JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT
R.S.A.No.18 of 2009
Abdul Qayyum Khan Versus Sheikh Muhammad Azeem

JUDGMENT
Date of Hearing: 27.01.2017

Appellant (s) for: Mr. Hamid Iftikhar Pannu, Advocate

Respondent(s) for: Syed Kaleem Ahmad Khurhsid and

Mr. Muhammad Akbar Hayat,
Advocates

SHAHID BILAL HASSAN-J: Succinctly, the facts leading

to filing of the instant regular second appeal are as such that the
appellant purchased a shop No.F-426, which was owned by
Noor Jahan Begum and others through a sale deed dated
02.09.2003 in lieu of Rs.500,000/-, however, allegedly
ostensible sale price was shown as Rs.725,000/-, only to debar
the respondent from exercising right of pre-emption. The
respondent allegedly gained knowledge about the transaction in
question on 22.09.2003 through Fateh Muhammad (P.W.2) in
presence of Sheikh Ameer Hashim (P.W.3) and Muhammad
Fayyaz, there and then he made jumping demand, whereafter on
the same day he sent notice of Talb-e-Ishhad (P-1) to the
appellant, but on refusal, he instituted suit for possession on the
basis of pre-emption being Shafi Shareek.
The suit was contested by the appellant through filing
written statement. Out of the divergent pleadings of the parties,
as many as 09 issues including “Relief” were framed by the
learned trial Court. Both the parties were invited to lead their
evidence, which was adduced in pro and contra. The learned
trial Court vide impugned judgment and decree dated
R.S.A.No.18 of 2009 2

08.10.2007 decreed the suit in favour of the respondent and

against the present appellant. The appellant being aggrieved of
the said judgment and decree preferred an appeal, but the same
was dismissed vide impugned judgment and decree dated
11.11.2008.
2. Opening brief the learned counsel for the appellant
has submitted that the impugned judgments and decrees are
against law and facts of the case; the same suffer from gross
misreading and non-reading of the material available on the
record. Contends that the learned Courts below have acted
mechanically while decreeing the suit of the respondent
regarding a commercial property, which is not sustainable in
the eye of law as the learned Courts below have failed to apply
section 3 of the Punjab Pre-emption Act, 1991 in its true spirit,
because the commercial property is not open to pre-emption as
per the spirit of Islamic Law, hence, the transaction was not
pre-emptible. Adds that the right of pre-emption cannot be
enforced in case of commercial properties because a question of
privacy of property or disagreeable neighbor as envisaged by
Islam, does not arise in such case; as such the findings of the
learned Courts below on issues No.1 and 3 are erroneous. States
that the findings on issues No.7 are also not maintainable as the
appellant has proved his stance through confidence inspiring
evidence. Maintains that the learned Courts below have failed
to exercise vested jurisdiction in accordance with law and by
travelling beyond the same, non-suited the appellant mere on
the basis of surmises and conjectures. Submits that even if the
right of pre-emption is admitted for the sake of arguments, the
respondent has failed to perform and prove the requisite talbs as
per mandate of section 13(3) of the Punjab Pre-emption Act,
1991. Therefore, by allowing the appeal in hand, impugned
judgments and decrees may be set aside and suit instituted by
R.S.A.No.18 of 2009 3

the respondent may be dismissed with costs throughout. Relies

on Mst. HAMEEDA BEGUM and others v. Mst. IRSHAD
BEGUM and others (2007 SCMR 996), MUHAMMAD
BASHIR and others v. ABBAS ALI SHAH (2007 SCMR 1105),
BASHIR AHMED v. GHULAM RASOOL (2011 SCMR 762),
ALLAH DITTA through L.Rs. and others v. MUHAMMAD
ANAR (2013 SCMR 866).
3. Contrarily, the learned counsel appearing on behalf
of the respondent by favouring the impugned judgments and
decrees has prayed for dismissal of the appeal in hand. Adds
that in the grounds of appeal it was not alleged that notice was
not received, therefore, this plea cannot be agitated before this
forum. Relies on MUHAMMD FAROOQ v. ABDUL WAHEED
SIDDIQUI and others (2014 SCMR 630), MUHAMMAD
IQBAL v. MEHBOOB ALAM (2015 SCMR 21), DOST
MUHAMMAD (Deceased) through L.Rs. v. MUHAMMAD
YOUSAF and others (2008 SCMR 1339) and ABDUL
REHMAN and others v. MAHAR BAKHSH and others (2005
SCMR 1364).
4. Heard.
5. First of all this court has to dilate upon the
question whether commercial property is pre-emptible or not, as
section 5 of the Punjab Pre-emption Act, 1913 exempts a shop,
Sarai or Katra from the right of pre-emption, whereas section 3
of the Punjab Pre-emption Act, 1991 provides that In the
interpretation and the application of provisions of this Act, the
Court shall seek guidance from the Holy Qur’an and Sunnah,
meaning thereby the interpretation made in this regard in a
reported judgment Haji Muhammad Ameen etc. v. Islamic
Republic of Pakistan and others (PLD 1981 FSC 23) is
applicable to the present case, as when a question with regard
R.S.A.No.18 of 2009 4

