2010 PLP 1055 (CLC)

MAZHAR ALAM KHAN MIANKHEL, J.

A pre-emption suit filed by the present petitioner was decreed in his favour but the appeal of the defendant/respondent was successful whereby the judgment and decree passed by the trial Court was set aside on the point of non-performance of "Talbs" in accordance with law and the question of limitation. Hence the present revision petition.

2. Learned counsel for the petitioner submitted that the petitioner through his attorney performed the `Talbs', the pre-requisite of a pre-emption suit, in accordance with the law. The suit of the petitioner was also within the period of limitation as provided in section 31 of the N.-W.F.P. Pre-emption Act. He further contended that findings of the appellate Court on the point are that the result of misconception of law and evidence on record and requested for setting aside of the same by restoring the judgment and decree dated 23-9-2005 of the learned trial Court.

3. As on the other hand, the learned counsel for the respondents submitted that the attorney had the prior knowledge of the sale and had failed to perform the requisite `Talbs' at the time of knowledge of the sale. The story of performance of `Talbs' as put forth by the petitioner is totally concocted one and belied by the evidence and record brought by the petitioner himself and thereby supported the judgment and decree of the Appellate Court.

4. Learned counsel for the parties were heard and record of the case was perused.

5. The record of the case reveals that the petitioner pre-empted the impugned sale effected through mutation No.2087 dated 26-6-2003 by alleging the performance of `Talb-i-Muwathibat' on 8-9-2003 at `Sham vela' by the attorney of the petitioner namely Imran Khan when the factum of sale was disclosed to him by one Nasir Khan son of Muhammad Khan and thereafter notice of `Talb-I-Ishhad' was accordingly issued.

6. Attorney of the petitioner had performed the requisite `Talbs' on behalf of the petitioner and then had filed the pre-emption suit on his behalf. No doubt, the power of attorney executed in favour of his son Imran Khan reflects that all such powers of making of `Talbs' and filing of pre-emption suit were delegated to him through the deed of attorney available on the record Exh. P. W.4/1 but the fact which cannot be ignored is that the power of attorney was executed on 10-5-2003 and the deed of attorney further depicts that title of the case Zahoor Khan v. Zareef Khan was also there, whereas the impugned mutation i.e. 2087 was entered on 15-5-2003 and then was attested on 26-6-2003. The relevant wordings shown in the power of attorney are reproduced for ready reference:--

7. Such entries could have been believed as he has clearly stated if the attorney of the petitioner had not admitted the fact of knowledge of sale prior to attestation of mutation and if seen in this purview, the story of performance of `Talbs' as floated in the plaint can safely be ignored being a concocted and tailored one.

8. The law of pre-emption with regard to the performance of `Talbs' has become almost settled. The would-be pre-emptor under the law is required to perform `Talb-i-Muwathibat' the jumping demand, the moment he comes to know or gets the knowledge of sale in favour of the vendee irrespective of the fact of attestation of mutation in favour of the vendee and then accordingly should perform `Talb-I-Ishhad'. However, the third and the final `Talb' i.e. `Talb-i-Khusumat' has to be fulfilled in the light of section 31 of the N.-W.F.P. Pre-emption Act, 1987 and period of limitation provided for i.e. 120 days starts from the date of attestation of mutation or date of registration of the sale-deed and similarly from the date of possession or knowledge as envisaged in section 31 of the N.-W.F.P. Pre-emption Act. So, the date of attestation of mutation in this context would only be relevant for filing of pre-emption suit and not for making of `Talb-i-Muwathibat' as discussed above. The attestation of mutation in general is considered to be the job of revenue officials and that too for fiscal purposes just to streamline the Revenue Record in their possession. So the performance of 'Talbs, specially the `Talb-i-Muwathibat' in this view of the matter has no nexus with the attestation of mutation and the Act of 1987 overall is also silent to this effect. In this respect, reliance could be placed on Akbar Nawaz Khan v. Sherdil Khan 1995 MLD 1061. The question of date, time, place in pre-emption suits for the first time was raised by his lordship Mr. Justice Sardar Muhammad Raza Khan as he then was and this view after facing many ups and downs is holding the field.

9. As far as question of limitation is concerned, the suit of petitioner against the sale Mutation No.2087 dated 26-6-2003 was filed on 8-9-2003 which is well within the prescribed period of limitation.

10. The findings recorded by learned Appellate Court in this regard are based on proper appraisal of the evidence on record and the law on the subject. Interference therewith would not be a justifiable conclusion of instant revision petition for the reasons recorded above. Hence, this petition being meritless, not reflecting any misreading or non-reading of the material evidence on record or unlawful exercise of jurisdiction, is hereby dismissed as such with no order as to costs. H.B.T./122/P Petition dismissed.