2017 PLP 378 (MLD)

LAL JAN KHATTAK, J.

This revision petition under section 115, C.P.C. is directed against the judgment and decree dated 06-03-2014 of the learned Additional District Judge/Izafi Zila Qazi, Matta Swat whereby the respondent's appeal, against the judgment and decree dated 30-09-2011 of the learned Civil Judge/Ilaqa Qazi-II Matta Swat, has been accepted.

2. Brief facts of the case are that the respondent filed a suit for exercising his right of pre-emption against the petitioner whereby landed property falling in Khasra Nos. 776, 777, 778 and 779 of Moza Bara Durushkhela of District Swat was purchased by the latter through sale mutation No. 2372 attested on 10-04-2010. Petitioner contested the suit by filing his written statement wherein he refuted the respondent's claim. Parties adduced their evidence on the case issues whereafter the learned trial Court vide judgment and decree dated 30-09-2011 dismissed the suit which dismissal was impugned in appeal and the learned appellate Court through judgment and decree impugned herein accepted the appeal and resultantly pre-emption suit of the respondent was decreed, hence the instant revision petition.

3. It is worth to mention that earlier the learned appellate Court vide judgment and decree dated 11-05-2012 had remanded the case to the learned trial Court for its decision afresh which decision was impugned by the petitioner in revision petition before this Court which was accepted on 08-10-2013 and while setting aside the remand order, the learned appellate Court was directed to decide the appeal on its merit.

4. Arguments heard and record gone through.

5. Perusal of the case record would show that the learned trial Court in its judgment dated 30-09-2011 has held that respondent/pre-emptor had performed his Talb-i-Muwathibat in accordance with law and issue No. 2 framed to the above effect was decided in his favour and against the petitioner, however, respondent was non-suited on the ground that he had no superior rights in the pre-empted land against the petitioner which finding has been reversed by the learned appellate Court and resultantly the respondent's suit was decreed.

6. Admittedly, the petitioner had not challenged findings returned by the learned trial Court qua performance of Talbs by the respondent but it is well settled that a revisional Court can reverse an erroneous finding if it is found that same was not borne out of case evidence notwithstanding the fact that such finding remained unchallenged in appeal or cross-objection. A High Court while exercising its revisional jurisdiction in a case before it can make any order which circumstances of the case may warrant to secure the end of justice. Wisdom in this regard is derived from cases reported in 2002 CLC 662, 2006 CLC 1827 and 2013 YLR 1013.

7. On the touchstone of the above, this Court would see whether the respondent had performed his Talb-i-Muwathibat in accordance with section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987? Record shows that in order to succeed in establishing his right of pre-emption, respondent/pre-emptor appeared before the Court as PW 1 and deposed that on 25-07-2010 he was present in his Hujra at 6:00 P.M. along with Bakht Nawab and Sher Muhammad Khan when one Umar came there and informed him about the sale transaction on which he declared his intention to pre-empt the same whereafter he performed his Talb-i-Ishhad. Though, Bakht Nawab and Sher Muhammad Khan appeared as PW 2 and PW 3 as witnesses of the respondent's Talb-i-Muwathibat but pronounced aspect of the case is that he didn't produce his informer Umar before the Court to establish that after getting information from him about the sale transaction he had performed his first demand there and then. Production of informer Umar was vital for the reason that between attestation of the sale mutation and the information allegedly conveyed by Umar to the pre-emptor sufficient time by then had elapsed as the sale mutation was attested on 10-04-2010 and the respondent had received information qua the sale on 25-07-2010. It is noteworthy that said Umar is co-villager of the respondent and according to a suggestion given to PW 3, he was personal servant of the respondent. Therefore, his production before the Court was necessary so as to test veracity of his deposition through cross-examination. Furthermore, the respondent has given no reason or explanation for not producing his informer before the Court. Presumption which this Court will draw from his non-production would be that had he been produced before the Court; he might not have withstood the test of cross-examination qua the fact of his receiving and conveying information regarding the sale transaction to the respondent. It has been held by the honourable Supreme Court in a number of cases that production of informer is must. Reliance is placed on 2007 SCMR 1491 and PLD 2015 SC 69.

8. As the pre-emptor didn't produce his informer in order to corroborate the performance of his Talb-i-Muwathibat and no explanation of any sort for his non-production has been given by him, therefore, it is held that he has failed in proving his case of preemption in accordance with section 13 of the Khyber Pakhtunkbwa Pre-emption Act, 1987 and resultantly he cannot enforce his rights of pre-emption.

9. Thorough and careful examination of the case record would show that the respondent has not legally performed his Talb-i-Muwathibat which is sine qua non for the enforcement of a right of pre-emption, therefore, he has made out no case of pre-emption. The learned trial Court has not appreciated the case evidence qua the respondent's Talb-i-Muwathibat in its true perspective and in accordance with law which fact too has been overlooked by the learned appellate Court.

10. For what has been discussed above, in the considered opinion of this Court, the impugned judgment and decree of the learned appellate Court is not tenable and by accepting this revision petition, same is set aside and resultantly the respondent's suit of pre-emption is hereby dismissed for his failure to perform the requisite Talabs under section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. ZC/346/P Revision allowed.