnesses for Talb-i-Ishhad in the plaint and then prove their attestation by producing them in the Court---From the perusal of the plaint, it appeared that no such disclosure had been made by the respondent/plaintiff---Said omission was again fatal to the claim of the respondent/plaintiff---Respondent/plaintiff (pre-emptor) had failed to prove performance of the essential conditions attached to the exercise of right of pre-emption---As a result, claim of pre-emption could not hold field for not having qualified the mandate of law under the Act, in terms of making of Talbs---Consequently, civil revision was allowed, accordingly. Ghafoor Khan (deceased) through LRs v. Israr Ahmed 2011 SCMR 1545; Mian Pir Muhammad and another v. Faqir Muhammad through LRs and others PLD 2007 SC 302; Muhammad Riaz v. Muhammad Akram and others 2024 SCMR 692; Mir Muhammad Khan and 2 others v. Haider and others PLD 2020 SC 233; Kashmali Khan and others v. Mst. Malala 2023 SCMR 1176 ;Khan Afsar v. Afsar Khan and others 2015 SCMR 311; Munawar Hussain and others v. Afaq Ahmed 2013 SCMR 721 and Kashmali Khan and others v. Mst. Malala 2023 SCMR 1176 rel. Malik Muhammad Arshad Awan for Petitioners. Syed Ali Raza Gillani for Respondent. Date of hearing: 13th March, 2025. Judgment Hassan Nawaz Makhdoom, J .--- This revision petition assails the judgment and decree dated 07.08.2013 ("impugned judgment") passed by the Additional District Judge, Shorekot ("Appellate Court") whereby Trial Court's judgment and decree dated 18.09.2012 ("Trial Court's Judgment") passed by the Civil Judge 1st Class, Shorkot ("Trial Court") was reversed. 2. This civil revision arises out of a suit for possession through pre-emption ("the suit") under the Punjab Pre-Emption Act, 1991("the Act"). Brief facts of the case are that Muhammad Waris ("respondent/plaintiff") filed the suit against Muhammad Nawaz and two others ("petitioners/defendants") of property measuring 2-Kanals, 04 Marlas, description whereof is given in paragraph-1 of the plaint. The contentions raised in the said suit was that Talib Hussain son of Zulfiqar was owner of the suit property, from whom the petitioners/defendants purchased the same through Mutation No.1333 dated 24.04.2007 ("Mutation") for consideration of Rs.65000/-. However, in order to defeat the pre-emptive right of the respondent/plaintiff an inflated sale price of Rs.100,000/- was recorded in the Mutation, which was kept in secret by the petitioners/defendants. The knowledge of the sale was gathered by the respondent/plaintiff on 06.08.2007 at 9:00 a.m. in presence of Gada Hussain son of Muhammad Nawaz Hussain and Ch. Nazir Ahmed son of Barkat Ali, who were present at Dera situated at Chahianwala where Ghulam Shabir son of Sultan came and told the respondent/plaintiff that the petitioners/defendants had purchased the suit property. The respondent/plaintiff had immediately announced his right of pre-emption and made Talb-i-Muwathibat. Thereafter, the respondent/plaintiff made notice of the Talab-i-Ishhad through registered post to the petitioners/defendants, claiming to have a superior right of pre-emption and upon no reply to the same, the respondent/plaintiff filed the suit. The suit was met by a contesting written statement filed by the petitioners/defendants. Upon divergent pleadings, nine issues were framed and the parties were put to trial. The material and most significant issue for determination of the instant revision petition is: II) Whether the plaintiff has fulfilled the prerequisite of Talbs in accordance with Islamic law of pre-emption? OPP. 3. The parties led their respective evidence in trial whereafter the Trial Court dismissed the suit of the respondent/plaintiff vide judgment dated 18.09.2012. The respondent/plaintiff, being aggrieved by the above judgment, preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 ("C.P.C."). The said appeal was allowed by the Appellate Court vide impugned judgment dated 07.08.2013. As a result, the suit filed by the respondent/plaintiff against the petitioners/defendants was decreed. Hence, the instant revision petition. 4. Learned counsel for the petitioners/defendants submitted that the respondent/plaintiff has completely failed to prove the Talbs in accordance with Section 13 of the Act. Further submitted that the Trial Court vide judgment dated 18.09.2012 has rightly appreciated the facts, circumstances and evidence of the case and thereby has correctly reached at the conclusion that the respondent/plaintiff failed to prove the required Talbs. In addition, it is submitted that the Appellate Court, while passing the impugned judgment dated 07.08.2013, has fell in complete error of fact and of law, which led the Appellate Court to pass the judgment impugned herein. It is reiterated on behalf of the petitioner that the Appellate Court has completely ignored the fact finding recorded by the Trial Court, relating to performance of Talbs as required under the law. 5. Conversely, learned counsel for the respondent/plaintiff has supported the judgment passed by the Appellate Court dated 07.08.2013. He added that the performance of Talbs, as required by the law, have clearly been established from the record and the contrary finding, as recorded by the Trial Court is nullity in the eye of law. 6. Arguments heard. Record perused. 