2016 PLP 1 (YLRN)

MUHAMMAD DAUD KHAN, J.

This Revision is directed against the judgment and decree dated 12.06.2009., passed by learned District Judge, Lakki Marwat, whereby on accepting the appeal, set aside the judgment and decree passed by learned Civil Judge-VII, Lakki Marwat dated 24.07.2008 and dismissed the suit of petitioner/plaintiff.

2. Succinct but necessary facts giving rise to the instant Revision Petition are that petitioner/plaintiff/preemptor (herein after called petitioner) filed a suit for possession through pre-emption on all the three grounds allowed by law challenged the mutation No.1720 attested on 18.01.2006, vide which 4 shops situated in Khasra No.254 at Nar Muqarrab Khan Thesil Sarai Naurang was purchased by respondents/ defen-dants (herein after called respondents). It was alleged that the real sale consideration was Rs.5,00,000/- but an exaggerated amount of Rs.13,00,000/- was shown in order to defeat the right of pre-emption.

3. It was averred in the plaint that the petitioner came to know about the sale transaction on 25.01.2006 at 10.00 hours (morning) at Patwar Khana, Serai Naurang during record inspection in presence of Saadullah Jan (brother) and Anwar Ullah Khan son of Sarwar Jan, the petitioner there and then in that Majlis performed Talb-i-Muwathibat, later on wrote Talb-i-Ishhad in presence of witnesses and sent to the defendants/vendees through Registered Post with AD on 26.01.2006 which were returned back due to refusal by the defendants and annexed along with receipt with the plaint.

4. The respondents on appearance controverted the averments of the plaint by submitting written statement. On divergent pleadings of the parties, the trial court framed eleven issues. Parties adduced pro and contra evidence in support of their respective stances. On conclusion of trial, the learned trial court decreed the suit in favour of petitioners. The grounds for decreeing the suit were that the petitioner/ plaintiff is co-owner in suit Khata and plaintiff shops are contiguous to the suit shops, plaintiff is also participator in special right attached to the suit shops and successfully proved the performance of Talbs according to the mode and manner provided in section 13 of the K.P.K Pre-emption Act, 1987.

5. By means of its judgment and decree dated 28.04.2008, the learned Appellate Court accepted the appeal, the suit was dismissed. The reasons of the Appellate Court was that the suit Khata in which suit shop was situated had lost its agricultural character and split into shops due to urbanization for commercial purpose, hence plaintiff could not claim to have superior right of pre-emption over suit property. Moreover, pre-emptor failed to prove the performance of Talbs according to law.

6. Arguments of learned counsel for the parties heard and record perused. The petitioner averred in the plaint that in presence of Saadullah Khan and Anwar Ullah in the Patwar Khana situated in Serai Naruang, from Patwari Halqa at 10.00 AM on 25.01.2006 got knowledge of suit transaction and there and then allegedly announced Talb-i-Muwathibat and later on in presence of witnesses on the same day wrote four notices of Talb-i-Ishhad and sent to the defendants/ respondents on 26.01.2006 through Registered Post with AD. However, the same returned back to the petitioner, undelivered to the defendants on their refusal. The petitioner appeared as PW-3, Saadullah Khan as PW-4 and Anwar Ullah as PW-5, petitioner when cross-examined, he stated that all the three jointly left the house at 09.00 AM and reach the Patwar Khana at 09.30 whereas Saadullah Khan and Anwarullah Khan as PW-4 and PW-5 stated that all the three jointly left the house at 0930 AM and reached the Patwar Khana at 10.00 AM. According to the petitioner at the relevant time other landlords were also present with the Patwari Halqa in the Patwar Khana whereas according to the Statement of Saadullah Khan and Anwar Ullah none else was present with the Patwari Halqa in the Patwar Khana. Moreover, according to the plaintiff they reached to the scribe at 1200 noon but according to Saadullah Khan the notice (four in number) scribed at 1200 noon. PW-5 Anwar Ullah Khan when cross-examined he admitted that the notices were signed by him without reading the same. The contradictory statements of the witnesses suggest that they are not truthful witnesses. Thus petitioner failed to prove Talbs according to law.

8. Furthermore, performance of Talb-i-Ishhad was specifically denied by the defendants in written statement as well as in court statement and the petitioner also alleged in the plaint that notice of Talb-i-Ishhad was returned undelivered. In these circumstances the petitioner/plaintiff was under obligation to produce the postman to prove delivery of registered notice of Talb-i-Ishhad in accordance with law. He produced one Sohail Khan clerk of concerned Post Office as PW-1, who during cross-examination has categorically disclosed that he is unable to state that the envelop was delivered to the defendants or not. In such a situation, it was incumbent upon the plaintiff to produce postman to prove service/delivery of notices Talb-i-Ishhad in compliance with the principle set by the Hon'ble Supreme Court in cases titled "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105), "Basheer Ahmed v. Ghulam Rasool" (2011 SCMR 762) and "Allah Ditta through L.Rs. and others v. Muhammad Anar" (2013 SCMR 866). But he did not produce the concerned postman and thereby failed to discharge the onus of proof. Consequently, the plaintiff failed to prove performance of Talb-i-Ishhad in accordance with law.

