2023 PLP 1825 (MLD)

DR. KHURSHID IQBAL, J.

This revision petition was filed by Noor Din (petitioner) against the judgment and decree of the Additional District Judge/Izafi Zilla Qazi-I, Buner, passed on 27.02.2014, vide which, he dismissed the appeal of the petitioner and upheld the judgment and decree dated 20.09.2012 of the Civil Judge/Illaqa Qazi-IV, Buner.

2. Fact precisely are that a Kanay (respondent) and one Zareen purchased certain land in Khasra Nos. 2631 and 2632 in Mouza Amnover, Tehsil Gagra, District Buner, vide mutation No. 3747 attested on 21.10.2011. The petitioner brought a suit for pre-emption, alleging that he is a co-sharer in and a participator in the immunities and appendages of the disputed land. He stated to have got knowledge of the sale on 19.11.2011, at 03:00 a.m., in Malaysia while talking to one Ajmal via a mobile phone call from Malaysia. At that time, one Behroz Khan and a Khona Gul were stated to have been present with Ajmal Khan in his Baitak in whose presence he allegedly expressed his Talb-i-Muwathibat. He maintained that later on, he sent a notice of Talb-i-Ishhad to the respondent through one Bazid Khan son of Abdul Wahab, his attorney. Finally, he instituted the suit for pre-emption against Kanay only. The respondent submitted his written statement. He denied the pre-emption right of the petitioner. Issues were framed and evidence of both the parties was recorded. The trial Court, after hearing arguments of counsel for the parties, dismissed the suit of the petitioner vide judgment and decree dated 20.09.2012. Appeal preferred against the aforesaid judgment and decree also met the same fate.

3. Arguments of counsel for the parties heard and perused the record.

4. Perusal of record reveals that through the impugned mutation, the land in dispute was sold out to one Kanay, the respondent, and the other person, namely, Zarin Said, consisting of two Khasra numbers, No.2632, the disputed one and another, bearing No.2631. The petitioner brought the present suit for partial pre-emption in respect of the share sold out in Khasra No.2632. When the suit was filed, instead of sale mutation, fard Jamabandi was attached with the plaint, which was in respect of Khasra No.2632 only and the sale consideration mentioned in the plaint was Rs.1,550,000/-. The trial Court while considering the fard Jamabandi, directed the petitioner to deposit 1/3rd of the sale consideration of Rs.1,550,000/-. As such, he deposited Rs.516,670/- as 1/3rd of the price he mentioned in the plaint, which is, too, less and even less than the amount appearing in the referred Fard Jamabandi in respect of Khasra No.2632. On calculation, 1/3rd of the aforesaid amount comes out to be Rs.642083/-. Seen this in juxtaposition with the sale mentioned in the mutation, 1/3rd comes out as Rs.728,333/-. The trial Court dismissed the suit on merits. However, the appellate Court took notice of this fact. It follows that the petitioner did not come himself to the Court for the deficiency. Reference is made to the cases Wahid Bakhsh v. Abdul Qayum and another [1997 MLD 2945 (Peshawar High Court, D.I Khan Bench)], Muhammad Iqbal v. Jahanzeb Khan [1999 MLD 2475 (Peshawar High Court, Abbottabad Bench)], Mst. Mah Jehan v. Abdul Maroof [2000 MLD 814 (Peshawar)], Asfandvar Khan v. Ghazanfar Ali and 5 others [2011 MLD 466 (Peshawar)]. In a recent case Wali Khan v. Waheed Ghani Khan [2013 MLD 360 (Peshawar)], it has been observed: "6. [...] The bare reading of aforementioned two provisions clearly provide that as far as the initial payment of 1/3rd of pre-emption money is concerned, the legislature has provided a penalty for its failure, which results in dismissal of the suit, as provided in subsection (2) of section 24 of the Act. Thereby, the provisions of section 24 would be regarded as `mandatory'. On the other hand, section 25 relating to the time period fixed for payment of balance amount of the pre-emption money at the conclusion of the trial, does not provide any penalty for its failure. Hence, the same is to be considered as `directory' and not `mandatory'."