to repugnancy of section 5 of the Punjab Pre-emption Act, 1913

came before the Hon’ble Federal Shariat Court, it was held:
‘Now section 5 of the Punjab Pre-emption Act
exempts commercial properties like shop, Sarai or
Katra from the operation of the Act. There is no
specific tradition of the Prophet (p.b.h.) conferring
right of pre-emption on such properties. The
specific right of pre-emption has been held to
accrue on sale of house, garden or land only. For
this reason the provision is not repugnant to the
Sunnah of the prophet. Even otherwise no Zarar is
caused by the sale of such properties to strangers.’
When the above ratio is read with section 3 of the Punjab Pre-
emption Act, 1991 (prevalent Act), it can safely be observed
and held that the commercial properties are not pre-emptible;
even otherwise, the right of Pre-emption is only to safeguard
the privacy of Muslim families and the same cannot be enforced
in case of commercial properties because the question of
disagreeable neighbor in such cases does not arise. In this
regard reliance can safely be placed on Government of N.-
W.F.P. through Secretary, Law Department v. Malik Said
Kamal Shah (PLD 1986 Supreme Court 360) and Messrs M.R.
Sons v. M/s. Junaid Associates (Private) Ltd. (PLD 1990
Karachi 387). Moreover, the law of pre-emption is not a way
of accumulating wealth, because our religion (Islam) stresses
upon distribution of properties and does not support monopoly
of certain person(s).
6. Apart from the above, if for the sake of arguments,
it is admitted that the property in question is pre-emptible, even
then the respondent had to prove performance of requisite talbs
in accordance with law, as in order to succeed in such a suit,
performance of talbs and proving of the same in accordance
R.S.A.No.18 of 2009 5

with the mandate of law by producing unimpeachable and

confidence inspiring evidence is necessary and any lacuna, even
the slightest, turns fatal to the pre-emptor.
In the present case, when the evidence produced by the
parties is looked into, it appears that when the appellant/
defendant has specifically denied the receipt of any notice of
Talb-i-Ishhad, it was imperative upon the respondent/plaintiff
to prove the dispatch and delivery of notice to the appellant/
defendant; but he has badly failed in this regard as none of the
attesting witnesses has uttered a word as to sending notice
under section 13 of the Act under registered cover A.D. as well
as receiving of the same by the present appellant, even they
failed to attest their signatures on the alleged notice. Moreover,
the scribe of the notice was also not produced and even no
detail of sale was given by P.W.1. In addition to the above, not
a single suggestion had been put to the appellant that he had
received notice A.D. and the copy of postal receipt A.D. had
been exhibited in counsel’s statement, therefore, it emerges that
dispatch of notice is neither alleged nor proved; thus, this talb
has not been proved, whereas performance and proving of the
same is sine qua non. In this regard light can be sought from
case of BASHIR AHMED v. GHULAM RASOOL (2011 SCMR
762), MUHAMMAD BASHIR and others v. ABBAS ALI SHAH
(2007 SCMR 1105), ALLAH DITTA through L.Rs. and others
v. MUHAMMAD ANAR (2013 SCMR 866), MUHAMMAD
JAMIL LAMBARDAR v. GHULAM BHEEK (DECEASED)
THROUGH HIS LEGAL HEIRS (2014 UC 201) and DAYAM
KHAN and others v. MUSLIM KHAN (2015 SCMR 222)
7. Pursuant to the above discussion, even if it is
admitted that the respondent performed and proved Talb-e-
Muwathibat, non-proving of second talb i.e. Talb-e-Ishhad is
sufficient to disbelieve the version of the respondent, as
 R.S.A.No.18 of 2009 6

performance and proving of all talbs is essential in order to

succeed in such suit. When the respondent/plaintiff has failed to
prove performance of Talbs, as per requirement of law
enunciated under section 13 of the Punjab Pre-emption Act,
1991, no decree for possession on the basis of pre-emption,
even if the pre-emptor enjoys superior right, can be passed in
his favour. Reliance is placed on Mst. SAHIB JAMALA v. FAZAL
SUBHAN and 11 others (PLD 2005 Supreme Court 977).
8. As far as, the case law relied upon by the learned
counsel for the respondent is concerned, with utmost respect,
the same does not apply to the present case, as the peculiar facts
and circumstances of the case in hand are different from that
which are narrated in the said precedents; therefore, it does not
render any assistance or help to the respondent’s case.
9. For the foregoing reasons, while placing reliance
on the judgments supra, it is observed that the learned Courts
below have failed to appreciate evidence and law on the subject
in its true perspective and have failed to exercise jurisdiction
vested in them in accordance with law; as such, material
illegalities and irregularities have been committed while
passing the impugned judgments and decrees. Resultantly, by
allowing the appeal in hand, the impugned judgments and
decrees passed by the learned Courts below, being not
sustainable in the eye of law are set aside; consequent whereof
the suit instituted by the respondent/plaintiff stands dismissed.
No order as to the costs.

(Shahid Bilal Hassan)

Judge
M.A.Hassan

Approved for reporting.

Judge