IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE SARDAR TARIQ MASOOD
MR. JUSTICE MUHAMMAD ALI MAZHAR

CIVIL PETITION NO.446-L OF 2014

(Against Judgment dated 11.02.2014
passed by the Lahore High Court,
Lahore in R.S.A.No.177/2005)

Muhammad Riaz …Petitioner

Versus

Muhammad Ramzan and others …Respondents

For the Appellant : Mr. Zafar Iqbal Klasoon, ASC

(thr. Video Link from Lahore)

For the Respondents : N.R.

Date of Hearing : 04.05.2023

JUDGMENT

MUHAMMAD ALI MAZHAR, J:- This Civil Petition for leave to appeal
is directed against the Judgment dated 11.02.2014 passed by the
Lahore High Court, Lahore in R.S.A.No.177/2005 whereby the
regular second appeal filed by the petitioner was dismissed.

2. Succinctly stated, the facts of the case are that the petitioner filed
a suit for possession through pre-emption in relation to the property
measuring 132 Kanals and 8 Marlas, situated in Village Khopra,
Tehsil Daska, District Sialkot and further contended that the said
property was purchased by the respondents consequent to a decree
for specific performance dated 18.04.2000, thereafter, the property
was mutated vide Mutation No.1458 dated 23.09.2000 but, in order
to defeat the petitioner’s superior right of pre-emption as a Shafi
Sharik (co-sharer in suit property) and Shafi Khalit (participator in
special rights attached to the suit land i.e. right of irrigation and
transportation), the respondents fraudulently mentioned the sale
consideration as Rs.33,00,000/-, whereas they had actually
purchased the property in the sum of Rs.23,41,000/-, The petitioner
further contended that he first came to know about the sale of the
C.P. No.446-L/2014 -2-

property through Said Khan on 28.09.2000 at 6:00 pm and upon

receiving the information, he immediately made the demand of pre-
emption i.e. Talb-i-Muwathibat and expressed his intention to assert
his right. In order to fulfill the second requirement of Talb-i-Ishhad
(demand by establishing evidence), the petitioner sent a notice on
02.10.2000 to all three respondents in the presence of two witnesses
(i.e. Said Khan and Inayat Ali) and, after the making of Talb-i-
Muwathibat, he, along with Said Khan and Inayat Ali, visited the
respondents’ houses and reaffirmed Talb-i-Muwathibat in their
presence and demanded them to accept the petitioner’s right of pre-
emption which they refused to do.

3. The learned counsel for the petitioner, argued that that the High
Court has erred in holding that the Decree dated 10.01.2001 was hit
by the principles of partial pre-emption as the petitioner had filed the
suit with respect to the entire suit property. It is further averred that
the High Court has incorrectly held that the respondent No.1 could
not effect a compromise to the extent of his share in the suit
property, especially when the respondent No.1 had received the
consideration for his share, and that the respondents No. 2 and 3
has no locus standi to challenge the same as it had no impact on
their rights. He further argued that the High Court erroneously held
that the petitioner failed to perform the requirements of “Talbs”.

4. Heard the arguments. The record reflects that the respondent No.1
appeared before the learned Trial Court on the first date of hearing
and submitted a written statement wherein he admitted the
petitioner’s superior right of pre-emption and conceded to the decree
of the suit in favour of the petitioner to the extent of his share in the
property. Accordingly, the petitioner was directed to deposit a sum of
Rs.11,00,000/- as Zar-e-Soam (portion of sale price) to establish good
faith and upon the respondent No.1’s submission that he had
received the aforesaid amount, the suit was decreed in favour of the
petitioner to the extent of respondent No.1 vide Decree dated
10.01.2001. The respondents No. 2 and 3 contested the suit by filing
written statements wherein it was averred that the petitioner was
estopped by his conduct because the decree dated 18.04.2000, that
enabled the respondents to purchase the suit property was passed
with the consent of the petitioner therefore, the decree dated
10.01.2001 was a result of collusion between the petitioner and the
C.P. No.446-L/2014 -3-

respondent No.1. The petitioner had the knowledge of sale since

02.03.1994 and was also aware of the mutation. According to the
respondents No. 2 and 3 they had purchased the property for a sale
consideration of Rs.33,00,000/-, which was in fact the market value
of the property.

5. The learned Trial Court settled the various issues but the Issue
No.11 was particularly related to the niceties of the application
moved under Section 12 (2), CPC. After recording evidence, the
learned Trial Court decided Issue No. 11 in favour of the respondents
No. 2 and 3 and set aside the decree dated 10.01.2001 passed in
favour of the petitioner and also dismissed the suit vide judgment
dated 01.06.2004. The petitioner preferred an appeal before the
learned Additional District Judge, Daska which was also dismissed
vide Judgment dated 03.10.2005, thereafter, the petitioner filed
R.S.A. No.177/2005 which met the same fate vide impugned
Judgment dated 11.02.2014.

