1995 PLP 1077 (CLC)

‑‑‑‑S. 13‑‑‑Suit for pre‑emption ‑‑‑Institution of suit by two pre‑emptors‑‑ Factum of Talb‑i‑Muwathibat, however, remained confined to one pre‑emptor (as per evidence on record) who stood non‑suited, leaving only one pre‑emptor in the field who had neither made Talbs nor had lie appeared in Court to allege as to when he made Talb‑i‑Muwathibat and when he attained knowledge of transaction in question ‑‑‑Talb‑i‑Muwathibat being pure act of personal nature could be described amicably by the party itself and not by the person holding power of attorney on his behalf‑‑‑Failure of pre‑emptor who was left alone to pursue the suit (other pre‑emptor having been non‑suited during pendency of suit) to appear personally and to depose about Talb‑i‑Muwathibat was a circumstance that seriously affected his credibility and bona fide ‑‑‑Pre emptor was not entitled to decree for pre‑emption in circumstances. S. Zafar Abbas Zaidi for Petitioners. S. Mastan Ali Zaidi for Respondents. Date of hearing: 19th July, 1994. Mir Qalam Khan son of Mir Addat Khan ahd Mir Ghani Shah son of Khalil Khan brought a suit for declaration‑cum‑possession through pre emption against Falak Sher and Gul Hussain Shah etc. of village Jhando Khel, Bannu that the transaction vide mutation 12674 attested on 26‑3‑1991 was in fact a sale and not an exchange and that they had a superior right of pre emption for which they had made `Talb‑e‑Muwathibat' on 24‑2‑1991 when the transaction had become known to them on the date of recording of the statement of transferor before the Revenue Officer.

2. The matter was contested and after recording of evidence, the learned Senior Civil Judge, Bannu vide his judgment dated 10‑9‑1991 and the learned Additional District Judge, Bannu vide his judgment dated 22‑7‑1992 arrived at concurrent findings that the pre‑emptors had a superior right of pre‑emption, that they had validly made the `Talabs' under section 13 of the Pre‑emption Act and hence entitled to the decree as prayed for. Such concurrent finding is challenged by Falak Sher vendee through the instant revision.

3. The plaintiff‑pre‑emptor has considered the sale to be complete on the date when the statement of the transferor was recorded on 24‑2‑1991. Let us see if what evidence he has adduced in support of what he alleges.

4. In para 1 of the plaint the pre‑emptor admits having gained knowledge of the transaction on 24‑2‑1991 but in his examination‑in‑chief he distinctly and specifically admits having made `Talb‑e‑Muwathibat' on 26‑2‑1991. By this single statement alone, a `Talab' made after the lapse of two days is not at all accepted. It is never mentioned in the plaint as to who informed the plaintiff about the transaction, as to what was the time and who were present around. Keeping the matter wide open for any improvements in future, it was conveniently introduced only at the evidence stage that one Muhammad Ghani Shah and another Zahirullah were with the plaintiff when he made `Talb‑e- Muwathibat. Quite interesting it is to note that the mode of making `Talab' is identified with another custom in the area under which the people claiming title to a land go physically to the land in dispute, resort to firing in the air and make proclamation of their right. Little realising the difference between that proclamation, locally known as "Yagh" and `Talb‑e‑Muwathibat' defined in section 13 of the N.‑W.F.P. Pre‑emption Act, 1987, the present pre‑emptor instead of making a jumping demand went all the way to the suit land to make such proclamation. Only Muhammad Ghani Shah and Zahirulah were accompanying the pre‑emptor who are not mentioned in the plaint. According to plaintiff Mir Ghani Shah, the matter was for the first time disclosed to him by a `Patwari' who is though known to him yet he does not know his name. Mir Ghani Shah never made `Talab' before that `Patwari' who had informed the plaintiff on the date when the mutation was attested on 26‑3‑1991. Muhammad Ghani Shah (P.W.4) and his co‑witness Zahirullah while appearing in Court have not specified the date of `Talb‑e‑Muwathibat' and has generalised the factum by saying "one day". According to Muhammad Ghani Shah, the same custom of "Yagh" dominates his mind. In the cross‑examination he says that about the transaction they had come to know at Bannu City while the `Talab' was made in the house of Muhammad Ghani Shah. The one who disclosed the news at Bannu is neither known nor produced as a witness. From the statement of Muhammad Ghani Shah it appears that the knowledge of transaction was disclosed to him by the plaintiff and not for the first time by anyone else to the plaintiff. The first disclosure of transaction is said by P.W. Zahirullah to have taken place sometimes at Lakki Gate and sometimes at Ghalla Mandi, Bannu. Sometimes the informer is not disclosed and sometimes it is said to be one Akrarn Khan. Such Akram Khan is never produced before the Court. The crux of the evidence on record is that the plaintiffs have desperately failed to prove or even satisfactorily allege the factum of `Talb‑e -Muwathibat'. Sometimes it is referred to the date of statement and sometimes to the date of attestation but one thing is categorically admitted that there was a difference of two days between the knowledge and the making of `Talab' which is fatal for a per‑emptor suit. Both the Courts below have totally mis interpreted the evidence.

5. Another damaging aspect of the case is that the suit was brought by two pre‑emptors namely Mir Qalam and Mir Ghani Shah. The entire evidence qua `Talb‑e‑Muwathibat' remains confined to Mir Ghani Shah who stands non‑suited in the present case leaving only Mir Qalam in the field who has never appeared in Court to allege as to when he made the `Talab' and when he attained the knowledge of the transaction. The technical argument that it is legal for him to appear through a special attorney, is not valid and appreciable in cases of `Talb‑e‑Muwathibat' which is a pure act of personal nature and which can be described amicably by the party himself. The bona fide are also checked when such plaintiff volunteers as witness and surrenders to subject himself for cross‑examination which, in case of `Talabs' is lengthy as well as intricate. The failure of Mir Qalam, the only decree‑holder to appear personally and to depose about `Talb‑e‑Muwathibat', is a factum that seriously tells upon his credibility and bona fides. This factum was not appreciated by the two Courts below in its true perspective. They have. fallen into material irregularity.

5. Consequently the revision petition is accepted, the impugned judgments of both the Courts below are set aside and the pre‑emption suit of Mir Qalam Khan is hereby dismissed with costs. AA./1719/P Revision petition accepted.