Compulsory evidence is required in pre-emption cases, rules SC

ISLAMABAD:

The Supreme Court has ruled that in a pre-emption case, the date, time and place of Talb-e-Muwathibat (immediate demand) must be specifically pleaded and proved, holding that failure to comply with this mandatory statutory requirement is fatal to the claim.

The apex court set aside the judgments of the Court of Appeal and the Peshawar High Court (PHC) and restored the trial court’s decision to dismiss the case.

According to a detailed judgment, a three-member bench comprising Justice Muhammad Ali Mazhar, Justice Musarrat Hilali and Justice Shahid Bilal Hassan heard the case titled Sherzali and others vs Saadullah Khan. The judgment was authored by Justice Hassan.

The dispute arose from the transfer of six kanals and eight marlas of land in Kohat. Saadullah had filed a pre-emption case and claimed that on learning about the sale of the property, he immediately exercised Talb-e-Muwathibat and subsequently completed the formalities of Talb-e-Ishhad (claim with witnesses).

However, the court dismissed the suit on the ground that the suit did not specify the date and place where the Talb-e-Muwathibat had allegedly been made.

The Supreme Court observed in its judgment that the right of pre-emption is a weak and delicate right which can only be enforced through strict compliance with all legal requirements. It emphasized that Talb-e-Muwathibat forms the very basis of a pre-emption claim, making it essential for a claimant to clearly plead and prove the time, date and place where the claim was made.

The court held that where this basic requirement is absent, all subsequent proceedings lose their legal effect. Citing a number of legal precedents, the Supreme Court ruled that omission of the mandatory information about Talb-e-Muwathibat in the case constitutes a fatal defect which cannot be remedied by evidence adduced at a later stage.

It further noted that the claimant had also not established the entire chain of information.