1992 PLP 2018 (MLD)

Dates of hearing: 25th January and 18th March, 1992. The respondent Nasrullah filed a suit for possession through pre- emption in respect of the sale in favour of the petitioner brought about by Mutation No.1851 dated 12‑4‑1988. It was averred in the plaint that the plaintiff was not given any notice before the sale; that when he came to know about transaction then he served the defendant‑vendee through a notice sent to him by registered post; that the sale price of Rs. One Lac shown in the mutation was fictitious and collusive. The plaintiff asserted his superior right of pre‑emption on the basis of co‑sharership, participator in immunities and appendages. This claim of the plaintiff was resisted by the defendant who controverted in his written statement the correctness of the allegations made in the plaint.

2. At the Trial Patwari Halqa was examined as P.W.‑1 who stated that the plaintiff is co‑sharer in the suit property whereas the defendant has no such qualification.. He also brought on record extracts from Jama Bandi and Khasra Gardawari. He produced a copy of daily diary and the five years average. According to him the price of the suit land comes to Rs.44,039 on the basis of five years average. Ali Shan General attorney of the plaintiff appeared as P.W.2 and stated that the suit land has been sold for Rs.16,000 but excessive amount has been entered in the mutation in order to create hurdles in enforcing the right of pre‑emption. He sated that on 5‑4‑1989 he returned from Abu Dhubi and came to know about the mutation from the Patwari; that on 8‑4‑1989 he made `Talab‑i‑Ishhad' through a registered notice to the defendant. The witness also stated that the plaintiff is possessed of superior right of pre‑emption as against the defendant and that the price of the suit land per kanal is Rs.1,

000. Ataullah appeared as P.W.‑3 and gave evidence regarding the notice Exh.P.W.2/2 and stated that he was a witness to the execution of the notice. Taj Muhammad who appeared as P.W.‑4 is the other witness to the notice Exh.P.W.2/2 and conferred his signature over it. On the side of the defendant Muhammad Afzal appeared as D.W.‑1 and while refuting the correctness of the statement of the plaintiff deposed that he has purchased the suit land for Rs. One lac; that the plaintiff knew about the sale but issued no notice in time and that the claim of the plaintiff is incorrect. On consideration of the above evidence the learned Trial Court held the plaintiff to be possessed of superior right of pre‑emption and that the notice attached with the plaint was genuine and had been served in accordance with law. The suit of the plaintiff was accordingly decreed on payment of Rs.44,039.41 i.e. the price assessed in the five. years average. This decision was confirmed in appeal by the learned District Judge.

4. The petitioner‑defendant has impugned the correctness of the said decisions in this revision petition.

5. The learned counsel arguing for the petitioner challenged the decisions of the learned Courts below on Issues Nos.2 and 3 relating to Talab and the genuineness of the notice Exh.P.W.2/2. He also objected to the fixation of the sale price on the basis of five years average and accordingly challenged the findings of the Courts on Issues Nos.8 and 9 which cover the allegations of sale price and the market value. While elaborating his point in respect of non‑compliance of various Talabs as enunciated in section 13 of the N.‑W.F.P. Pre‑emption Act, 1987 it was argued that there is no evidence of `Talab‑i‑Muwathibat' having been made; that the alleged notice containing `Talab‑i‑Ishhad' has no reference to `Talab‑i‑Muwathibat' and that this notice has been issued on 8‑4‑1989 the date on which the suit was instituted and was, therefore, fabricated and collusive. In this context he referred to the statement of P.W.‑2 and pointed out that there was no reference to `Talab‑i‑Muwathibat' in it. Similarly the statements of PV.3 and P.W.4 were also read to show absence of any reference to Talab‑i-Muwathibat'. In order to support his contention that in absence of compliance of the mandatory provision of Section 13 the suit of the plaintiff was liable to dismissal he referred to 1991 SCMR 2001, 1991 CLC 209, PLD 1985 Kar. 161 and PLD 1987 Kar.