6. We have carefully examined and scrutinized the record, including

the three concurrent findings and reached the conclusion that the all
the courts below have appropriately and appositely skimmed through
the evidence adduced by the parties with proper application of mind.
For ease of reference, the relevant passages of the impugned
judgment are reproduced as under:-

“5. The conduct of the plaintiff and defendant No.1 subsequent

to the appearance has been discussed in detail by the courts
below which resulted into the findings on issue No.11. Even
otherwise, in view of case titled 'Muhammad Aslam and others
versus Saleem-ud-Din and others' (2006 CLC 1911), in a pre-
emption suit no partial decree is possible and further the fact
of payment of Zar-e-Soyem by the plaintiff to defendant No.1
and receipt thereof by the said defendant would also create no
right to the pre-emptor as has been held in Aurangzeb versus
Massan and 13 others' (1993 CLC 1020). The findings of the
courts below with regard to the application under Section 12(2)
C.P.C. are thus justified, legal and are not liable to be
interfered with.

6 As regard the merits of pre-emption suit it may be added that

the decree in a suit for specific performance on the strength of
which the suit sale mutation was sanctioned was passed on
the statement of present appellant and thus the courts below
are right in deciding issue No.6, regarding estoppel as against
the appellant. Further it is a fact to be noted that PW-2 and
PW-3 have been produced in order to prove the making of Talb-
1-Muwathibat by the plaintiff but both these witnesses while in
witness box never deposed as to any date of making Talb-i-
Muwathibat by the plaintiff. It is also a fact that neither in the
C.P. No.446-L/2014 -4-

pleadings nor in evidence, the plaintiff has asserted that notice

in compliance of making Talb-i-Ishhad was sent along with a
receipt of acknowledgement due and as such there is no such
evidence available on record showing that the notice of Talb-i-
Ishhad was sent by the plaintiff through registered post with
acknowledgement due.”

7. It is a well-settled legal precept that no partial decree is possible in

a pre-emption suit as the right of pre-emption is one of substitution,
even in the case of pre-emption under statute law, unless the statute
itself has made a departure in this regard to any extent. From the
doctrine that the right of pre-emption is one of substitution it follows
that, unless the statute conferring the right of pre-emption otherwise
provides, the pre-emptor must take over the whole bargain, that is to
say, the pre-emptor must seek pre-emption of the whole of the
subject-matter of the sale and pay the entire price paid by the vendee
as consideration. This, however, is subject to certain limitations
which, at any rate, do not include the vendor's defective or want of
title. Suffice it to say by way of example that a pre-emptor is not
bound to seek pre-emption of the whole of the property sold and pay
the full sale price if his right of pre-emption extends over only a
portion of the property sold or if a portion of the property is capable
of pre-emption and the other is not. In case of any such limitation,
partial pre-emption on payment of proportionate price may be
permitted as of necessity and not because the pre-emptor wants it
[Ref: Mst. Bashiran and others v. Abdul Ghani and others (1995
SCMR 1833) and Malik Hussain and others v. Lala Ram Chand and
others (PLD 1970 SC 299)]. In the instant case the decretal amount
of Rs.33,00,000/- was paid jointly by the respondents, thus the
share of the respondent No.1 could not be separated from the whole
and the decree dated 10.01.2001 was not sustainable in law, hence it
was rightly set aside by the learned Trial Court. Moreover, as per the
record the petitioner was ordered to deposit one-third of the sale
price i.e. Rs11,00,000/- as zar-e-soam, however he only deposited
Rs.7,06,000/-, thereby failing to comply with the mandatory
provision of Section 24 of the Punjab Pre-emption Act, 1991.

8. As far as the crucial question vis-à-vis the petitioner’s conduct and

deportment is concerned, the Trial Court has rendered its detailed
findings in this respect in Issues No. 6 and 7 of the judgment and
decree dated 01.06.2004 that the petitioner was a co-vendor in the
C.P. No.446-L/2014 -5-

