Law:

Section:

Muhammadan Law--Constitution of Pakistan (1973), Art.185(3)---Pre-emption---Question of Talabs---Leave to appeal was granted to examine whether in absence of framing of issue on question of Talabs and recording of evidence for and against the issue, suit could have been dismissed on the ground that no Talabs had been made by the pre-emptor. A(b) Muhammadan Law---- --- -Pre-emption---Constitution of Pakistan (1973), Art. 185(3)---Suit for pre-emption ---Plaintiff specifically pleading in plaint, that he had made Talabs but no issue regarding the same had been framed---Effect---No fault could be found with plaintiff or his legal representatives who prosecuted the suit for non-framing the requisite issue---High Court in exercise of Constitutional jurisdiction was not justified to take view that formalities of law were not strictly observed, in that, Talabs having not been clearly mentioned in plaint, suit could not be instituted---Plaintiff, however, was required to prove Talabs in accordance with Muhammadan Law---High Court's was set aside and case was remanded for fresh trial in accordance with law. JUDGMENT ABDUL KADIR SHAIKH, J.---This appeal is directed against the judgment of Baluchistan High Court dated 31-10-1988, whereby a Constitution Petition filed by the first respondent herein was allowed with the result that the decree passed in appellants' favour in the suit filed by them, which was upheld in the revision application, was set aside and the suit was dismissed. The facts of the case briefly stated are as under:-- Haji Saleh Muhammad, appellants' predecessor-in-interest, filed a Pre-emption Suit on 14-10-1971 in respect of sale of tenancy rights and water, as also share in shamilat in respect of land measuring G-1/2 acres and 3 mazigar of water situated in Mouza Sarela Qmarzai Tehsil Pishin, made by one Raza Muhammad in favour of respondent-vendee vide mutation dated 29-9-1971. The suit was based on the grounds that pre-emptor had a joint Khata and adjoining lands and there was a common watercourse between the pre-empted land and the adjoining land of the pre-emptor, as against the vendee, who was a complete °stranger in the Mouza. Both Vendor and the…

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