2015 PLP 1614 (YLR)

LAL JAN KHATTAK, J.

My this judgment shall also decide the connected Civil Revision Petition No. 174 of 2009 as both the petitions are the outcome of one and the same judgment and decree dated 30-3-2009 of the learned Additional District Judge-V, D.I. Khan whereby appeal of the petitioners-defendants and cross-objections of the respondent-plaintiff against the judgment and decree dated 31-1-2007 of the learned Civil Judge-VIII, D.I.Khan, were partially accepted.

2. Brief and concise facts of the case are that respondent-plaintiff Haqnawaz initially filed a pre-emption suit against Zulfiqar, the original vendee of landed property fully detailed in the heading of the plaint. During pendency of the suit present petitioners moved an application for their impleadment as defendants because they had purchased the suit land from the original vendee. This application was accepted by the learned trial court on 29-1-2001 and the petitioners were arrayed as defendants in the amended plaint. The original vendee did not contest the suit and was proceeded ex parte while the subsequent vendees i.e. the petitioners herein contested the suit by filing their written statement. The learned trial court after recording pro and contra evidence decreed the suit to the extent of 39 kanals and 15 marlas against a market value of Rs.3,600 per kanal vide judgment and decree dated 31-1-2007. This decree was impugned by the petitioners in appeal whereas the plaintiff also filed cross-objections against the dismissal of his claim qua 5 kanals. He also objected to the market value of the pre-empted land as fixed by the learned trial court. Both the appeal and the cross-objections were taken together and vide judgment and decree dated 30-3-2009 appeal and the cross-objections were partially accepted. Both the parties have now impugned the aforesaid judgments and decrees through their separate revision petitions.

3. Learned counsel for the petitioners in Civil Revision No. 113 of 2009 contended that judgments and decrees of the two courts below are against law and facts of the case as the respondent-plaintiff has not proved performance of the requisite talbs in accordance with section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 as the pre-emptor has not given time in his court statement regarding performance of his Talb-e-Muwathibat and as such his right of pre-emption is extinguished but even then his suit has been decreed by the two courts below. He contended that informer of the pre-emptor is not a truthful person and his testimony cannot be relied upon. It was next contended that there are discrepancies in the court statements of all the P.Ws. but despite that both the courts below have decreed the respondent's suit. His submission was that the respondent has no superior right of pre-emption against the petitioners who are equally co-sharers in the suit land.

4. As against the above, learned counsel for the respondent contended that talbs have successfully been proved by the pre-emptor and there are no major discrepancies in the statements of the P.Ws. He contended that 5 kanals of land has wrongly been excluded from the decree as the subsequent transfer of suit land was after the issuance of notice of Talb-e-Ishhad to the defendants. The learned counsel further submitted that subsequent change in khatas through official partition would not affect the rights of pre-emption of the pre-emptor as the same were carried out during pendency of the pre-emption suit. He lastly contended that suit of the respondent/pre-emptor be decreed as prayed for.

5. I have heard learned counsel for the parties and gone through the record of the case.

6. Though many points were raised by the respective learned counsel for the parties before this court but as is known paramount consideration in a pre-emption suit is always given to the fact whether the pre-emptor has successfully performed the requisite talbs or not. If from the evidence it is proved that the pre-emptor has proved performance of the necessary talbs according to law only then case to the next issues i.e. determination of real price paid by the vendee to the vendor or any improvement etc; made in the pre-empted land will proceed but in case it is found from the evidence that the pre-emptor has failed in the performance of necessary talbs then in that eventuality the other issues of the case are eclipsed and there will be no need to further proceed with the case on the other issues. Therefore, I take up the issue of talbs first in the case in hand.

7. It is now a settled law that a pre-emptor in order to succeed in the enforcement of his right of pre-emption must give date, time and place of making his Talb-e-Muwathibat not only in his plaint but also in his court statement failing which his right of pre-emption will be extinguished. In this case though the petitioner-plaintiff has averred in his plaint that he came to know about the sale transaction through one Asmatullah on 22-9-1998 at 5 p.m. 'Deegar Vela" at the chowk-baithak of Asmatullah where he performed his Talb-e-Muwathibat but when he appeared before the learned trial court as P.W.5, he deposed that he was told by Asmatullah about the sale transaction on 22-9-1998 at 'Asr Vela' at the chowk of Asmatullah. (under lining for emphasis)

8. Question is whether 'Asr vela' can be equated with any exact time or not. Asr vela in common parlance is equated with afternoon or pre-evening time which is stretched from noon to evening. It cannot be interpreted and equated with any exact time rather it is a duration of time which lasts for 1-1/2 hour or so while the command of law of pre-emption is that in order to succeed in the enforcement of a right of pre-emption the pre-emptor must give the exact time of his performance of Talb-e-Muwathibat. Exact times means and includes minutes and seconds of an event or moment. So from the above discussion it can safely be inferred that 'Asr Vela' does not reflect any exact or definite time when the petitioner allegedly performed his Talb-e-Muwathibat and as such there is failure on the part of the petitioner in the performance of his Talb-e-Muwathibat.

9. Apart from the above, informer of the petitioner, namely, Asmatullah seems to be an interested and overactive person who for his overactiveness cannot be safely relied upon for the reason that he was constantly in touch with the patwari halqa to get information from him about any sale wherever it takes place.

10. The above overactivity and conduct of Asmaullah makes him an unscrupulous person as it is not understandable that why he was so anxious to know about the sale of the suit land when he himself had no intention to the pre-empt the transaction in question. This conduct of Asmatullah shows that he is not a truthful person rather it appears that the story of receiving information of the sale transaction by him from the patwari and then its onward giving to the pre-emptor is concocted one and is for some ulterior motive.

11. Regarding contradiction in evidence of the petitioner and the two witnesses of notice Talb-e-Ishhad record shows that neither the petitioner nor P.W.6 Asmatullah have deposed in their respective court statements about the presence of P.W.7 Rab Nawaz at the time and place when first hand information was given by the informer to the petitioner while Rab Nawaz on the other hand says that at the time of giving information to the petitioner by the informer he was present at the chowk. This statement of P.W.7 cannot be ignored as being important witness of the majless in which the petitioner performed his Talb-e-Muwathibat he must have been cited by the petitioner as witness of Talb-e-Muwathibat. Omission to cite P.W.7 by the petitioner at the time of his Talb-e-Muwathibat has led this court to believe that the story of performance of Talb-e-Muwathibat is doubtful which extinguishes the right of pre-emption of the petitioner.

12. For the above discussion this court is of the view that the pre-emptor has not performed the requisite Talb-e-Muwathibat which is a backbone in establishing the right of pre-emption. Failure in the performance of Talb-e-Muwathibat is sufficient to non-suit the petitioner without dilating upon the other issues raised in the case. The revision petition therefore, is accepted, both the judgments and decrees of the two courts below are set aside and suit of the respondent-plaintiff is dismissed with no order as to costs. JJK/612/P Revision accepted.