Pre-emption: Filing Denied Notices Is Not Proof, Supreme Court Holds

Independently written and published by Shahbaz Shah Legal Journal.

Denied pre-emption notices must be proved, Supreme Court holds

The Supreme Court of Pakistan has dismissed a pre-emption appeal after finding that the claimants failed to prove the statutory demands required to enforce their right. The decisive defect was the failure to prove Talb-i-Ishhad: the written notices were disputed, but only one of their two attesting witnesses was examined, with no explanation for withholding the other. Simply placing the notices on the court record did not establish their execution and dispatch. Judgment, paragraphs 4 and 6–8.

The judgment in Sarfraz Ahmad and others v. Ishtiaq Ahmad and others, C.A. No. 288-L of 2015, is dated 13 October 2026. Justice Shahid Waheed wrote the decision for a bench comprising Justice Jamal Khan Mandokhail, Justice Shahid Waheed and Justice Irfan Saadat Khan. The supplied copy is approved for reporting but does not print a reporter citation. Complete judgment.

The Court also found an independent failure to establish timely Talb-i-Muwathibat. The appeal was dismissed without an order as to costs, leaving intact the Lahore High Court's dismissal of the suit. Judgment, paragraphs 5–8.

The land sale and the earlier decrees

The appellants' predecessor, Muhammad Din, sued for possession through pre-emption of 30 kanals and 2 marlas in the revenue estate of Chanderke Rajputan. The sale was recorded through Mutation No. 590 dated 5 December 1995 for Rs. 195,000. He claimed a superior right to purchase and asserted that he had performed the required Talbs. Judgment, paragraph 3.

Respondent No. 9, originally defendant No. 1, admitted the claim. The other contesting respondents denied compliance with the statutory requirements. The trial court decreed the suit on 2 March 2002, and the first appellate court upheld it. The Lahore High Court reversed those concurrent findings under section 115 of the Code of Civil Procedure, 1908, in its judgment of 30 April 2015 in C.R. No. 1899 of 2005. The unsuccessful pre-emptors then appealed to the Supreme Court. Judgment, paragraphs 1 and 3.

Before hearing the merits, the Supreme Court discharged an office notice concerning incomplete addresses for respondents Nos. 3 and 4. Counsel for the other respondents sought to represent those two respondents, stating that they were his clients' brothers and shared their interests. The Court proceeded to avoid further delay. This procedural issue did not decide the pre-emption claim. Judgment, paragraph 2.

What was missing from the proof of Talb-i-Ishhad?

The claimants relied on notices marked Exhibits P-4, P-5 and P-6. Each bore the attestation of Ghulam Nabi and Muhammad Arif. Once the defendants specifically denied the notices, the claimants had to establish their execution and dispatch through legally sufficient evidence. Judgment, paragraph 4.

Only Muhammad Arif appeared as PW-3. Ghulam Nabi was not produced. The claimants offered no explanation, did not establish that he was unavailable, and made no attempt to present legally admissible secondary evidence if it was permissible in those circumstances. The Court held that the disputed documents could not be treated as proved merely because they had been filed. Judgment, paragraph 4.

The judgment refers to Muhammad Abaidullah and another v. Ijaz Ahmed and another, 2015 SCMR 394, in explaining the evidentiary importance of producing the attesting witnesses. That authority is identified here as cited in this judgment; its separate full text has not been independently verified. Judgment, paragraph 4.

This failure alone was enough to defeat the suit. The ruling concerns proof of execution and dispatch on this record. It should not be turned into an absolute proposition that no alternative proof could ever be admissible: the Court itself acknowledged that possibility conditionally, while finding that no foundation for it had been established here. Judgment, paragraphs 4–5.

Why the claimed first demand also failed

The plaintiff said he made Talb-i-Muwathibat on 10 January 1996 at 10 a.m., more than four weeks after the sale mutation of 5 December 1995. The Court examined whether there was a legally sustainable basis for treating that demand as prompt. Judgment, paragraph 5.

The plaintiff had pleaded that the competent authority did not issue the required public notice. The Court found no satisfactory evidence proving that allegation or otherwise displacing the statutory consequence concerning knowledge on which its reasoning relied. A pleaded assertion of later knowledge was therefore insufficient on this record. Judgment, paragraph 5.

The judgment describes Talb-i-Muwathibat as a prompt, unequivocal declaration of an intention to exercise pre-emption upon legally relevant knowledge of the sale. It cites Bilal Ahmad and another v. Abdul Majeed, 2020 SCMR 445. That reference is reproduced as printed in the supplied judgment, without claiming independent verification of the earlier decision. Judgment, paragraph 5.

Public notice: a section-number discrepancy in the judgment

Paragraph 5 attributes the Punjab Act's public-notice framework to section 32. The official Punjab Pre-emption Act, 1991 places public notice in section 31; section 32 addresses residual matters by reference to Shariah. The distinction should be preserved when citing the ruling. This article reports the Court's reasoning without substituting a corrected provision into the original judgment.

Under the official text, section 13 requires an immediate first demand upon knowledge and an attested written second demand as soon as possible, within two weeks of knowledge, sent in the prescribed manner. Section 31 requires public notice within two weeks of registration or attestation. Section 30 separately governs the four-month limitation for a suit, using the applicable statutory starting event. Official Act, sections 13 and 30–32.

The four-month period for filing a suit does not replace the immediate first demand. Equally, neither section 31's wording nor the date comparison in this judgment should be presented as a universal rule that mutation alone automatically proves every claimant's knowledge. The Court's additional finding rests on its assessment of this record and the unsupported assertion of non-issuance of public notice. Official Act, sections 13, 30 and 31; judgment, paragraph 5.

A superior right cannot cure unproved demands

The Supreme Court treated the required Talbs as essential statutory conditions, rather than dispensable formalities. Failure to prove them was fatal even if the claimant asserted a superior right of pre-emption. The High Court's conclusion was maintained, and the appeal was dismissed without costs. Judgment, paragraphs 6–8.

For readers assessing a similar record, the practical point is to separate entitlement from proof of the demands. Identify the actual evidence of knowledge and the first declaration, preserve the notices and dispatch material, and account for the attesting witnesses. An unexplained gap in that evidence can determine the claim before the comparative right to pre-empt is reached. This is the practical implication of the Court's findings in this case. Judgment, paragraphs 4–6.

Sources

• Sarfraz Ahmad and others v. Ishtiaq Ahmad and others, C.A. No. 288-L of 2015, Supreme Court of Pakistan, 13 October 2026 — complete supplied five-page judgment.
• Punjab Pre-emption Act, 1991 — official Punjab Revenue Academy text, particularly sections 13 and 30–33.
• Earlier authorities cited within the supplied judgment: Muhammad Abaidullah and another v. Ijaz Ahmed and another (2015 SCMR 394); Bilal Ahmad and another v. Abdul Majeed (2020 SCMR 445). Separate texts and later judicial treatment were not independently verified.