Pre-emption (Shufa) disputes continue to occupy a significant place in Pakistani civil litigation, particularly in agrarian and semi-urban areas where joint ownership, co-sharership, and neighborhood rights frequently intersect with sale transactions. Despite its roots in Islamic jurisprudence, the right of pre-emption has consistently been described by the superior courts as a weak and restrictive right, which can only be exercised through strict compliance with statutory and Shariah-based requirements. Even a minor lapse in pleadings, proof, or timing is sufficient to defeat a pre-emptor’s claim.
Over the years, the Supreme Court of Pakistan and High Courts have developed a rigorous body of jurisprudence governing Talb-i-Muwathibat (first demand), Talb-i-Ishhad (second demand), proof of sale price, chain of information, existence of right on crucial dates, and evidentiary standards. This article, divided into two parts, consolidates the most authoritative rulings to provide practical guidance for lawyers and litigants dealing with pre-emption suits.
Concept of Pre-emption and Its Weak Nature
The right of pre-emption allows a qualified person to substitute himself for the vendee in respect of a completed sale of immovable property. However, the courts have repeatedly held that this right is not favored in law, as it restricts the free alienation of property. Consequently, the pre-emptor must strictly prove every ingredient of his claim, and equity or sympathy has no role where statutory requirements are not fulfilled.
The Supreme Court has consistently observed that pre-emption cannot be claimed on presumptions or probabilities; it must be established through clear pleadings and unimpeachable evidence.
Talb-i-Muwathibat (First Demand): Proof and Chain of Information
Talb-i-Muwathibat is the immediate declaration of intention to pre-empt upon acquiring knowledge of the sale. This demand must be prompt, unequivocal, and based on direct information of the transaction.
Informer as a Star Witness
In Ahmed Yar v. Chan Pir Shah (2025 CLC 259), the Lahore High Court held that the informer of the sale transaction is a star witness in pre-emption suits. Since Talb-i-Muwathibat is triggered by knowledge of sale, the person who conveyed such knowledge must be examined to establish:
when the sale came to his knowledge,
how he acquired that knowledge, and
when and how he informed the pre-emptor.
Failure to examine the informer, or his refusal to enter the witness-box, was held to be fatal, as it deprives the court of the foundational evidence required to prove the first mandatory demand.
Complete Chain of Information Is Mandatory
The Supreme Court in Muhammad Riaz v. Muhammad Akram (2024 SCMR 692) reaffirmed that Talb-i-Muwathibat must be proved through a complete and unbroken chain of information. The chain must start from the person who directly witnessed the sale and must be traced step by step until the pre-emptor receives the information.
If any link in this chain is missing—such as non-production of an intermediary who conveyed the information—the demand becomes hearsay and legally invalid. This principle was earlier echoed in Subhanuddin v. Pir Ghulam (PLD 2015 SC 69), where failure to produce the person who informed the pre-emptor about the sale price resulted in dismissal of the suit.
Place of Talb-i-Muwathibat: Exactness Is Mandatory
Where Talb-i-Muwathibat is claimed to have been made in a house or dera, the courts require strict proof of the exact place of performance.
In Muhammad Saleem (Deceased) v. Habib-ur-Rehman (2025 CLC 1427), the Lahore High Court held that a vague plea that demand was made “in the house” is insufficient if the house comprises multiple portions. The exact portion must be pleaded and proved to remove ambiguity.
Similarly, in Ghulam Muhammad v. Shahid Nadeem (2017 CLCN 53), it was held that failure to specify the precise location within a dera where the demand was made creates serious doubt about the performance of Talb-i-Muwathibat and is fatal to the claim.
Talb-i-Ishhad (Second Demand): Proof Requirements
Talb-i-Ishhad requires reaffirmation of the intention to pre-empt, either in the presence of the vendee or through written notice attested by two truthful witnesses.
