2005 PLP 3290 (YLR)

MUHAMMAD RAZA KHAN, J.

In the background of these two revision petitions are two suits for pre-emption against two Mutations Nos. 17353 and 17354 both attested on 28-6-1997. The suits were contested and vide judgment and decree of the learned Senior Civil Judge, D.I. Khan dated 26-2-2004, the suits were decreed in respect of all the land transferred in Khata No.493 whereas the land in Khata No.505 the plaintiff was held entitled to the entire share of defendant No.1 but the share of defendant No.2 was held to be divided equally between the plaintiff and the defendant No.2. Appeals were filed in both the cases by the vendees defendants which were dismissed by the learned Additional District Judge-IV, D.I. Khan on 14-6-2004. Hence these two Civil Revision Petitions Nos.263 and 264 of 2004. Since both the matters are identical in nature the parties are the same and the land is situated in the same Khatas and similar questions of law and facts are involved, hence both these matters are decided through this consolidated judgment.

2. The learned counsel for the petitioners /defendants argued on two factual and legal points. The first, an important mixed question of law and fact, was that the plaintiff/respondent was aware about the sale transaction prior to the sale much earlier than 7-7-1997, when he allegedly made Talb-e-Muwathibat. The second was purely a legal question with regard to the admissibility of evidence of the son in favour of the father in a civil litigation.

3. With regard to the first issue, the contention of the learned counsel for the petitioners is that firstly the son of the respondent had been admittedly visiting the area frequently and the respondent himself' has admitted to have visited the village, therefore, they must have knowledge about the sale prior to 7-7-1997. This has been derived by stretching a sentence appearing in the evidence. The respondent while appearing as P.W.5 had admitted in cross-examination that he had "visited Paharpur prior to 7-7-1997 where the suit-land is situated" but he did not remember the date of such visit. The impugned transaction was made on 28-6-1997 and any visit of the respondent during the period of ten days, i.e. between 28-6-1997 to 7-7-1997 might have raised the possibility of his knowledge about the impugned transaction, but the mere statement that he visited the said village prior to 7-7-1997 does not restrict the date of such visit to the said ten days. The visit in May and June could also be equally true under the said sentence. Similarly, the statement of Hashmatullah, P.W.6 that "he visits the land frequently as and when needed", does not indicate conclusively that he had visited the said land during the said period of ten days. Even if the visit was proved, it would not be sufficient to undo the Talb-e-Muwathibat, because the information about the said transaction and the communication of such knowledge to the pre-emptor were the necessary ingredients to dislodge the pre-emptor on the ground of' non compliance of Talb-e-Muwathibat. Such proof is lacking in this case.

4. With regard to the prior knowledge of the pre-emptor about the sale transaction, the petitioners/defendants have taken pains to procure the evidence of one of the vendors as D. W.4 who has repeatedly referred to the fact that he and the other vendors had, time and again, requested the respondent/plaintiff to purchase the land at the rate of Rs. 17,000 per Kanal, which was likely to be sold for Rs.20,000 per Kanal to the petitioners, but still the pre-emptor/respondent did not agree to purchase it. This fact is nullified by the fact that under section 12 of the N.-W.F.P. Pre-emption Act, 1987, it was obligatory for the vendor to send a written notice to the prospective pre-emptor about sale transaction to eliminate the chances of pre-emption suits. In the absence of the statutory requirement of a written notice, the oral statement could not be believed.

5. Even the said oral statement is self-nugatory. On the one hand the petitioners had tried to show that the vendors had offered the land to the respondent which he refused, but simultaneously, in a bid to avoid the pre-emption suit, an agreement to sell was executed on 18-2-1997 so that the time may be computed from the date of transfer of' possession through the said agreement and to avoid the possibility of pre-emption. Both these facts are stated in the evidence of D.W.4, i.e. one of the vendors. He confirmed the agreement to sell dated 18-2-1997 and the receipt of Rs. 1.20,000 as the advance sale consideration. The remaining amount was received on 28-6-1997, i.e. the date of attestation of mutation. In such a situation, the allegation of sale to the respondent even a day prior to the attestation of mutation, was meaningless because the property has already been sold through the agreement executed more than four months ago and a huge amount was received as a part of sale consideration. So the entire efforts to prove the information of the respondent about the sale transaction is defeated.

