2014 PLP 2141 (YLR)

ROOH-UL-AMIN KHAN, J.

Through instant revision petition the concurrent findings of facts recorded by the two courts below have been questioned, whereby petitioners' pre-emption suit has been concurrently dismissed by both the courts below.

2. Brief but relevant facts forming the background of instant revision petition are that petitioner Noor Muheet (now dead and represented by his legal heirs,) filed a pre-emption suit in respect of sale Mutation No.2976, dated 28-2-2000. As per averments in the plaint, he came to know about the suit sale on 2-3-2000 (Thursday) at 1600 hours in his Baithak, situated in village Saikot, through one Haji Muhammad Sharif son of Nawab Khan; in presence of his son Muhammad Rafiq, and he immediately perform Talb-i-Muwathibat, there and then, in presence of these witnesses. Later on in confirmation of the first talb, he sent notice Talb-i-Ishhad, on 4-3-2000, to vendee-defendant Noor Mooen (now dead and represented by his legal heirs).

3. The averments of the plaint were seriously controverted by vendee-defendant in his written statement, wherein, he categorically denied the issuance and receipt of notice Talb-i-Ishhad and performance of Talb-i-Muwathibat as well. The controversial pleadings of the parties resulted into framing of issues. Pro and contra evidence was recorded and on conclusion of trial, the learned trial Court, dismissed the suit of the petitioner/pre-emptor vide judgment dated 28-6-2007, against which, the petitioner-pre-emptor filed appeal before the learned Appeal Court, but it met the same fate vide judgment dated 18-3-2009. Hence, this revision petition.

4. I have heard the exhaustive arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.

5. For successful exercise of right of pre-emption it is essential that as soon as the pre-emptor acquired knowledge of sale of pre-empted property, he should make immediate demand for his intention to assert his right of pre-emption without slightest loss of time. After performance of the first requisite Talb i.e. Talb-i-Muwathibat in terms of section 13 of the N.-W.F.P. Pre-emption Act, 1987, the pre-emptor had another legal obligation to perform i.e. making, of Talb-i-Ishhad, as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat and for giving effect to the provisions of section 13 of the Act ibid; it would be mandatory to mention in the plaint the date, place and time of performance of Talb-i-Muwathibat and thereafter to prove the same through cogent and coherent evidence. For successful exercise of right of pre-emption, the proof of superior right of pre-emption, performance of Talb-i-Muwathibat and then Talb-i-Ishhad, in their respective chronological order, are sine qua non. If the case of the pre-emptor is deficient of any one of these legal requirements, his suit is bound to fail. No doubt, the petitioner/pre-emptor has given detail about the date, day, time and place of performance of the first requisite Talb viz Talb-i-Muwathibat, but mere mentioning of all these details in the plaint would not be sufficient to prove the stance of the petitioner unless proved through cogent, and confidence inspiring evidence. The performance and proof of Talb-i-Muwathibat, is not a mere technicality. The right of pre-emption is not activated unless 'Talb-i-Muwathibat' is performed. The principles set by the Hon'ble Supreme Court in Mian Pir Muhammad's case (PLD 2007 SC 302) are not meant just to mention the details of date, time and place of performance of Talb-e-Muwathibat in the plaint, but it is also requirement of the law, as per the ratio of the judgment (supra), that these details, must be proved through cogent evidence in the Court. The requirement of mentioning of all the details in the plaint is imperative, so that the pre-emptor may not improve his case during the trial, or to make a departure from his pleadings. The right of pre-emption being a feeble right is to be proved strictly in accordance with law, with cogent, coherent and trustworthy evidence.

