2014 PLP 2036 (YLR)

MRS. IRSHAD QAISER, J.

Petitioners/defendant Amin-ul-Haq has filed the present revision petition against the judgment and decree dated 15-12-2011 passed by the learned ADJ, Swabi by which he dismissed the appeal of petitioner and maintained the judgment and decree dated 12-2-2010 passed by the learned Civil Judge, Swabi.

2. Precisely stated the facts of the case as enumerated from the record as well as in the judgment impugned are that petitioner is vendee of the land measuring 11 kanals 16 Marlas situated in Moza Ghulam Tehsil and District Swabi which he had purchased through. Mutation No. 310 dated 23-1-2003.

3. Plaintiff Zarbakhshah predecessor-in-interest of present respondents instituted suit to preempt the sale deed on the ground of superior right of pre-emption. Performance of talbs were pleaded. The suit was contested by vendee/petitioner and submitted his written statement and raised various preliminary objection mainly on the ground that preemptor had not ful filled the requirement of Talb-e-Muwathibat and Talb-e-Ishhad in accordance with the provision of section 13 of Pre-emption Act, 1987. After completion of necessary formalities and recording the evidence pro and contra the suit was decreed by the learned Civil Judge by means of judgment and decree dated 12-2-2010 which was maintained and upheld on appeal by the learned ADJ vide judgment dated 15-12-2011 which has now being assailed before this Court by way of revision petition.

4. Learned counsel for the petitioner contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective by both the Courts below which resulted in serious miscarriage of justice. In order to substantiate the said contention it is pointed out that the provision of section 13 of N.-W.F.P., Pre-emption Act, 1987 have been misinterpreted and misconstrued. That the pre-emptor has not performed the Talbs in accordance with law. That the date, time and place of Talb-e-Muwathibat have not been proved. That notice of Talb-e-lshhad has not been sent to petitioner as plaintiff failed to prove the same. That Ibrahim Said, who had allegedly informed the respondent/preemptor about the sale, had not been produced as witness. It is further contended that the appellate Court has over looked and ignored the inconsistencies and material contradictions in the deposition of the witnesses produced by the respondent. In support of his arguments he relied on 2007 SCMR 1830, 1995 MLD Peshawar 1061, PLD 2006 Lahore 37, 2007 SCMR 401, 2007 SCMR 1719, 2007 SCMR 870, 2011 CLC Islamabad

903. These arguments were rebutted by learned counsel for the respondent and while supporting the judgment of both the Courts below had contended that plaintiff/respondent had fulfilled all the legal requirement of Talbs in accordance with law as required under section 13 of Pre-emption Act, 1987. That the petitioner has pointed out certain contradiction but these are very minor and ignorable contradictions which have rightly been ignored by the trial Court. That plaintiff has superior rights of preemption and both the Courts below have rightly granted decree in favour of plaintiff. He relied on PLD 2003 Pesh: 179, 2007 SCMR 1233, 2001 SCMR 798, 2004 YLR 824 and 2009 SCMR 240.

5. I have carefully examined the contention as agitated on behalf of parties in the light of relevant provision of law and record of the case.

6. The first and the most important question for determination is that whether plaintiff had fulfilled all the legal formalities, required for the performance of Talb, in accordance with the provision of section 13 of Pre-emption Act and as directed by the Apex Courts.

7. It is settled law that Talb-e-Muwathibat has to be made as soon as plaintiff gets knowledge of transaction of sale. Factum of Talb-e-Muwathibat being question of fact it has to be alleged specifically in plaint and has to be proved through evidence in Court. Plaintiff is required to mention date, time and place in the plaint which he has done similarly, he is required to mention the samein his evidence before the trial Court.

8. In para No.2 of the plaint it is contended that on 1-2-2003 at 1-00 p.m. at his shop he was informed by informer Ibrahim Said son of Sultan Said about the disputed sale in the presence of Noor Shumal and Mazhar Jameel and on the receipt of information he there and then made Taibe-Muwathibat and declared his intention to preempt the suit property.

9. During the trial plaintiff was examined as P.W.5 but he has not uttered a single word about the date and time of the information. He simply stated:-- He failed to point out the date and time when he made the demand.

10. More over in his plaint he had given the reference of his own shop where he received information but in his statement he stated that he was informed when he was present in the clinic of his son. The mention of date, time and place in the plaint as well as in the evidence are necessary and if one of them is missing Talb-e-Muwathibat would be missing. It is a settled law that pleadings of the parties are not substitute of evidence and it being not substantive evidence, the averments made in the pleading would carry no weight unless proved from the evidence in the court or admitted by the other party. The aforesaid principles are supported by the following judgment 1986 CLC 288, 1992 MLD 1879, 1991 CLC 1937. Reference is also made to PLD 2003 SC 594, 2007 SCMR 870 and 2007 SCMR 1719 where in it is held:-- "It is a settled law that pleadings of the parties are not substantial piece of evidence unless and until the averment made in the pleading proved from the evidence in Court". It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim. Reference is made to 1991 SCMR 703, 2001 SCMR 1443. It is also settled law that party can only succeed according to what was alleged and proved as law laid down by Apex Court in case "Amir Shah's, 1998 SCMR 593."