9. Now coming to the other issue agitated before me in issue No.6 relating to superior right of pre-emption of petitioner/ plaintiff. The learned trial court held the superior right of pre-emption by observing that according to the Fard Jamabandi of Khata No.186 for the year 2001-2002 as EX.PW2/1, the plaintiff is owner in the suit Khata through mutation No.1614 dated 24.05.2005 and 1728 dated 30.12.2005 and the learned trial court accepted the right of contiguity and right of appendages by considering the handmade map of market produced by the petitioner as EX.PW3/5. The learned trial court as such has erred in law in relying upon the said record and failed to examine the oral and other documentary evidence on record and to determine as to whether on the basis of overall evidence available on record the suit property on the basis of which the right was claimed had retained its agricultural character or undergone a change and was to be treated as commercial land. I have examined the evidence on record from this point of view. The land in shape of shops half marla in Khasra No.254 was purchased vide mutation No.1720 dated 18.01.2006. According to the Khasra Girdawari EX.PW2/5, the suit khasra had been converted into uncultivated land shown as "Ghair Mumkin Dokanat" since Kharif 2000 and onward. Habibur Rehman Patwari Halqa (PW-2) in his cross-examined deposed that suit land is uncultivated and whole Khata has been converted into shops. The relevant statement of Patwari is reproduced as under:- Plaintiff Ubaidullah Jan (PW-3) when cross-examined, he himself admitted this fact by saying that:-- He further stated that:

on record clearly shows that the suit land is situated in the limit of urban area of Serai Naurang Municipality and suit Khata No.186 in which the suit Khasra No.254 is lying has lost the character of agricultural property and this land had been converted into commercial shops. Even pre-emptor also admits the change of nature of suit land, as petitioner land had become commercial in nature since long. In the like case "Dr. Abdul Jamail v. Malik Nazar Muhyuddin and others PLD 1988 Peshawar 13) it was held that if the land on the basis of which the plaintiff has claimed his superior right of pre-emption did not have retained its agricultural character, he cannot claim to be an owner estate (Khata) and consequently has no right of pre-emption over the land in dispute. On relying above principle of law this court in the case "Muhammad Hanif and others v. Subaidar Sher Afzal PLD 1994 Peshawar 188) wherein it has been held: "The land which had not been retained its agricultural character and is now covered by built up area, the pre-emptor cannot be allowed to claim that the suit land is an agricultural and that he has the right of pre-emption thereto." Reliance can also be placed on case titled "Raja Khizar Hayat and others v. Saleh Muhammad" PLD 1986 Lahore 242).

10. In a pre-emption suit of such like nature titled "Muhammad Hussain and others v. Chulam Qadri through legal heirs" (PLD 2006 SC 594). The Hon'ble Supreme Court of Pakistan considered the evidence and came to the conclusion that the land had the characteristics to be classified as urban immovable property and was not pre-emptable and pre-emptor suit was dismissed. In a recent case titled "Muhammad Idrees and others v. Sardar Ali reported in (2013 SCMR 913) the Hon'ble Supreme Court of Pakistan reiterated the above dictum of the law and it has been held: "A close look at the afore-referred provision would indicate that the urban immovable property is not merely the immovable property which fell within the limits of a town as declared by the Board of Revenue but the courts of law could also hold any property to be urban immovable property if there was evidence to that effect. The suit land was a small plot of two Kanals and it was specifically averred in the written statement that it was purchased for building a house; that it was part of the Shakargarh Town; that no custom of pre-emption prevailed at the relevant time. Respondent plaintiff did not lead evidence to prove that it was not urban property. The sale deed itself indicates that the suit land was purchased for construction purposes and three vendors had placed on record their affidavits to the effect that the suit land was not agricultural and further that it was sold for construction purposes. The plaintiff did not lead any evidence in rebuttal. No counter affidavit was submitted and at no stage the Court was requested to summon the deponents of those affidavits for cross-examination. Thus this part of the evidence led by the appellant-defendant remained uncontroverted." In view of above dicta of superior courts as the property in dispute has changed its characteristic since long from agriculture to commercial, the petitioner has no superior right of pre-emption on the basis of co-owner in Khata.

11. The petitioner also claimed the pre-emption right on the basis of participation of right of way but this right is not sustainable. Admittedly suit shops are situated in the Bazar Serai Naurang having a common passage. Petitioner's land and disputed land could not equip the petitioner with right of pre-emption. Reliance can be taken from case titled "Faiz Muhammad v. Chulam Yasin" (2005 YLR 2570) and "Muhammad Khan v. Muhammad Yousaf" (PLD 2003 Lahore 413). In my view these material aspects of the case escaped from the notice of learned trial court. As a result, he by reaching at a wrong conclusion decreed the suit of petitioner. He thereby committed illegality and irregularity while the learned Appellate Court by accepting the appeal of the respondent rightly dismissed the suit of petitioner/plaintiff.

12. It is not merely sufficient to allege the superior right of pre-emption, and performance of Talb-i-Muwathibat and Talb-i-Ishhad in the plaint, but it is also incumbent upon the pre-emptor to prove the same through cogent and reliable evidence. As for as successful exercise of right of pre-emption, the proof of superior right of pre-emption, performance of Talb-i-Muwathibat and then Talb-i-Ishhad, in their respective chronological order, is essential. Any deficiency in these legal requirements will render a pre-emption suit liable to an outright dismissal. In the instant case the petitioner has failed to prove his superior rights as well as performance of Talbs in accordance with law.

13. No such infirmity has been pointed out by learned counsel for the petitioner in the impugned judgment, which may warrant interference of this Court, in its revisional jurisdiction.

14. In view of the above discussion the instant Revision Petition being devoid of merits is hereby dismissed. No order as to costs. ZC/102/P Revision dismissed.