6. Thus, taking the instant case at the touchstone of the guideline laid down by the Hon'ble Supreme Court in the judgment (supra), it can be safely concluded that the pre-emptor has not proved the talbs. Pre-emptor in support of his claim appeared as P.W.3, who reiterated the contents of his plaint in his statement he stated that after performance of Talb-i-Muwathibat he sends notice Talb-i-Ishhad Exh.P.W.2/1 to vendee-defendant, scribed by Shah Zaman Petition Writer, signed by him, P.W. Muhammad Rafiq and one Zawahid Khan. As per averments in the plaint, the pre-emptor has performed Talb-i-Muwathibat in presence of his son Muhammad Rafiq and informer Muhammad Sharif, so both these witnesses should be the witnesses of Talb-i-Ishhad. But perusal of notice Talb-i-Ishhad depicts that the same has been signed/thumb impressed only by the pre-emptor, Muhammad Rafiq and one Zawahid Khan and not by Muhammad Sharif, the informer, in whose presence Talb-i-Muwathibat was allegedly performed. P.W. Muhammad Rafiq has not been examined during trial. Zawahid Khan has appeared in the witness box, but his statement would be of no significance because Talb-i-Muwathibat has not been performed in his presence. Moreover, P.W. Zawahid Khan has introduced new facts by stating that he was present in his Baithak when pre-emptor Noor Muheet Khan and his son Muhammad Rafiq came and requested him for becoming a witness to notice Talb-i-Ishhad. He accepted their request and accompanied them to Shah Zaman Petition Writer, who scribed the notice and he thumb impressed the same, but not a single word has been stated, by the pre-emptor about the facts introduced by P.W. Zawahid Khan. Muhammad Sharif, informer, was examined as P.W.5. He has categorically stated that he had only informed the pre-emptor about the suit sale and that he is witness only to Talb-i-Muwathibat. He has not stated a single word about scribing of notice Talb-i-Ishhad or his signature/thumb impression over the same. From divergent statements of the above important witnesses, it can easily be gathered that the pre-emptor has not performed the requisite Talbs in accordance with section 13 of the N.-W.F.P. Pre-emption Act, 1987. Talb-e-Muwathibat play a role of ignition in process of pre-emption and failure of the pre-emptor to prove the performance of Talb-e-Muwathibat, the courts are not required to move a step ahead, because discussing the other factors like Talb-e-Ishhad, Talb-e-Khasoomat and superior right of pre, emption etc. would be a futile effort.

7. Subsection (3) of section 13 of the N.-W.F.P. Pre-emption. Act, 1987, provides that where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre-emption. In the section ibid the words "attested by two truthful witnesses" clearly indicates the veracity and number of witnesses. Thus, any departure of the pre-emptor from the provisions of ibid section would certainly be fatal to his case. The pre-emptor has alleged to have performed Talb-i-Muwathibat in presence of Muhammad Sharif and Muhammad Rafiq and thereafter he send notice Talb-i-Ishhad. Perusal of statement of P.W. Muhammad Sharif reveals that he has not stated a single word about Talb-i-Ishhad while P.W. Muhammad Rafiq has not been examined. Thus, the non-production of Muhammad Rafiq witness to Talb-i-Muwathibat as well as notice Talb-i-Ishhad would certainly damage the case of the petitioner/pre-emptor as both the Talbs could not he deemed to have been proved in light of mandate of section 13 of the N.-W.F.P. Pre-emption Act, 1987.

8. Moreover, record divulges that defendant-vendee has specifically denied the performance of Talb-e-Muwathibat, as well as Talb-e-Ishhad, in his written statement. He has also categorically denied the receipt of notice Talb-e-Ishhad in Court statement, as well. In these circumstances, it was imperative for the pre-emptor to produce Postman qua proof of notice Talb-i-Ishhad, but he did not bother to produce the Postman who, delivered the said registered letter to the vendee/defendant. By now, it is settled law that pre-emptor, shall prove the service of notice Talb-e-Ishhad, by producing the concerned Post-man, when receipt of notice, is denied by the vendee/defendant but the petitioner has failed to perform this mandatory legal obligation. In this backdrop of the events, it is safely concluded in light of the ratio of Muhammad Bashir and other's case 2007 SCMR 1105 and Basher Ahmed's case 2011 SCMR 762, the plaintiff/pre-emptor has failed to prove performance of Talb-e-Ishhad, in accordance with law.

9. The scope of revisional jurisdiction is very limited in which the Court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor it can upset the same, even if, on appreciation of evidence a different view can be formed, unless these findings are shown patently illegal; without jurisdiction or the result or bare misreading and non-reading of material evidence, based on conjectural presumptions or erroneous assumption. No such infirmity has been pointed out by learned counsel for the petitioner in the impugned judgments, which may warrant interference of this court in its revisional jurisdiction. In this regard reference can be made to cases titled, "Haji Muhammad Din v. Malik Muhammad Abdullah" (PLD 1994 SC 291), and "Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others" (2000 SCMR 346). The same view has been reiterated by the august Supreme Court in cases titled: "Muhammad Rashid Ahmed v. Muhammad Siddique" (PLD 2002 SC 293) and "Muhammad Idrees and others v. Muhammad Pervaiz and others" (2010 SCMR 5).

10. For what has been discussed above, this revision petition being without any substance, stands dismissed. JJK/421/P Revision dismissed.