5. The suit was brought against Kanay, one vendee only. Hence, it is hit by partial pre-emption being one of the vendees in respect of one Khasra number. In Saliad-ur-Rehman v. Safiullah and another [2017 CLC Note 47 (Peshawar)], this Court has held: "5. [...] As such, not only the principle of implied waiver would be applicable to him but the performance of `Talbs' would also be beyond the period of limitation prescribed by the law. Although, there has been allegation of inclusion of name of third vendee, Sibghatullah, through fraudulent means, subsequently, but the petitioner/plaintiff has not been able to point out on record any application or complaint moved by him in this respect after the alleged fraud came to his notice. Needless to say that inclusion of the name of third vendee, Sibghatullah, in the sale mutation is glaring on the record, and simple omission of his name from the final order/report of Tehsildar would not prove to the contrary in the absence of anything in support of the order of the attesting Tehsildar, especially when the sale consideration of Rs.4,00,000/- has jointly been paid by all the three vendees to the vendor. In such a situation, the suit would, admittedly, fall within the ambit of partial pre emption, and not maintainable under the law i.e. section 19 of NWFP Pre emption act, 1987, as well as judgments cited at the bar by the learned counsel for respondents. It may be added here, for the sake of arguments, that there appears no scope for including the said Sibghatullah in the suit for pre-emption as in that case the petitioner/pre-emptor would not be able to meet the mandatory requirements of 'Talbs' within the prescribed time, against the said Sibghatullah."

6. Now coming to the fulfillment of notice Talb-i-Ishhad, the petitioner. He examined the Registry Clerk (Fazal Rahim/PW2), who furnished evidence of having issued the registered letters purportedly containing the notice. He didn't mention that the AD cards were also accompanied the registered post. No evidence was produced to prove that the notice was delivered. The other alleged factual evidence relating to writing of notice Talb-i-Ishhad, its signing/thumb impression by the marginal witnesses and its delivery to the respondent are materially contradictory. In a case Bashir Ahmed v. Ghulam Rasool [2011 SCMR 762 (Supreme Court of Pakistan)], the Supreme Court has observed: "4. [...] It has further been held that if service of notice was denied by the vendee, then it was for the pre-emptor to prove service of notice by producing Postman, who allegedly made the endorsement [...]"

7. In another case Allah Ditta through L.Rs. and others v. Muhammad Anar [2013 SCMR 866 (Supreme Court of Pakistan)], the Supreme Court has held: "2. [...] As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre- emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. [...]"

8. Yet another significant aspect of the case is that the petitioner did not appear in person in the witness box and all the proceedings including preparation of alleged notice Talb-i-Ishhad, were conducted through his attorney, namely, Bazid Khan. In this respect guidance is sought from the case Abdul Qayyum v. Muhammad Sadiq [2007 SCMR 957 (Supreme Court of Pakistan)], in which it has been ruled: "5. [...] This is an admitted fact that attorney of the pre-emptor was not present in the meeting in which he claimed to have performed Talb-i- Muwathibat and had no personal knowledge about the date of sale and making of performance of Talbs by the pre-emptor rather his statement was based on the knowledge of the pre-emptor who despite being available, did not appear in the witness-box. The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-i-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be substitute of the pre emptor under the law .... It is also a fact that the attorney of pre-emptor had no direct knowledge of the performance of Talb-i-Muwathibat by the pre-emptor, therefore, his statement regarding performance of Talb-i-Ishhad was based on a hearsay knowledge. [...]." [underlining supplied].

9. The petitioner alleged that while he was talking with one Ajmal Khan via his cellular phone from Malaysia, who informed him about the pre-empted sale and all of a sudden, he expressed his right of pre-emption over the sale. The petitioner did not come to the witness box to prove his above contention that two witnesses were present in the sitting on the eventful night while he, after having came to know about the impugned sale through telephonic conversion, fulfilled Talab-i Muwathibat. The statements of informer and alleged witnesses are fully inconsistent with the stance of the petitioner regarding the performance of Talb-i-Muwathibat, thus the petitioner failed to prove the same through trustworthy and reliable evidence.

10. In the light of above reappraisal of evidence and the legal principles on the subject, I reached to the conclusion that the pre-emption is partial, l/3rd of the sale consideration has not been deposited and Talabs were not proved.

11. Resultantly, the instant civil revision petition stands dismissed being devoid of merits. MQ/129/P Revision Petition dismissed.