6. The other legal issue, with regard to the in admissibility of evidence of son in favour of father, the plaintiff, relating to Talb-e-Muwathibat, was certainly an interesting one. The learned counsel for the petitioners referred to section 3 of the N.-W.F.P. Pre-emption Act, 1987 to indicate the possibility of interpretation of pre-emption suits through seeking guidance from Holly Qur'an, Hadith and Fiqh. Moreover, under section 33 of the Act, all the "matters ancillary thereto have to be decided in accordance with the Injunctions of Islam". Having said so, the learned counsel for the petitioners referred to PLD 2001 Supreme Court 67, where a particular reference has been made to Hidaya, Volume-11 page 360, to show that the testimony of a son in favour of the father was not admissible. This argument was advanced with a unique attempt to dislodge the Talb-e-Muwathibat made by the pre-emptor on the information communicated to him by his son. The learned counsel was of the view that since the interest of the son and the father is the same in the property to be pre-empted therefore, Talb-e-Muwathibat made by a father in the presence of his son or the Talb-e-Ishhad where the son is a marginal witness or the appearance of a son as a witness in a pre-emption case filed by his father shall be violative of the Injunctions of Islam as per Hadith and Fiqh.

7. The philosophy on the basis of which the testimony f the son was not acceptable in civil matters is that the son is likely to support the alleged right of his father as against a third person and, therefore, the testimony of a close blood relative was considered to be the evidence of an interested witness and not believable. However, I am of the view that there is a difference between the testimony to establish a right and the evidence with regard to the occurrence of a fact. The evidence of a son in favour of his father and grandfather, of the wife in favour of her husband, and even of a student (who is entirely dependent for food and clothing on his teacher) in favour of his teacher and vice versa has not been approved as per Hidaya. All of them have been declared as interested witnesses. However, the evidence with regard to the occurrence of a fact shall not fall in this prohibitory domain for the reason that the description of an event may or may not lead to the establishment of a right. Therefore, if the testimony of the son with regard to an event or a fact (or the evidence of other such witness in the close relationship) is excluded, I am afraid, hundreds of pre-emption cases will be defeated which can never be the intention of the Islamic Law of Pre-emption. A son has a distinct personality than his father and fie is entitled to his independent property. If a son gets the information about the sale of a particular land, he cannot be deprived of conveying the information to his father. His father may, or may not be interested in, or entitled to pre-empt such transaction. If the information is conveyed and the father reacts by declaration of Talb-e-Muwathibat in the presence of the son, it may be a valid and legal Talb-e-Muwathibat being a spontaneous demand in the same assembly, or Majlis. Such a Talb could not be delayed for the availability of a disinterested person nor could another person be invited in anticipation of the disclosure of such information and the declaration of intention to file pre-emption suits. The son could validly convey the information of sale to his father. To this extent the testimony of the son will not be a testimony about the existence of a right of a father. It shall be treated as evidence of the fact of his knowledge and transmission thereof to the father. There could be no two views about the admissibility of such evidence. Similarly, if on receipt of such information, the father makes Talb-e-Muwathibat there and then, the testimony about this fact shall also be admissible because there C was no other possibility of testifying the said fact. Hence the evidence of the son with regard to Talb-e-Muwathibat or Talb e-Ishhad shall be admissible in evidence in the case of pre-emption suit filed by his father.

8. If the testimony of the nearer relative is excluded in for pre-emption, shall be deprived forever to enforce their rights of pre-emption because there is no likelihood of communication of information to them through any other source except through their sons, brothers, husbands or fathers. If their testimony is excluded being inadmissible, they shall be deprived of their valuable rights.

9. While appreciating the efforts of Messrs Muhammad Ayaz Khan Qasuria and Haji Nasrullah Khan, Advocates, the learned counsel for the petitioners, agitating an interesting new legal proposition, I express my inability for the reasons recorded hereinabove, to endorse the view that the evidence of the son in favour of the father regarding Talb-e-Muwathibat or Talb-e-Ishhad cannot be believed or relied upon. Thus it is held that the findings of both the Courts below are legally valid and based on correct appreciation of facts and law.

10. Consequently, these revision Shoaib Mehmood Butt v. Iftikhar petitions, being devoid of merit are dismissed. No order as to costs. H.B.T./509/P Revisions dismissed.