The Supreme Court of Pakistan has held that in pre-emption (Haq-e-Shufa) cases, strict compliance with all legal requirements, including Talb-e-Muwathibat and Talb-e-Ishhad, is indispensable, and that failure to specifically plead the date of Talb-e-Ishhad and other essential particulars may prove fatal to a claim. The Court dismissed a petition seeking leave to appeal against a judgment of the Peshawar High Court and upheld the concurrent findings of the lower courts.
A two-member bench comprising Justice Muhammad Shafi Siddiqui and Justice Miangul Hassan Aurangzeb issued a short order after hearing Civil Petition No. 4168 of 2022 filed by Ghulam Abbas.
According to the judgment, the petitioner had instituted a pre-emption suit regarding four kanals of land situated in Mouza Karar, District Dera Ismail Khan. He contended that, being a co-sharer and owner of adjacent land, he possessed a preferential right to purchase the disputed property. He further claimed that upon learning of the sale, he performed Talb-e-Muwathibat and Talb-e-Ishhad in accordance with the law and served notices upon the vendees through registered post.
However, the trial court dismissed the suit on March 30, 2011, holding that the petitioner had failed to establish compliance with the legal requirements relating to Talb-e-Ishhad. The appellate court and subsequently the Peshawar High Court upheld the trial court’s decision.
In its judgment, the Supreme Court observed that the right of pre-emption is a weak right in law, and therefore, a claimant must not only specifically plead all statutory requirements but also prove them through reliable evidence. The Court noted that the petitioner had failed to mention the date of Talb-e-Ishhad in his pleadings, which, in light of settled law and judicial precedents, constituted a fundamental and fatal defect.
Referring to a number of earlier judgments, the Court held that the performance and proof of the statutory “Talbs” form the foundation of a pre-emption claim. If either Talb-e-Muwathibat or Talb-e-Ishhad is not proved in accordance with legal requirements, the entire claim becomes unsustainable.
The Court further held that the petitioner had also failed to establish that notices relating to Talb-e-Ishhad were duly served upon the purchasers in accordance with the law. According to the Court, the evidence on record did not meet the standard required in such cases.
The judgment stated that the concurrent findings recorded by the trial court, appellate court and High Court were based on a proper appraisal of the evidence and disclosed no jurisdictional error, material irregularity or legal infirmity. The Supreme Court emphasized that it cannot interfere with concurrent findings of fact merely because another view may also be possible.
Concluding that the petitioner had failed to prove his claim in accordance with law, the Court held that no legal ground existed for granting leave to appeal and dismissed the petition as being without merit.