Advocate-Issued Notice Must Be Proved by Advocate
In Hasham Khan (Deceased) v. Waheed Ahmed (2024 SCMR 353), the Supreme Court held that where Talb-i-Ishhad notice is issued through an advocate, the advocate himself must appear in the witness-box to prove its issuance and service. Mere production of the notice bearing the plaintiff’s signatures is insufficient where the language of the notice shows that it was issued by counsel. Non-examination of the advocate rendered Talb-i-Ishhad unproved.
Non-Mentioning of Witnesses in Plaint Is Fatal
The same judgment further held that failure to mention the names of witnesses of Talb-i-Ishhad in the plaint is a fatal defect. Since pre-emption is a weak right, all material facts—including names of witnesses—must be pleaded at the outset. Subsequent improvement is not permissible.
Proof of Dispatch vs Proof of Delivery of Notice
The Lahore High Court in Muhammad Sharif v. Muhammad Yousaf (2008 MLD 307) clarified that for Talb-i-Ishhad, proof of dispatch of notice is sufficient; proof of actual delivery is not mandatory, provided dispatch through registered post is proved and supported by witnesses.
However, this principle must be read in harmony with Muhammad Bashir v. Abbas Ali Shah (2007 SCMR 1105), where the Supreme Court held that although a presumption of service arises when a registered notice is returned with an endorsement like “refused,” such presumption is rebuttable. If the addressee denies service on oath, the postman must be examined to prove refusal. Mere reliance on postal endorsement is insufficient.
Mandatory Examination of Two Attesting Witnesses
In Akbar Ali v. Muhammad Abdullah (2007 SCMR 1233), the Supreme Court held that a Talb-i-Ishhad notice must be proved by examining both attesting witnesses. Examination of only one witness does not satisfy section 13 of the Punjab Pre-Emption Act, 1991.
This principle was reaffirmed in Dawa Khan v. Muhammad Tayyab (2013 SCMR 1113) and Muhammad Abaidullah v. Ijaz Ahmad (2015 SCMR 394), where it was held that examination of the scribe cannot substitute the mandatory requirement of producing two attesting witnesses.
Sale Price: Honest Plea vs False Plea
In Zilla Muhammad v. Qamar Ali Khan (2016 SCMR 184), the Supreme Court held that pleading a lesser sale price than what is ultimately determined does not by itself defeat the right of pre-emption. The court is competent to determine the actual consideration, and the pre-emptor remains bound to pay it.
Conversely, in Subhanuddin v. Pir Ghulam (PLD 2015 SC 69), a false and dishonest plea regarding sale price—without disclosing source or producing the informer—was held fatal, as pre-emption under Shariah demands truthfulness.
Existence of the Right of Pre-emption on Crucial Dates
A pre-emptor must establish that his right existed continuously on three decisive dates:
(i) the date of sale,
(ii) the date of institution of the suit, and
(iii) the date of passing of the decree.
In Abdul Aziz v. Sheikh Fateh Muhammad (2007 SCMR 336), the Supreme Court underscored that pre-emption is a weak and predatory right which cannot be created retrospectively. Where the suit property was exempt from pre-emption on the date of sale, a subsequent change in law could not revive or confer the right. Even flawless compliance with Talb-i-Muwathibat and Talb-i-Ishhad cannot cure the absence of a substantive right on any of these three dates. If the right fails at any stage, the suit must fail irrespective of procedural compliance.
The practical implication is clear: pleadings must expressly assert the subsistence of the right on all three dates, and evidence must be marshalled accordingly. Any change in the character of the property or the applicable law between these dates must be addressed upfront.
Zaroorat and Avoidance of Zarrar: Mandatory Statutory Conditions
Under section 6 of the Punjab Pre-Emption Act, 1991, the assertion of zaroorat (genuine need) or avoidance of zarrar (harm) is not ornamental; it is a mandatory condition.
