2020 PLP 52 (CLCN)

AHMAD ALI, J.

Through this petition, the petitioners have called in question the vires of Judgments and Decrees dated 13.05.2017 and 11.06.2012 passed by the learned Addl. District Judge XI, Peshawar and learned Civil Judge-XXVII Peshawar, respectively, whereby both the parties held equally entitled to the suit property and thereby the suit of respondent/plaintiff stood decreed to the extent of half of the pre-empted land.

2. Facts of the case necessary for the decision of present Civil Revision are that the respondent No.1/plaintiff instituted a suit seeking therein decree of preemption against petitioners and the respondent No.3 in respect of the property mentioned in the headnote of plaint sold through mutation No.8108 dated 15.08.2008 and details of Talb-i-Muwathibat and Talb-i-Ishhad have been given in the Para Nos.2 and 3 of the plaint. The suit was contested by respondents on the ground that they are also joint owners in the suit Khata. The learned trial court framed issues, recorded evidence of parties and then vide Judgment and Decree dated 11.06.2012 decreed the suit of respondent No.1/plaintiff to the extent of half of the suit land. In the appeal by petitioners/ defendants, the learned Additional District Judge-XI, Peshawar, modified the decree of learned trial court to the extent that the pre-emptor and vendees would get the suit property equally distributed between them as per capita vide Judgment/Decree dated 13.05.2017. Feeling aggrieved of the grant of pre-emption decree in favour of respondent No.1/ plaintiff, petitioners have filed the present petition.

3. I have heard arguments of the learned counsel for parties and have gone through the record with their valuable assistance.

4. Meticulous sifting of the record reveals that both the learned courts below have decided the issue of talabs in favour of the plaintiff. It is the case of plaintiff that he received the information of sale through Haider Zaman on 11.11.2018 at 04:00 pm in the Masjid Gulab Ustad in the presence of Zafar Ali at the time of Asar Prayer. However, when the witness of Talb-i-Muwathibat namely Zafar Ali appeared in the witness box as PW-4 and he in his examination-in-chief omitted the time of jumping demand. The relevant excerpt from the statement of PW-4 runs as under:

5. In the pre-emption suits, time, date and place of performance of Talb-i-Muwathibat are sin qua non and witnesses of the jumping demand are required to give such details in their evidence to establish the performance of first talb. The witnesses of Talb-i-Muwathibat had omitted the time of the performance of such Talb and even he did not tell that for what prayer they were present in the masjid.

6. Besides the witnesses of the performance of the Talb-i-Muwathibat have also contradicted the point of the place of this talb. PW-4, Zafar Ali, the witness of jumping demand during his cross-examination stated that they after taking-off their shoes were sitting in the courtyard of the masjid at the place of offering Prayer. The relevant passage is quoted below: At another place during cross-examination he stated:

7. The informer, PW-3, during his cross-examination contradicted the place stated by PW-4 and stated that the place where he informed the plaint was situated inside the masjid and was not the place of offering prayer. The relevant sentence runs as under:

8. This contradiction in the place of conveying information and performing jumping demand goes deep into the roots of pre-emptor's case and takes down the entire superstructure of the pre-emption. Thus, preemptor failed to prove the time and place of the performance of jumping demand, and as such, he was not entitled to the decree as granted by the two learned courts below. Guidance derived from the case of Ahmad Hassan v. Muhammad Aslam (2007 SCMR 962).

9. As far as the second demand i.e. Talb-i-Ishhad is concerned the same was also scanty of the proof. It is an admitted fact that the notices of Talb-i-Ishhad were scribed by the legal advisor/counsel of pre-emptor and that pre-emptor after signing these notices left the same with his counsel and it is still shrouded in the mystery that who despatched these notices to defendants. It was also admitted by the plaintiff during his cross-examination that at the time of issuing notices of the second talb, the vendee Shamas-ul-Haq was residing in the Kingdom of Saudi Arabia but notice was addressed to him at his Pakistani address. Also, none of the witnesses have mentioned the date on which the notices were despatched and even this date is not mentioned in the plaint.

10. Defendants in their written statement have raised the preliminary objection that Talbs have not been performed in accordance with the law and procedure. Thus, in the circumstances, plaintiff was required to prove the performance of talbs in a comprehensive manner. Admittedly, the scriber of notices of Talb-i-Ishhad has not been examined. The person who despatched the said notices through alleged registered post was also not produced. Similarly, there is nothing to suggest as to whether the acknowledge due card (AD Card) was also part of said alleged registered post containing alleged notice of Talb-i-Ishhad or not? Apart from this, there is no AD Card on the case record to suggest that the notices were received by vendees.

11. As the notices of Talb-i-Ishhad were not dispatched by the pre-emptor himself and also there is no evidence to show that who packed these notices in the parcel for the purpose of mail through registered post. Defendants had denied the receiving of such notices and also raised specific objection that the talbs have not been performed in accordance with law and procedure. In the circumstances, it was the duty of pre-emptor to produce the evidence to prove the despatch of notices and then to examine the postman to prove the delivery of same to vendees particularly when no AD Card is available on the record. However, neither the person who packed the notices in postal covers and despatched, was examined nor the postman was produced. Thus, it can be safely concluded that the pre-emptor has failed to fulfill the legal requirement of sending notices of second talb through registered post with acknowledgment due card. Guidance derived from the cases of Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) and Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762). Reliance is also placed on the reported judgments of this Court in the cases of Noor Muheet v. Attaullah and others (2014 YLR 2141- Peshawar), Samandar Khan v. Khan Hakim (2011 CLC 899-Peshawar), Amir Muhammad through LHrs and 7 others v. Muhammad Ashraf (PLD 2011 Peshawar 116).

12. For what has been discussed above, I hold that both the courts below have erred in decreeing suit of the plaintiff and both the impugned judgments/decree are the result of misreading and non-reading of material evidence on record. Thus, I accept this revision petition, set aside the impugned judgments and decrees of both the Courts below and dismiss the suit of respondent No.1/plaintiff with no order as to cost. Plaintiff shall be entitled to withdraw the amount, already deposited by him in the learned trial Court. ZC/209/P Revision allowed.