JUDGMENT
1. This appeal arises out of a suit for pre-emption based on Muhammadan law. The Court of First Instance found that the requirements of Muhammadan law as to demands had not been complied with and dismissed the suit. The lower Appellate Court reversed this finding and remanded the case. The present appeal was then instituted and it has been contended that the decision of the lower Appellate Court was wrong in law inasmuch as on the plaintiff's own evidence he had not complied with the talah-i-mawasibat or the talab-i-ishhad and this is the question which we have now to decide. The plaintiff in his evidence stated that as soon as he heard of the purchase from a friend he at once said "I am a pre-emptor; I have a claim (main shafi hun; mera haq hai)."
2. As to the second demand the plaintiff says that he brought his witnesses, repeated the same words, asked the vendee to take his money and when the vendee refused, he mentioned that he had clearly made the first demand and called on the witnesses to witness the refusal of the vendee. It is said that the first demand was bad, because, the plaintiff did not expressly state that he claimed his right of pre-emption, and the second demand is said to be bad, because, although reference was made to the prior demand, witnesses were called upon to witness not the first demand, but to witness the second demand and the refusal of the vendee to the same. As to the first point the following passage will be found in Hamilton's Hedaya at page 551: "It is not material in what words the claim is preferred, it being sufficient that they imply a claim. Thus if a preson say "I have claimed my shaffa" or "I shall claim, my shaffa," or "I do claim my shaffa," all these are good, for it is the meaning and not the style or mode of expression, which is here considered." The words, the plaintiff states he used, were possibly equivocal, but a witness named Abdul Ghafoor was called and he says that "when the plaintiff was informed that the house was sold, ho at once said that he was a pre-emptor and would take the house and told Nannhe his brother to take money and asked us to accompany him." It was for the lower Court to decide upon the evidence whether or not the plaintiff had clearly implied that he was laying claim to pre-empt the house. This is a question of fact and we are bound by the finding of the Court below.
3. A number of cases have been cited to us, but none of them are exactly in point.
4. The case of Mubarak Husain v. Kaniz Bano 24 A, W.N. 201 is perhaps the nearest in its circumstances to the present case. There the plaintiff in making the second demand made no reference to the fact that he had made a prior demand. The learned Chief Justice and the late Mr. Justice Burkitt held that it was essential that a reference should be made to the first demand. In the present case reference was made by the plaintiff in presence of the witnesses to the first demand. The learned Chief Justice quotes in his judgment the Full Bench case of Rujub Ali Chopedar v. Chundi Churn Bhadra 17 C. 543 (F.B.). "It is absolutely necessary that at the time of making this demand (i.e., the second demand) reference should be made to the fact that the talab-i-mawasibat had been previously made, and this necessity is not removed by the fact that the witnesses to both demands are the same." The Chief Justice proceeds: "We can well understand why the law in this respect should be so strict. The second demand is not made for the information of the witnesses, but for the information of the vendee or vendor to whom it happens to be made."
5. Assuming this to be the ground for the importance of referring to the first demand at the time or making the second demand, the present case is clearly distinguishable, because the first demand was expressly referred to, although the witnesses were not invoked to bear witness to it. It is then said that the witnesses were not witnesses to the second or the first demand, but were merely the witnesses to the vendee's refusing to sell. The refusal of the vendee to sell implies at least a previous demand. We think there is no force in the appeal and we dismiss it with costs including in this Court fees on the higher scale.