515. On the other hand the learned counsel for the respondent read out the following portion of the notice". so as to show that `Talab‑i‑Muwathibat' had in fact been made earlier to the notice. Although he admitted that the notice did not bear any date but stated that the postal receipt has the date of 8‑4‑1989 on it. It was also urged that the respondent is living abroad and, therefore, he should not be placed at par with the inhabitants of the village in matter of fulfilling the requirements of Talabs. He also referred to the statements of the witnesses to prove that in fact the first Talab i.e. `Talab‑i‑Muwathibat' was made. He also read the statement of Mohammad Afzal D.W:1 to point out that he had not said anything about Talab. To support his viewpoint he relied on PLD 1992 Quetta

9. Learned Counsel pleading for the petitioner also criticised the fixation of sale price on the basis of Five years average as according to him the trial Judge was bound either to have appointed a commission to find out the market value or should have sent for one year average from Patwari. This submission was also refuted by the learned _counsel for the respondent as according to him the learned Courts have rightly deter‑mined the sale price on the strength of the five years average.

6. I considered these submissions in the light of the relevant evidence on record and the law applicable to the matter in controversy.

7. The points which arise for determination in this case are, firstly, as to whether `Talab‑i‑Muwathibat' and `Talab‑i‑Ishhad' have been made in accordance with the relevant provision of the Section 13 of the N.W‑F.P. Pre‑emption Act, 1987 and if not so then what would be its effect over the claim of the plaintiff. Secondly, whether assessment of sale price of the pre‑empted land on the basis of five years average in view of rapid rise 'in prices was just and proper. Reference would be necessary to the pleadings and evidence on record to answer the first point. 1n para No.4 of the plaint it is stated. P.W.‑2 Ali Shah appearing for the plaintiff as his attorney stated." It is thus apparent that `Talab‑i‑Muwathibat' has never been made. The perusal of notice Exh.P.W.2/2 reveals That it does not contain any reference to Talab‑i-Muwathibat'. Although the learned counsel for the respondent pointed oust these words in the notice. to show that this referred to `Talab‑i‑Muwathibat'. I do not agree with this argument as these words do not indicate that `Talab‑i‑Muwathibat' as required by law was made. Therefore, it is not correct that this is a reference to such a Talab. There is no date on the notice Exh.P.W.2/2 but the postal receipt show that it was despatched on 8‑4‑1989 and the present suit was also instituted on the same date. This notice neither appears .genuine nor would it strictly fulfil the spirit and requirement of `Talab‑I-Ishhad'. It has been laid down in case "Government of N: W.F.R: through Secretary Law Department v. Malik Syed Kamal Shah PLD 1986 SC 360 (Shariat Appellate Bench) that strict compliance with the various Talabs is mandatory and in absence of that pre -emption right cannot be imposed. It is by now settled that the Talabs as, enumerated in section 13 of the N.‑W.F.P. Pre‑emption Act, 1987 are essential for claiming right of pre‑emption and, therefore, there must be strict proof o its observance. If it is found that `Talab‑i‑Muwathibat' and `Talab‑i‑Ishhad" have not been made in accordance with law then the pre‑emptor would be legally debarred from enforcing his right of pre‑emption. Talab‑i‑Muwathibat: has not at all been made and also there is no reference of it having been made in Talab‑i‑Ishhad. Similarly the notice containing Talab‑i‑Ishhad also appear.; to be fabricated. Therefore, the lower Courts 'should have dismissed the sui1i for non‑fulfilment of the essential ingredients for claiming the right of pre -emption. This view is supported by the precedent cases referred to above. The, decision of both the Courts on Issues No.2 acid is, therefore, bad in law and is accordingly reversed. Consequently, it is held that the plaintiff having no fulfilled the requirement of section 13 of the N: W.F.P. Pre‑emption Act, 1987 was not entitled to the decree of pre‑emption and his suit was liable to dismissal. Regarding the second point of fixation of the sale price on the basis of five years average it is a common experience that prices of almost all commodities, escalate rapidly and, therefore, ordinarily one year average should be adopted for working out the price of the pre‑empted land. The learned Trial Court was required to have appointed a commission for determining the price of the land in question but as that has not been done an the remand of the case for this purpose would prolong the hardships of both the parties, therefore, from the five years average Goshwara (Exh.P.W.1/4) on record I worked out one year average on the basis of mutations attested one year prior to the date of attestation of the impugned mutation. According to the one year average so worked out the sale price per kanal comes to Rs.2,768.85 and for the total area it is Rs.43,886.23. It is strange that in this peculiar case one year average is less by Rs.153.18 than live years average. Therefore price fixed in the five years average for the suit land is kept intact.

8. In view of the above discussion this revision petition is accepted, Judgments and decrees of both the Courts below are set aside and resultantly the suit of the plaintiff‑respondent is dismissed. Parties are left to bear their own costs. A.A./L391/P Revision accepted.