7. It is a settled position of law that a pre-emptor must prove the essential ingredients for the exercise of such right in accordance with the provisions of Section 13 of the Act. It is also imperative that the performance of Talbs must be observed in true and complete letter and spirit. Such right of pre-emption is strictissimi juris (strict rule of law) and even a slightest non-adherence or deviation from the formalities required by law prevents its accrual 1 . At this juncture, it is necessary for this Court to examine and ascertain whether the Talbs, as mandated under Section 13 of the Act, have been made. As regards, the first Talb i.e. Talb-i-Muwathibat, statement of pre-emptor as PW-2 (Muhammad Waris) is relevant wherein he admitted in cross-examination that he had gained knowledge of the sale after filing of the suit. In the next three lines, he also admitted that he had filed another suit for pre-emption against the petitioners/defendants. The above said stance of the respondent/plaintiff as to knowledge is corroborated by the informer, who appeared as PW-3. According to the statement of PW-3, the knowledge about the sale was gained about 4.5 years ago. This statement was made by PW-3 on 16.02.2012. Thus, if time is calculated from the date of statement, it comes around 16.07.2007, which furnishes a ground to believe that no meeting was held for Talb-i-Muwathibat and it was not performed. As per Exh-P7, possession of the suit property was delivered on the date of sale, which is a notice to public at large 2 . Hence, the pre-emptor has, for all practical purposes, gained the knowledge immediately but did not make a jumping demand. Such delay is fatal to a successful claim of pre-emption 3 . Now adverting to Talb-i-Ishhad, with respect to which the position of law is well settled to the effect that if the date of Talb-i-Ishhad and names of witnesses are not mentioned in the plaint, it is fatal for a suit of pre-emption 4 . The record also reflects that no date of Talb-i-Ishhad is mentioned in the plaint, which makes it uncertain whether the same was made within two weeks as required under Section 13(3) of the Act. It is reiterated that non-mentioning of exact time of notice of Talb-i-Ishhad in the plaint is fatal for the cause of the respondent/plaintiff. As borne out from the evidence, the fulfillment of condition of Talb-i-Ishhad, by way of service of notices, gets sketchy, inter-alia, in terms of statement made by PW-1 (postman). It is noteworthy that Talb-i-Ishhad is to be established by way of a solid piece of evidence led by the respondent/plaintiff. A careful examination of the plaint does not disclose any details regarding Talb-i-Ishhad with respect to its performance. This fact is also fatal to the case of the respondent/ plaintiff. Admittedly, the petitioners/defendants No.2 and 3 are minors. The statement of postman, who appeared as PW-1 did not mention as to where the service was made on the said minors or it was made on anyone else on their behalf, nor is there any endorsement of refusal on the envelope or the acknowledgment due, as reflected by Ex.P1 to Ex.P6. It was necessary for the service to be effected on the parties concerned 5 . As per statement of PW-2 (respondent/plaintiff), available on record, he admitted that the original notices were not sent. According to the statements of PW-2, 3 and 4, the notices were written by hand. After having considered the defects in discharge of Talb-i-Muwathibat and Talb-i-Ishhad, now it is important to see the effect of defective performance of Talb-e-Ishhad. Talb-i-Ishhad or demand by establishing evidence means calling of two witnesses by pre-emptor to attest his making of the first demand/Talb-i-Muwathibat in order to strengthen his claim of pre-emption. It is mandatory upon the pre-emptor i.e. respondent/ plaintiff, to have stated the names of witnesses for Talb-i-Ishhad in the plaint and then prove their attestation by producing them in the Court. Upon careful perusal of the plaint, it appears that no such disclosure has been made by the respondent/plaintiff of the names of witnesses of Talb-i-Ishhad. This omission is again fatal to the claim of the respondent/plaintiff 6 . 8. In view of the above discussion, it is concluded that the respondent/plaintiff (pre-emptor) has failed to prove performance of the essential conditions attached to the exercise of right of pre-emption. As a result, his claim of pre-emption cannot hold field for not having qualified the mandate of law under Section 13 of the Act, in terms of making of Talbs. Consequently, this civil revision is allowed and impugned judgment and decree dated 07.08.2013 passed by the Appellate Court is set aside. No order as to costs. JK/M-109/L Revision allowed.

