1995 PLP 899 (CLC)

(7) Whether the sale price was fixed in good faith and actually paid? (8) What is the market value of the suit property? ' (9) Whether the plaintiff is entitled to the decree as prayed for? (10) Relief.

8. In order to prove his case the plaintiff‑petitioner produced the following witnesses:‑ (P.W.1) Khyber Zaman, Assistant Superintendent Post of‑rice, (P.W.2) Muhammad Bashir Record Clerk/Postmaster Post Office Kala Bagh, (P.W.3) Nazir Muhammad, Patwari Halqa Bagan, (P.W.4) Taj Muhammad himself, (P.W.5) Muhammad Zaman son of Kala, (P.W.6) Asadullah son of Taj Muhammad, and (P.W.7) Mushtaq son of Shad Muhammad.

9. On the other hand, the defendant‑respondent No. 1 (Muhammad Ayub, D.W.1) appeared as his own witness as well as on behalf of defendant respondent No. 2 and closed his evidence.

10. Khawaja Waji‑ud‑Din the then Civil Judge (II) Abbottabad, after going through the record of the case and hearing the learned counsel for the parties came to the conclusion that the suit was not maintainable because the plaintiff/petitioner had not fulfilled the conditions as laid down under section 13 of the N: W.F.P. Pre‑emption Act, 1987 before instituting the present suit and, therefore, he dismissed the suit with costs.

11. Aggrieved by the said judgment and decree of the Civil Judge the plaintiff‑petitioner filed an appeal in the Court of learned District Judge, Abbottabad, Mr. Zia‑ud‑Din Khattak, who vide his judgment dated 16‑11‑1992 upheld the impugned judgment and decree of the learned trial Court and dismissed the appeal leaving the parties to bear their own costs.

12. The plaintiff‑petitioner, not contented with the judgment and decree of the learned District Judge, has challenged its legality‑vires before this Court for the redress of his grievance under section 115, C.P.C.

13. Malik Fazal Hussain, Advocate, learned counsel for the petitioner and Syed Abdus Salam Sarwar, Advocate, learned counsel for the respondents present and heard at length. I have also gone through the record of the case carefully.

14. It must be stated at the outset that in revisional jurisdiction the High Court could/would interfere with the judgments and decrees of the lower Courts only if such subordinate Courts appear to:‑ (a) have exercised a jurisdiction not vested in it, or (b) have failed to exercise a jurisdiction so vested, or (c) have acted in the exercise of its jurisdiction illegally or with material irregularity.

15. In this case the main points which are to be determined by this Court are:‑ "Firstly, as to whether or not the provisions of section 13 of the N: W.F.P. Pre‑emption Act, 1987 were complied with. In other words whether the plaintiff‑petitioner after hearing of the sale had made a jumping demand and expressed his intention to pre‑empt the transaction by claiming his right immediately‑instantly in the same sitting‑`Majlis', and, Secondly, as to whether the plaintiff‑petitioner had or had not fulfilled the requirement of `Talb‑i‑Ishhad' as required under the Muslim Law of Pre‑emption and that in this respect he had produced cogent evidence that it was either made in the presence of the purchaser respondents or in the presence of two witnesses. Needles to mention here that the `Talb‑i‑Ishhad' can also‑be made in the presence of the seller if he is found in possession of the land or on the premises which is the subject‑matter of the pre‑emption suit, in the presence of at least two witnesses (PLD 1993 Supreme Court 391).

16. A perusal of the record, which is available before me, shows that the suit land in this case was sold by the brothers of the plaintiff‑petitioner on 4‑10‑1989 and in this respect Mutation No. 579 was attested. The plaintiff petitioner, it is admitted in the plaint, had made "Talb‑i‑Muwathibat" on 17‑8‑1990 whereas the "Talb‑i‑Ishhad" was made on 26‑8‑1990. The plaintiff petitioner had come to know about the sale of the land by his brothers, as alleged by him, from one Muhammad Zaman (P.W. 5). It was Muhammad Zaman (P.W. 5) who had supplied the copies of the Fard Jamabandis (Exh. P.W3/D‑1 to Exh. P.W.3/D‑3) to the plaintiff‑petitioner which were then appended by him with his plaint. It is in the statement of Muhammad Zaman (P.W. 5) that it was he who had disclosed to the plaintiff‑petitioner the fact of sale and had also given him the copies of the Fard Jamabandis (Exh.'P.W3/D‑1 to Exh. P.W.3/D‑3), who then filed the same with the plaint at the time of the institution of the present suit. Decidedly these Fards were issued by Patwari Halqa to Muhammad Zaman (P.W. 5) on 21‑5‑1990. Muhammad Zaman (P.W.5), while in the witness‑box, stated on oath, that these Fards were given by him to the plaintiff‑petitioner within 14 to 30 days of their issuance to him by the Patwari Halqa. This would clearly mean that the plaintiff‑petitioner had come to know about the sale transaction in June, 1990. However, from the perusal of the record it has come to light that he did not make "Talb‑i‑ Muwathibat" (jumping demand) immediately/instantly as required under section 13(2) of the N.‑W.F.P. Pre‑emption Act. Instead he made the same on 17‑8‑1990 i.e., after about 2 months from the date of his knowledge in respect of the sale which has been pre‑empted by him.

17. Once it is held that the "Talb‑i‑Muwathibat" was not made immediately i.e., in June, 1990 then the "Talb‑e‑Ishhad" (Exh. P.W. 4/2), which was made on 25‑8‑1990, also becomes barred by time, having been sent beyond the prescribed time of fourteen days from the date of knowledge of the sale as contemplated by section 13(3) of the N.‑W.F. P. Pre‑emption Act, 1987. The right of pre‑emption, in the circumstances, therefore, stood extinguished and he would not be entitled to succeed in getting a decree for the possession of the land through pre‑emption. To the same effect are the findings of the learned trial Court as well as the learned lower appellate Court.

18. Since the "Talbs" were not made in the prescribed manner, therefore, I am of the view that the right of pre‑emption could not be legitimately claimed: Accordingly the present suit for pre‑emption is not maintainable.

19. The Courts below have discussed and evaluated the evidence properly with no error or defect in appreciating the material on record. Besides this I have also not been able to find any infirmity in the impugned judgments and decrees of the Courts below, legal or otherwise, therefore, I am not inclined to interfere with the concurrent findings of the Courts below in revisional jurisdiction.

20. This revision petition does not merit consideration at all and is dismissed with costs. AA./1727/P Revision dismissed.