IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE MUNIB AKHTAR 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CIVIL APPEAL NO. 840 OF 2017 
(On appeal against the judgment dated 
10.02.2017 passed by the Lahore High Court, 
Lahore in RSA No. 135/2010) 
 
Sardar Muhammad (deceased) through LRs 
 
 
 
 
… Appellants 
Versus 
Taj Muhammad (deceased) through LRs and others 
 
…Respondent(s) 
 
For the Appellants: 
Mr. Salman Mansoor, ASC 
Syed Rifaqat Hussain Shah, AOR 
 
 
For the Respondent (1): 
Malik Muhammad Kabeer, ASC 
 
 
Date of Hearing: 
06.04.2023 
 
JUDGMENT 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.-  
C.M.A. No. 2175/2022 
 
 
Through this application, the applicant seeks setting aside of 
the ex-parte order. For reasons mentioned in this application and subject 
to all just exceptions, this CMA is allowed and the ex-parte order is set 
aside.  
Civil Appeal No. 840/2017 
2. 
 
Through this appeal under Article 185(2)(d) of the 
Constitution of Islamic Republic of Pakistan, 1973, the appellants have 
assailed the judgment dated 10.02.2017 passed by the learned Single 
Judge of the Lahore High Court, Lahore whereby the Regular Second 
Appeal filed by the respondents was allowed, the judgment and decree of 
the learned Appellate Court dated 29.04.2010 was set aside and the 
CIVIL APPEAL NO. 840 OF 2017 
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judgment and decree of the learned Trial Court dated 07.11.2009 was 
restored.  
3. 
 
Briefly stated the facts of the case are that respondent Nos. 
1 to 3 purchased land measuring 37 kanals 9 marlas in Chak No. 148 GB, 
Tehsil and District Toba Tek Singh through mutation No. 1072 dated 
17.11.2013 for a total sale consideration of Rs.450,000/-. Later on, the said 
respondents exchanged the suit property with respondent Nos. 4 & 5 
against their corresponding land measuring 33 kanals 4 marlas situated in 
Chak No. 161/GB, Tehsil Gojra, District Toba Tek Singh vide mutation No. 
1073 dated 23.12.2003. On 08.03.2004, the predecessor-in-interest of the 
appellants namely Sardar Muhammad filed a suit for possession through 
pre-emption on the ground of having superior right of pre-emption being a 
co-sharer of the disputed property. The suit was contested by the 
respondents/defendants. Out of the divergent pleadings of the parties, the 
learned Trial Court framed as many as seven issues and ultimately vide 
judgment and decree dated 07.11.2009 dismissed the suit. The 
predecessor-in-interest of the appellants filed an appeal before the 
learned Additional Sessions Judge, Toba Tek Singh/Appellate Court, who 
vide judgment and decree dated 29.04.2010 accepted the appeal and set 
aside the judgment and decree of the learned Trial Court. Being aggrieved, 
the respondents/defendants filed Regular Second Appeal before the 
learned Lahore High Court, who vide impugned judgment accepted the 
same, set aside the judgment and decree of the learned Appellate Court 
and restored that of the learned Trial Court. Hence, this appeal.  
4. 
 
At the very outset, learned counsel for the appellants 
contended that the appellants/plaintiffs had proved both Talb-e-
Muwathibat and Talb-e-Ishhad in accordance with law but the learned 
High Court brushed it aside by treating the performance of Talabs as 
concocted story merely on the basis of unfounded presumption. Contends 
that the notice of Talb-e-Ishhad was duly dispatched through registered 
post and in this regard the Postman, Branch Postmaster and Postmaster of 
Post Office Kachehri were produced in evidence as PW-1 to PW-3 
CIVIL APPEAL NO. 840 OF 2017 
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respectively. Contends that the receipts of the registered envelop were 
duly exhibited in evidence. Contends that the respondents/defendants 
have failed to highlight an obvious deficiency in the performance of Talb-e-
Ishhad. Lastly contends that the learned High Court has arrived at the 
wrong conclusions without applying the law applicable thereto and the 
same is the result of mis-reading and non-reading of evidence, therefore, 
the same may be set at naught.  
5. 
 
On the other hand, learned counsel for the respondents 
defended the impugned judgment by stating that the learned High Court 
has passed a well reasoned judgment, which is based on correct 
appreciation of the evidence available on the record, therefore, the same 
needs no interference. Contends that the evidence of Zafar Iqbal, Postman 
(PW-1) clearly reveals that the notice of Talb-e-Ishhad was affected only 
on one defendant namely Muhammad Bashir, therefore, such service was 
not a service in the eye of law.  
6. 
 
We have heard learned counsel for the parties at some 
length and have perused the available record with their able assistance.  
7. 
 