Summary: (a) Islamic law--- ----Right of pre-emption---Whether inheritable or not---Right of preemption will run with the land and is not personal for the purposes of its enforceability in a Court of law---In other words, the right of pre-emption is to be personal to a preemptor until a decree is passed in his favour and, during that interregnum, said right is neither transferable nor in heritable---In such a situation if the preemptor dies before obtaining a decree in his favour in the Trial Court or the appellate or Revisional Court, his right of preemption shall remain exclusively personal and shall not survive to his heirs---But no sooner a decree is passed in favour of the pre-emptor than the right becomes a proprietary one and is capable of not only being transferred but also inheritable as well. Muhammad Yousaf alias Yousaf Ali v. Talib Hussain 2012 SCMR 1185 Noor and others v.Mst. Sattan through Legal Representatives and others PLD 2013 Lah. 30; Maqsood Ahmed and others v. Member Board of Revenue Punjab Lahore and others 2007 SCMR 399 and Fateh Khan v. Boze Mir PLD 1991 SC 782 rel. (b) Islamic law--- ----Pre-emption suit---Possession through pre-emption---Sale price, determination of--- Appellants had acquired the subject property against whom and the other respondents, the respondent No. 1, initiated proceedings for claiming his right of pre-emption---Said proceedings were decreed by the Trial Court which was upheld by the first appellate Court---Validity---In the present case, record showed that the Trial Court had preferred to keep the price as was up in 1987 which could never be entertained as inflation was an ever visible element and the amount required to be deposited in year 2013 could not by any stretch of imagination be considered as adjustable amount that was paid in 1987---Revision was allowed, in circumstances. (c) Islamic Law--- ----Pre-emption suit---Possession through pre-emption---Right of pre-emption---Talb-i-Muwathibat not proved---Appellants had acquired the subject property against whom and the other respondents, the respondent No. 1, initiated proceedings for claiming his right of pre-emption---Said proceedings were decreed by the Trial Court which was upheld by the first appellate Court---Validity---Record showed that a witness said to have been present at the time of first Talb though had died, but the claimant of the pre-emption preferred never to bring any secondary evidence in that regard---In the cross-examination, the appellant and the seller both had stated that no first Talab was made and irrespective of the contentions raised in the written statement, which were apparently never confronted to the witness, the material in record did not show that the respondent No.1 was able to prove that the first Talb was ever made---In the said circumstances the decree of preemption was not available---Revision was allowed, in circumstances. Imdad Ali Memon for Applicants. Barrister Jawad Ahmed Qureshi for Respondents Nos. 1 and 2. Date of hearing: 7th March, 2025. Judgment Mahmood A. Khan, J .--- In this revision application, the last judgment passed by the appellate Court as well as trial Court has been impugned in the proceedings of Civil Appeal No.59 of 2013 and F.C Suit No.31 of 1983, wherein the applicants are the persons who have acquired the subject property against whom and the other respondents, the respondent No.1 initiated proceedings for claiming his right of preemption. The said proceedings were decreed by the learned trial Court which was up-held where-after approach at the appellate stage as well as to this Court was made and thereafter to the Honourable Supreme Court leave was granted by order dated 02.04.2010. The matter was finally heard on 16.05.2013, when it was remanded and apparently the remand order required apart from the questions of grant of leave referred above (as the Honourable Supreme Court had preferred not to reply to the same) along with the points i.e. the decree is to be passed in terms of Order XXII Rule 14 C.P.C and to question whether the right of preemptor after his death survived or not to be decided by the trial Court as well as appellate Court. 2. It also bears from the record that the original decree in the matter had not provided the date of deposit of the amount after the matter having been remanded the learned trial Court decreed the suit at the same amount as earlier considering that the appellant has enjoyed the benefit of availing possession although discussed the inflation of prices and the original price not being available. Whereas the learned appellate Court had preferred not to discuss the forgiving points as referred above nor discussed the element of price. It also bears from the record that the amount required by the decree was deposited on 17.08.2013. It has also come on record that the persons claiming preemption right had expired on 22.07.2002. 