1997 PLP 425 (CLC)

(2) Whether the plaintiff lacks superior right of pre‑emption as defendant is also co‑sharer, contiguous owner and participator in immunities and appendages? (3) Whether the plaintiff has waived his right of pre‑emption? (4) Whether the suit is against law, contrary to Islamic Injunction and liable ' to be dismissed? (5) Whether the plaintiff has got superior right of pre‑emption? (6) Whether the sum of Rs.30,000 was fixed and paid in good faith as sale consideration? (7) Market value? (8) Whether the plaintiff is entitled to the decree as prayed for? (9) Relief.?

3. The learned Trial Court on 9‑4‑1991 decreed the suit to the extent of one Kanal on payment of Rs.15,000 as the pre‑emption amount. Feeling aggrieved the petitioner filed an appeal and the respondent also preferred a cross‑appeal but both the appeals were dismissed by the learned Additional District Judge, Bannu on 4‑7‑1991.

4. Criticising the findings of the learned lower Courts the learned counsel for the petitioner contended that there was no evidence at all on the record to point out that the respondent had made Talb‑i‑Muwathibat on coming to know as the transaction of sale and Talb‑i‑Ishhad also had not been proved in accordance with law as the respondent had examined only one of the two truthful witnesses who had attested the notice whereas he was required to examine both of them as envisaged by Article 79 of the Qanun‑e‑Shahadat, 1984.

5. The learned counsel for the respondent on the contrary submitted that when the respondent learnt about the transaction he immediately sent a Jirga consisting of Said Khan and Hassan Khan to the vendee to persuade him to transfer the land purchased by him in his favour and as such there was a strong presumption that he had made Talb‑i‑Muwathibat. It was further submitted that the statement of one of the witnesses mentioned in the notice was sufficient to prove Talb‑i‑Ishhad.

6. The question of ' Talabs' is a question of fact which is to be proved by evidence and not by presumptions and conjectures. There is not a scintilla of evidence on record that the pre‑emptor had made Talb‑i‑Muwathibat in the same Majlis in which he had learnt about the transaction from Said Khan and Hassan Khan. So much so that while recording his statement in the Court the respondent did not utter a word about Talb‑i‑Muwathibat and the statement of his solitary witness Said Khan is also silent about it. The suit is liable to be dismissed 'on this score alone and as such, there is no need to advert to the contention raised by the learned counsel for the petitioner following observations made in Zafar Ali v. Zainul Abidin and another (1992 SCMR 1886) may be reproduced advantageously:‑‑ "But as held in Ghulam Jilani v. Ghulam Muhammad 1991 SCMR 2001 the second Talb, is by way of confirmation of the first Talb. If there is no first Talb there can be no confirmation thereof. Accordingly, for this reason alone there was no valid second Talb." In this background there can be no dispute with the proposition that the impugned judgments and decrees are the result of misreading of evidence and as such are not sustainable. In the result this revision petition is accepted, the impugned judgments and decrees are set aside and the suit of the respondent is dismissed. Parties to bear their own costs. A.A./2057/P Revision accepted