There is no denial to this fact that the right of pre-emption is 
a very weak right. To succeed in a suit for pre-emption the first and the 
foremost condition is that the plaintiff has to plead that before filing of 
suit he had fulfilled the requirements of Talabs and thereafter he has to 
prove the performance of Talb-e-Muwathibat and Talb-e-Ishhad. For 
proving Talb-e-Muwathibat there must be specific time, date and place of 
knowledge pleaded in the plaint. Thereafter, the same shall be followed by 
sending of notice through registered post, which shall be served on the 
defendants. The learned High Court has rightly held that if performance of 
single talab skips or not proved, the superstructure and edifice of the suit 
falls on the ground. It was the claim of the predecessor-in-interest of the 
appellants Sardar Muhammad that he came to the knowledge of the 
disputed sale on 23.12.2003 at about 01:00 pm while he was sitting in 
front of his drawing room in Chak No. 293/GB. Anwar Ahmed (PW-5) came 
to him and informed about the disputed sale to which he promptly alleged 
CIVIL APPEAL NO. 840 OF 2017 
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his right of pre-emption and therefore made Talb-e-Muwathibat. 
However, his stance was controverted by the respondents/defendants 
who said that they had purchased the property from Mst. Ameena Begum 
etc. Balqees Bibi and Mumtaz Bibi were real sisters of the plaintiff Sardar 
Muhammad while Ameena Begum was her sister-in-law. Rashid and 
Arshad were his real nephews while Samina was his niece and being 
closely related to the said Mst. Ameena Begum etc, the plaintiff knew 
about the sale of the disputed property. Ashiq Ali (DW-3) was attesting 
witness of the sale mutation No. 1072 dated 17.11.2013 whereby land 
measuring 37 kanals 9 marlas was sold to the respondents/defendants. He 
in categorical terms stated that the sale consideration was paid in the 
presence of the plaintiff. The said Ashiq Ali had no enmity with the plaintiff 
nor had he any blood relations with the defendants. Anwar Ahmed (PW-5) 
was tenant/lessee of the plaintiff, who used to cultivate the agricultural 
land of the plaintiff situated in his khewat. This fact was also admitted by 
the plaintiff. In this eventuality, the evidence of said Anwar Ahmed is not 
free from doubt. To prove the notice of Talb-e-Ishhad, although the 
plaintiff had produced Zafar Iqbal, Postman as PW-1. However, a bare 
perusal of his statement shows that the notices were not directly delivered 
to the defendants Taj Muhammad and Raj Muhammad. The postman 
stated that it was defendant Muhammad Bashir, who had received the 
notices on behalf of the other two defendants Taj Muhammad and Raj 
Muhammad. Similarly, the notice sent to Abdul Jabbar, defendant, was 
received by defendant Abdul Ghafoor. This fact was also admitted by the 
plaintiff himself in paragraph 5 of his amended suit filed by him before the 
learned Trial Court. In a similar case reported as Munawar Hussain Vs. 
Afaq Ahmed (2013 SCMR 721) this Court has held as under:- 
“So far as Talb-e-Ishhad is concerned, admittedly the service on one of 
the two petitioners-defendants/vendees namely Muhammad Akram was 
not personally effected and according to learned counsel for the 
respondent, it was effected on his brother and co-vendee Munawar 
Hussain appellant. The afore-referred service is not a service in the eyes 
of law. It is not the case of respondent/plaintiff either that service of 
notice of Talb-e-Ishhad on the said vendee was made through registered 
post acknowledgement due. The contention that service on the co-
CIVIL APPEAL NO. 840 OF 2017 
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vendee should be presumed as service in law is not backed by any 
provision of law and therefore, is not tenable.”  
8. 
 
In Mir Muhammad Khan Vs. Haider (PLD 2020 SC 233) the 
pre-emptor could not prove that the notice of Talb-e-Ishhad was ever 
served on the vendee. The five members bench of this Court categorically 
held that “it fell upon the pre-emptor in the case to prove that the notice 
had been delivered. By failing to prove the same or even producing the 
postman who allegedly delivered the notice, the pre-emptor failed to 
establish the sending or receipt of the notice for the performance of Talb-
e-Ishhad.” In view of the law laid down by this Court, it was the 
plaintiff/pre-emptor who had to prove that the notice had been delivered 
to all the defendants but he himself admitted that same was not the case. 
The service of Talb-e-Ishhad is a prerequisite and if the performance of the 
same is not proved beyond any shadow as well as in the prescribed form, 
then the whole structure falls on the ground. In these circumstances, the 
learned High Court has correctly appreciated the material aspects of the 
case and the conclusions drawn are in line with the guidelines enunciated 
by this Court on the subject. Learned counsel for the appellants has not 
been able to point out any legal or factual error in the impugned 
judgment, which could be made basis to take a different view from that of 
the learned High Court.   
9. 
 
For what has been discussed above, this appeal having no 
merit is dismissed and the impugned judgment passed by the learned High 
Court is upheld meaning thereby that the judgment and decree of the 
learned Trial Court dated 07.11.2009 shall remain intact.  
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
6th of April, 2023 
Approved For Reporting 
Khurram 