3. On the earlier date, I had specifically called upon the learned counsel(s) for the assistance as to the preemption right liable for inheritance as under Muslim Law such right is not open to inheritance. Learned counsel for the applicants had relied upon the following authorities in this regard and has further contended that the question of witness at the first call is also left to be answered which has not been considered by the Courts below, whereas in respect of inheritable right learned counsel has contended that such right not being open is not available. Learned counsel in this regard has relied upon the case of Muhammad Yousaf alias Yousaf Ali v. Talib Hussain reported as [2012 SCMR page 1185). 4. Learned counsel for the respondent No.1 however, contended that the right of inheritance is available and in this regard he has referred to the case of Noor and others v. Mst. Sattan through Legal Representatives and others reported as [PLD 2013 Lahore 30), Maqsood Ahmed and others v. Member Board of Revenue Punjab Lahore and others reported as [2007 SCMR 399] and Fateh Khan v. Boze Mir reported as [PLD 1991 SC 782) and contended that once the decree has been obtained the right is to continue. In respect of the quoted authority of Noor and others v. Sattan through Legal Representatives and others, perhaps the typo has occurred as the case of Arshad Iqbal through LRs v. Abdul Qayyum Khan Babar is written as 1990 CLC page 1883 which ought to have been 1183, wherein it has been held that once a decree has been obtained the legal heirs are liable to obtain benefit. Learned counsel has also placed reliance upon Para 239 of Muhammad Law by Mullahi, claiming that in some conditions it is available. He has also contended that the trial Court in the original has considered that the admission of the seller as to offer made in his written statement Para 5 thereof the cross-examination and evidence irrespective to the statement in deviation thereof coming in the chief no cross-examination was required along with evidence to prove otherwise. 5. Having heard the learned counsel(s) for the parties and gone through the record. As such there are three (03) questions to be answered in the present matter. (1) Whether and in what conditions the inheritable right under a decree of preemption is available? (2) Whether the date of payment of amount as determined by the trial Court is liable to be considered along with the price as given therein? (3) Whether the plaintiff in the matter was able to prove his two required Talbs for the right of preemption. As to the question No.1, the judgment of Arshad Iqbal through LRs v. Abdul Qayyum Khan Babar (mentioned supra) relied upon by learned counsel has held that the right of pre-emption runs with the land and is not personal for the purposes of its enforceability in a Court of law. In other words, the right opmtomies to be personal to a preemptor until a decree is passed in his favour and, during this interregnum, this right is neither transferable nor heritable. In such a situation if the preemptor dies before obtaining a decree in his favour in the trial Court or as the case may be, the appellate or Revisional Court, his right of preemption shall remain exclusively personal and shall not survive to his heirs. But no sooner is a decree passed in favour of the pre-emptor than the right becomes a proprietary one and capable not only to be transferred but to be inherited as well. As such, once a decree has been obtained the determination of right has been made by the Court of law, the same crystallizes to the position that the same can be transferred by a further process, as such, the assignment of decree available under the C.P.C. However, the matter is not limited to the same in the present case the reason being that this right cannot go on indefinite, there has to be a restriction of enforceability accompanying the same. In the present case, where though after the decree the existence of the right to be further processed by the legal heirs cannot be found denied, however, the indefinite element cannot be allowed. The limitation of filing of first execution being three years from the date of a decrec along with the requirement seems to be not required and fulfilled. In the present case, it is as such held that in case the amount of decree that was awarded for the first time in 31.03.1987, had the respondent No.1 preferred to deposit the amount as determined or at least make an approach to the Court within a period of three years, the right that could have existed may have continued; failing which, the right though may be available may not have any force of enforcement which is otherwise the law of limitation in respect of claims that the right exists but the remedy is lost. 6. In the present case it bears from the record that the trial Court has preferred to keep the price as earlier coming up in 1987 which can never be entertained as the inflation is an ever visible element and the amount required to be deposited in year 2013 cannot by any stretch of imagination be considered as adjustable amount that was paid in 1987. The stand that the other party was enjoying the same is not found favourable as the other side never out pocket the price amount and both the parties cannot be provided any benefit or for that matter any law on account of the acts / process of the Courts. 