11. It is admitted fact that plaintiffs did not adduce any evidence to prove the averment of plaint with regard of Talbs. Noor Shumal and Mazhar Jamil in whose presence the alleged Talb-e-Muwathibat made are examined as P.W.6 and P.W.7. P.W.6 Noor Jamil also failed to utter a single word about the date and place and time of the Talb. He simply stated:-- P.W.7 Mazhar Jameel though mentioned the date and time and place in his examination in chief but in cross-examination he admitted; - From the perusal of record it reveals that plaintiff failed to make compliance in accordance with the dicta of section 13 of Pre-emption Act 1987. It is the requirement of law that the evidence in this regard should be unimpeachable and confidence inspiring but the evidence provided by plaintiff in this regard is contrary in nature and does not inspire confidence. It is also important to note that the plaintiff also failed to produce the material witness i.e. informer Ibrahim Syed who allegedly first informed the plaintiff about the said disputed transaction. Plaintiff has not given any reason as to why he was unable to produce the witness who first informed him about the sale. The non-production of informer is also fatal to the suit of plaintiff as the plaintiff has not mentioned any reason in his statement as P.W.5 as to why he has not produced the said witness. In this way he has withheld the material piece of evidence. In such situation the strong inferences would be that he was not present in the majlis and he was not an informer that no Talb was performed in his presence. Reference is made to 2003 CLC 1775, 2002 SCMR 235, 1999 CLC 1735, 1998 CLC 1190 and 2007 SCMR 401.

12. It may be mentioned that provision of section 13 of the Act 1987 can only be regarded to have been complied with when all steps of performance of talbs preceding the filing of the suit are duly performed. In Haji Muhammad Saleem versus Khuda Bakht, PLD 2003 SC 315 it was held:-- "Moreover the question of Talb-e-Muwathibat is not mere technicality vis- -vis the superior right of pre-emption. The law as well as fact is that the very right of pre-emption is not activated unless Talb-e-Muwathibat is performed. It should not be dubbed as a mere technicality at time it acquires such dimension that it became more important than the superior right because it essentially is a sine qua non of the right of pre-emption. The latter might exist but is useless unless the former is performed. Had Talb-e-Muwathibat been a mere technicality, this Court in "Said Kamal Shah's case PLD 1986 SC 360 would never have gone to the extent of saying that Talb-e-Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provision qua Talb-e-Muwathibat or Talb-e-Ishhad it was on the basis of such verdict from this Court that tens of thousands of pre-emptors in the country were non-suited because of non-assertion and performance of Talb-e-Muwathibat though not required by the then prevailing preemption laws in the country. What we want to emphasis is that Talb-e-Muwathibat should not be taken lightly and should not be considered as a mere technicality. Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of a right of pre-emption". All these facts lead to the conclusion that Talb-e-Muwathibat should be taken seriously as required by law and should not be considered as a mere technicality.

13. Coming to the second demand i.e. Talb-e-Ishhad, reference may be given to the written statement filed by the defendant/vendee. In para 2 of the written statement, he has denied the notice of Talb-e-Ishhad. In the event of denial of notice, the burden shifts to the pre-emptor to prove that notice was served. Though copy of the notice and registry receipt was produced and also examined P.W.2. Amjad Ali who produced register general in respect of Registry No. 538, but in cross examination he admitted that he had not booked the registry in question. Moreover it is not clear that the registry receipt is in respect of the notice, copy of which is available on file. It is settled law that photo copy of such notice, even if produced would not be cut evidence of service of notice. Reference is made to 2005 SCMR 1231. Moreover, the plaintiff also failed to produce the post man to prove that the notice was duly served. In the recent judgment reported as "Bashir Ahmad v. Ghulam Rasool" 2011 SCMR 762 the apex Court has held the Talb-e-Ishhad would not be proved when it is not established that the notice of said Talb was received by the vendee. The relevant under":-- "It is true that the respondent through production of witnesses amply proved that notice of Talb-e-Ishhad was sent to the petitioner, but it is equally true that it was not proved on record that in fact the same was served upon the former, inasmuch as it was not brought on record that he refused to accept/receive the notice. Under the circumstances, it was the duty of the respondent to have at least produced the Postman, through whom notice was allegedly got served upon the petitioner, to prove that notice was actually sent to him at the right address and he received or refused to receive the said notice".

14. Keeping in view the judgment of the apex Court referred above, I am firm in my view that plaintiff/preemptor had failed to prove Talb-e-Ishhad.

15. It is proper to mention here that respondent pre-emptor did not produce any evidence to prove the contents/pleas/stand taken in the plain by him. Therefore, all the contentions raised by the learned counsel for respondent or finding of the trial Court as well as appellate Court are based on misreading and non-reading of evidence. As regard the finding of learned ADJ on issue No. 3 is concerned it may be noticed that in his capacity as Appellate Court the learned ADJ possessed the jurisdiction to come to his own conclusion, on the basis of evidence adduced before the trial Court by the parties and resultantly, he could competently reverse the finding of the trial Court on the question of fact involving in issue No.3.

16. It is established proposition of law that finding on question of law or fact, however, erroneous the same may be recorded by the Court of competent jurisdiction can not be interfered with by the High Court in exercise of its revisional jurisdiction under section 115 C.P.C. unless such finding suffer from jurisdiction defect, illegality or material irregularity.

17. Keeping in view the facts and circumstances of the case I hold that since both the Courts below i.e. trial Court and Appellate Court had committed material irregularity by misreading and non-reading of record; therefore, impugned judgment of both the Courts below are set aside. Consequently the suit of the respondent is dismissed as he failed to prove Talbs. Revision petition is allowed with no order as to cost. MH/75/P Revision allowed.