2013 PLP 1883 (YLR)

SHAH JEHAN KHAN AKHUNDZADA, J.

This regular first appeal has been directed against the judgment and decree dated 26-9-2011 passed by the learned civil Judge-XII D.I.Khan, whereby suit of the plaintiff/ respondent, namely, Muhammad Aslam, for possession through pre-emption of the suit-land was decreed in his favour against the sale consideration of Rs.86,48,000.

2. Briefly stated facts of the case are that Muhammad Aslam son of Haji Allah Bakhsh, plaintiff/respondent, filed a suit in the court of Senior Civil Judge D.I.Khan against the defendants, namely, Noor Salam and five others, for possession through pre-emption in respect of the suit-land purchased through register Deed No.2121 dated 7-7-2008 measuring 45 kanals 13 marlas which is fully described in the plaint and situated in mouza Kotla Saidan, Tehsil and District D.I.Khan. The plaintiff based his claim on the basis of co-sharership, contiguity, immunities and appendages. It was also averred in the plaint that the suit-land was actually purchased for sale consideration of Rs. 27,39,000 at the rate of Rs.60,000 per kanal, but an inflated and exaggerated amount of Rs.86,48,000 was mentioned in the sale-deed.

3. The defendants contested the suit by flung written statement and the divergent pleadings of the parties gave birth to the framing of the following issues:-- (1) Whether the plaintiff has got cause of action and locus standi? (2) Whether the plaintiff is estopped to sue due to his own words and conduct? (3) Whether suit is maintainable in its present form? (4) Whether suit is within time? (5) Whether the plaintiff has got superior right of pre-emption? (6) Whether the plaintiff has performed all the mandatory talbs in accordance with law? (7) What would be the actual market value of the suit property? (8) Whether plaintiff is entitled to the decree as prayed for in the head note of plaint? (9) Relief.

4. The parties produced evidence which they wished to adduce and the learned trial Judge after considering the same in the light of arguments of the learned counsel for the parties addressed at the bar decreed the suit of the plaintiff/ respondent as prayed for in the plaint vide judgment and decree mentioned above. Feeling aggrieved, the appellants have questioned the same through the appeal in hand.

5. The claim of the plaintiff/ respondent as set out in his plaint is that he is Shafi Sharik, Shafi Khalit and Shafi Jar in the pre-empted khata, while the defendants/appellants had no such qualifications, therefore, he has got superior right of pre-emption and has also performed the requisite talbs mentioned in section 13 of the N.-W.F.P. Pre-emption Act, 1987. On the other hand, the defendants/appellants have denied the superior right of pre-emption of the plaintiff/respondent. In support of his case, the plaintiff/respondent has produced and examined patwari halqa who produced register haqdaran-e-zamin of the disputed khata as Exh.P.W.1/1 and stated that in Khata No.112, Muhammad Aslam, plaintiff/ respondent, was a co-sharer, whereas the appellants/defendants have no such right in the disputed Khata Nos.112 and

132. Likewise, DW-2 who himself is defendant No.1 during cross-examination deposed that the land of the plaintiff/respondent is situated adjacent to the suit-land and he is co-sharer therein. From the above evidence, it is crystal clear that the plaintiff/respondent is co-sharer in the suit Khata No. 112 and the defendants/ appellants are stranger and, as such, he has got superior right of pre-emption.

6. This is a suit for pre-emption where the plaintiff/respondent has to establish the performance of the three Talbs in accordance with the requirements of section 13 of the N.-W.F.P Pre-emption Act, 1987. In respect of the first Talb-e-Muwathibat, the plaintiff/respondent alleged that he got knowledge of the sale transaction in respect of the suit property on 9-9-2008 at 5-00 p.m. in his house situated in mouza Lachra, Tehsil and District D.I. Khan from one Bashir Husain with whom one Muhammad Ismail was also present. He there and then announced Talb-e-Muwathibat and thereafter on 16-9-2008 notices of Talb-e-Ishhad were written and signed by the marginal witnesses, namely, Bashir Hussain and Muhammad Ismail which were dispatched to the defendants through registered AD. In support of his stance, the plaintiff produced the Informer as P.W.6 who affirmed the performance of Talb-e-Muwathibat by the plaintiff/ respondent. He also verified the notice of Talb-e-Ishhad. P.W.7, namely, Muhammad Ismail has also testified the stance of the plaintiff. The scribe of notice of Talb-e-Ishhad was examined as P.W.4 who verified the same. Likewise, the postman, namely, Muhammad Mushtaq has appeared as P.W.2 and stated that he has delivered the registry to Muhammad Yousuf, the special attorney of the defendants/ appellants.

7. From the facts and circumstances of the case discussed above, it is abundantly clear that the plaintiff/respondent has successfully proved his case through cogent and tangible evidence brought on record, which the defendants/appellants have failed to rebut the same through any reliable evidence. Therefore, the learned trial Judge has rightly appreciated the materials brought on record and learned counsel for the appellants failed to point out any illegality, irregularity, misreading or non-reading of evidence in the impugned judgment and decree.

8. Consequently, we find no merit in this appeal which is accordingly dismissed. JJK/209/P Appeal dismissed.