7. In respect to the third question, I have gone through the evidence with the assistance of learned counsel(s) wherein the witness Muhammad Yaqoob said to have being present at the first talb though have died, the claimant of the preemption preferred never to bring any secondary evidence in this regard. In the cross-examination, the appellant and the seller both have stated that no first talab was made and irrespective to the contentions raised in the written statement which were apparently never confronted to the witness the material in record does not show that the respondent No.1 was able to prove that the first talab was ever made and in the said circumstances the decree of pre-emption is not found available also. 8. For the forgiving reasons, this Revision Application stands allowed and consequently both the judgments of the trial Court as well as appellate Court are set-aside. JK/A-49/Sindh Revision allowed

Summary: (a) N.W.F.P. Pre-emption Act, 1987 ----Sec. 13 Talb-i-Muwathibat (immediate demand)---Essence and strict compliance---Impact of delay or consultation. The requirement of Talb-i-Muwathibat mandates an immediate and unequivocal declaration of intent to exercise the right of pre-emption upon gaining knowledge of the sale. Consultation or delay before making the demand renders it invalid. In the present case, the respondent admitted to consulting his brothers before making the demand, which contravenes the immediacy requirement under Sec. 13(2). Such non-compliance invalidates the pre-emption claim. Cited Cases: Bashir Ahmed v. Muhammad Ramzan (2021 SCMR 134) Mir Muhammad Khan v. Haider (PLD 2020 SC 233) ------- (b) Pre-emption law Burden of proof---Chain of information and role of witnesses. To establish a valid pre-emption claim, the pre-emptor must prove a complete and reliable chain of information about the sale, including the source and method of communication. Failure to produce a key witness, such as the informer or postman, leads to an adverse presumption under Art. 129(g) of the Qanun-e-Shahadat, 1984. In this case, the absence of the informer and postman undermined the respondent’s claim of fulfilling Talb-i-Muwathibat and Talb-i-Ishhad. Cited Cases: Muhammad Riaz v. Muhammad Akram (2024 SCMR 692) Mian Pir Muhammad v. Khuda Bukhsh (PLD 2007 SC 302) ------- (c) Qanun-e-Shahadat Order, 1984 ----Art. 129(g) Adverse presumption---Failure to produce key witnesses. When a party fails to produce an essential witness, such as the informer who allegedly communicated the sale or the postman who delivered the notice, courts can draw an adverse presumption that the evidence would not have supported the party’s claim. The respondent’s failure to produce key witnesses invalidated the pre-emption demands. Cited Cases: Allah Ditta v. Muhammad Anar (2013 SCMR 866) Ahmad Bakhsh v. Ameer Ali Khan (2020 SCMR 873) ------- (d) Pre-emption rights Strict compliance with procedure---Impact of flawed Talb-i-Muwathibat on subsequent demands. The right of pre-emption is dependent on strict compliance with the procedural requirements of Talb-i-Muwathibat, Talb-i-Ishhad, and Talb-i-Khusumat. Failure to validly perform Talb-i-Muwathibat nullifies the subsequent demands, as the right rests entirely on the foundational first demand. Cited Cases: Farid Ullah Khan v. Irfan Ullah Khan (2022 SCMR 1231) Subhanuddin v. Pir Ghulam (PLD 2015 SC 69) ------- (e) Procedural fairness Importance of immediacy in Talb-i-Muwathibat---Delay as fatal to pre-emption claims. The statutory requirement for an immediate demand under Talb-i-Muwathibat is fundamental to maintaining a pre-emption claim. Any delay, including a two-hour consultation, negates the immediacy required by law and results in dismissal of the claim. Cited Cases: Muhammad Abaidullah v. Ijaz Ahmed (2015 SCMR 394) Sultan v. Noor Asghar (2002 SCMR 682) ------- (f) Final judgment Appellate and High Court decisions overturned---Trial Court’s dismissal restored. The Supreme Court overturned the judgments of the appellate court and High Court, restoring the trial court’s decision to dismiss the suit. The respondent’s failure to prove Talb-i-Muwathibat rendered the pre-emption suit invalid.