In Imam Din v. Ishaq Ahmad (2012 MLD 1559), the Lahore High Court held that failure to plead and prove zaroorat or apprehension of zarrar is fatal to a pre-emption suit. The right does not arise automatically with sale; it must be justified by demonstrating necessity or harm. The omission cannot be cured by evidence if the plaint itself is silent. Even where the sale and institution of suit preceded the cut-off date of 31-12-1993, the statutory requirement remained binding.
For drafting purposes, a clear averment explaining the nature of need or the harm likely to be caused by the sale is indispensable, followed by evidence substantiating that plea.
Urban Property and Exclusion from Pre-emption
Urban character of property is a recurring ground for dismissal of pre-emption suits. The burden squarely lies on the pre-emptor to prove that the property is not urban and does not fall within municipal or town committee limits.
In Muhammad Yunus v. Fayyaz Masood Malik (2006 SCMR 915), the Supreme Court held that property situated within Town Committee limits and possessing urban character is not subject to pre-emption under sections 2(a) and 5 of the Punjab Pre-Emption Act, 1991. Mere assertion of a right is insufficient; cogent evidence regarding the non-urban character is mandatory.
Earlier, in Muhammad Shahab-ud-Din v. Muhammad Qasim (1996 CLC 480), it was held that where the sale occurred at a time when urban property was exempt from pre-emption, a later declaration removing such exemption had no retrospective effect. Since the right did not exist on the date of sale, the plaint was rightly rejected at the threshold under Order VII, Rule 11, C.P.C.
Practically, revenue records, notifications, municipal boundaries, and site plans should be produced to establish the rural or non-urban status of the property on the date of sale.
Jurisdiction and Maintainability
Pre-emption suits fall within the exclusive jurisdiction of Civil Courts. Jurisdictional competence depends upon the location of the property and the cause of action. Any defect in territorial or pecuniary jurisdiction can vitiate proceedings at any stage.
Care must be taken to institute the suit before the competent court having jurisdiction over the property, and to frame relief strictly in accordance with the governing statute. Misjoinder of parties or causes, or invocation of an incorrect forum, invites dismissal or return of plaint.
Limitation in Pre-emption Suits
Limitation is a decisive factor in pre-emption litigation. The cause of action accrues from the date of knowledge of sale, subject to the statutory period prescribed. Delay defeats equity in a right already considered weak.
Courts have consistently held that unexplained delay in asserting the right, or failure to establish the date and mode of knowledge of sale, renders the suit time-barred. Prompt performance of Talb-i-Muwathibat upon knowledge is therefore not only a substantive requirement but also interlinked with limitation.
For pleadings, the date, time, and manner of acquiring knowledge of sale must be specifically pleaded and proved.
Execution of Pre-emption Decree
Execution proceedings in pre-emption are not a mere formality. The pre-emptor must strictly comply with the terms of the decree, particularly regarding deposit of sale consideration within the stipulated time.
Failure to deposit the determined consideration within time results in automatic dismissal of the suit and extinction of the right. Courts have repeatedly declined to extend time on equitable grounds, reiterating that indulgence is impermissible in a weak right.
Where possession is to be delivered, the executing court enforces substitution of the pre-emptor in place of the vendee strictly in accordance with the decree. Any attempt to reopen settled issues at execution stage is impermissible.
Frequently Asked Questions (FAQs) on Pre-emption
1. Must the right of pre-emption exist on all stages?
Yes. It must exist on the date of sale, institution of suit, and decree; failure at any stage is fatal.
2. Is pleading zaroorat or zarrar mandatory?
Yes. Absence of such pleading and proof defeats the suit.
3. Can urban property be pre-empted?
No. Urban property within municipal or town limits is excluded unless proved otherwise.
4. Is delay fatal in pre-emption suits?
Yes. Prompt action upon knowledge of sale is mandatory; unexplained delay defeats the claim.
5. Can time for deposit be extended in execution?
No. Failure to deposit within time extinguishes the right.