sale agreements for the suit property (Ex.D-1, Ex.D-2 and Ex.D-3)
along with Muhammad Akram and Muhammad Nawaz and nowhere
in the pleadings did the petitioner deny the factum of sale, as such,
the petitioner had full knowledge of the sale from the outset. Further,
the petitioner had submitted Mark C1/Ex.D-4 which was an
application for effecting a compromise which the petitioner had
signed (Ex.D-4/1) and had recorded his statement as Ex.D-5 wherein
he had consented to the compromise, and it was on this basis that
the suit was decreed vide judgment and decree dated 18.04.2000. At
no point during the proceedings in the suit for specific performance
did the petitioner state that he would exercise his right of pre-
emption or that his right of pre-emption was being affected. The
conduct of the petitioner was hit by the principle of estoppel and the
principle of approbation and reprobation. In the case of Sardar Ali
Khan v. State Bank of Pakistan and others (2022 SCMR 1454), this
Court stated that Article 114 of the Qanun-e-Shahadat Order, 1984
incorporates the doctrine of estoppel under which when a person
has, by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act
upon such belief, neither he nor his representative shall be allowed in
any suit or proceeding between himself and such person or his
representative to deny the truth of that thing. This principle is
founded on equity and justness with straightforward objective to
prevent fraud and ensure justice, and though it is described as a rule
of evidence, it may have the effect of constituting substantive rights
as it impedes someone from averring a truth that is defined as
contradictory to an already established truth. The catchphrase
“Estoppel” is derived from the French word “estoupe” from which the
word estopped in English language emerged. “A man's own act or
acceptance stoppeth or closeth up his mouth to allege or plead the
truth" (Lord Coke in Co. Litt 352 (a) as cited in the case of B.L.
Sreedhar v. K.M. Munireddy (2003) 2 SCC 355 at 365). Further, the
maxim qui approbat non-reprobat (one who approbates cannot
reprobate) is also firmly embodied in English common law. It is akin
to the doctrine of benefits and burdens which at its most basic level
provides that a person taking advantage under an instrument which
both grants a benefit and imposes a burden cannot take the former
without complying with the latter. A person cannot approbate and
reprobate or accept and reject the same instrument. Ref: Shyam
C.P. No.446-L/2014 -6-

Telelink Ltd. v. Union of India reported in 2010 (10) SCC 165. These
principles were also addressed by this Court in the case of Haji
Ghulam Rasool and others v. The Chief Administrator of Auqaf, West
Pakistan (PLD 1971 SC 376) wherein it was stated that the doctrine
of estoppel is not confined to the matters dealt with under Section
115 of the Evidence Act, for, as pointed out by Garth, C. J. in the
case of Ganges Manufacturing Co. v. Sourajmull (I L R 5 Cal. 669)
"estoppels in the sense in which the term is used in the English legal
phraseology are matters of infinite variety and are by no means
confined to the subjects dealt within Chapter VIII of the Evidence
Act". It has been defined in Halsbury's Laws of England (2nd Edn.),
Vol. 13, "as a disability whereby a party is precluded from alleging or
proving in legal proceedings that a fact is otherwise than it has been
made to appear by the matter giving rise to that disability". It is in
this sense that it has often been held that even as a rule of evidence
or pleading a party should not be allowed to approbate and
reprobate.

9. The petitioner had also produced PW-2 and PW-3 before the
learned Trial Court to establish Talb-i-Muwathibat, however neither of
the two witnesses was deposed regarding the date on which the
petitioner made Talb-i-Muwathibat during their examination. PW-2
also deposed that he was not aware of the other
witnesses/signatories to the notice of Talb-i-Ishhad, and merely
speculated as to who they could be, and was unaware of the contents
of the notice and its recipients. Moreover, neither PW-2 nor PW-3
deposed any specific date on which Talb-i-Ishhad was made. No
receipt of acknowledgement due was produced in evidence, nor was
any evidence or witness brought to show that the respondents had
refused to be served with the notice. This Court, in the case of Mst.
Bibi Fatima v. Muhammad Sarwar (2022 SCMR 870) addressed this
matter and stated that, “in terms of Article 129 of the Qanun-e-
Shahadat, 1984 read with Section 27 of the General Clauses Act,
1897, a presumption of service does arise if a notice sent through
registered post with acknowledgement due is received back with the
endorsement of "refused" by the postal authorities but if the
addressee appears in Court and makes a statement on oath
disowning receipt of notice, the presumption under the said provision
shall stand rebutted and the onus is on the party which is relying on
such an endorsement to prove the same by producing the postman
C.P. No.446-L/2014 -7-

who made the endorsement”. Thus, it was for the petitioner to

produce the postman during the evidence stage in order to establish
the factum of Talb-i-Ishhad, which he failed to do.

10. In the wake of the above discussion, the learned counsel for the
petitioner was unable to point out any error, perversity, or legal or
jurisdictional defect in the impugned judgment calling for
interference by this Court. Accordingly, this petition is dismissed and
leave is declined.

JUDGE

JUDGE

Islamabad
04.05.2023
Faaiza/Khalid
Approved for reporting.