2014 PLP 1325 (MLD)

ABDUL LATIF KHAN, J.

Syed Waqas Bacha, pre-emptor in the matter, has lost his cause at both the lower forums, on the issue of Talbs including non-production of informer.

2. The thrust of the arguments of the learned counsel for the petitioner, Syed Muhammad Attique Shah, Advocate Supreme Court, is that the Courts below have non-suited the petitioner concurrently on the ground of non-production of informer, which was not fatal to the cause of pre-emptor, as other evidence available has been produced and in such eventuality, the production of informer would not be material. He further contended that P.Ws. 5 and 6, the witnesses of Talb-i-Muwathibat and notice Talb-i-Ishhad were produced apart from the petitioner, who himself deposed as P.W.-4 and all the witnesses were not subjected to cross-examination by the other side, with special reference to the non-performance of Talb-i-Muwathibat or non-production of the informer, tantamounts to admission on their part. Reliance is placed in this regard on dictum of apex Court reported in 1991 SCMR 2300. He contended that the performance of Talb-i-Muwathibat was fully corroborated by the witnesses produced by him, in whose presence the incident of performance of Talb-i-Muwathibat took place and in such scenario non-production of informer was not fatal to the petitioner's case. Reliance placed on Muhammad Asim Shah's case, reported in 2006 YLR 1194.

3. As against that, Syed Muhammad Aqil Khan, Advocate the learned counsel representing the respondent vehemently opposed the arguments of the learned counsel for the petitioner and supported the impugned judgments and decrees passed by the Courts below. He contended that non-production of informer would be fatal to the case of the pre-emptor, as his statement was extremely important to the case of pre-emptor. Reliance placed on Muhammad Anwar Khan Kundi's case reported as 2006 CLC 604 and Abdur Rashid's case reported in 2010 YLR 2941. He also raised the point that postman was not examined by the plaintiff in proof of service of notice upon the defendant, which was proved fatal to the case, relied upon PLD 2001 Peshawar 116 and 2012 YLR 2429.

4. I have given my anxious thought to the arguments advanced by the learned counsel-for the parties and perused the record with their able assistance.

5. The sale in the present lis in favour of defendant was made through registered deed No.111 dated 31-8-2008, situated in Mauza Mohib Banda. The plaintiff/petitioner pre-empted the said sale by filing suit for possession through pre-emption on 8-3-2008, asserting his right of pre-emption on the basis of being co-sharer in Khatas, as Shafi Khalt' and Shafi Jaar, further stating that he learnt about the sale on 12-2-2008 at 8.00 p.m. in his house through one Fida Muhammad son of Kamal Shah, informer, in the presence of Syed Arshad Badhsh, Syed Ammad Hussain Badshah and Syed Ghulam Muhammad, when he made Talb-i-Muwathibat, as stated in paragraph 3 of his plaint. He averred in the plaint that on 26-2-2008, he performed Talb-i-Ishahad by sending notice to the vendee defendant.

6. The plaintiff/pre-emptor, apart from official witnesses produced Syed Arshad Badshah as P.W.5 and Syed Ammad Hussain Badshah as P.W.6, apart from his own statement recorded as P.W.4. However, he opted to abandoned Syed Ghulam Muhammad and informer, Fida Muhammad Badshah, in support of the incident of performance of Talbe i-Muwathibat) on the given date, time and place.

7. The vendee defendant contested the matter by filing written statement, raising various legal and factual objections, culminating into issues framed from divergent pleadings of the parties. Defendant deposed as D.W.I. Local Commission was appointed, whose statement was also recorded as C.W. and report submitted by him was placed on file as Ex. C . W :1 /

1. The trial Court non-suited the plaintiff vide judgment passed on 21-12-2010, appeal against which was dismissed by the learned Appeal Court on 6-7-2011, mainly on the ground of failure of plaintiff to perform Talbs in accordance with law with special reference to non-production of the informer, Syed Fida Muhammad Badshah.

8. The provisions of section 13(1) of the N.-W.F.P. Pre-emption Act, 1987 is reproduced for ready reference:-- "13 Demand of pre-emption.

(1)The right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption in the following order, namely: (a) Talb-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-i-Khusumat. Explanation: 1. "Talb-i-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption".

9. This provision envisaged the knowledge of factum of sale by the prospective pre-emptor, secondly such knowledge emanating from a sitting or meeting (Majlis) and thirdly the declaration of his intention toexercise the right of pre-emption on acquiring knowledge. The performance of Talb-i-Muwathibat was necessary, as the same according to law amounts to foundation and the superstructure raised would crumble down, if the same is defective.

10. The plaintiff has unable to explain as to why the informer and one other have not been produced in the evidence. No doubt two witnesses, P.Ws.5 and 6, witnesses of Talb-i-Muwathibat have been produced, but he had no authority to abandon any of the witnesses including informer allegedly present at the time of performance of Talb i-Muwathibat. Non-production of the person, from whom pre-emptor acquired knowledge of sale could lead to an adverse inference to be drawn that he might not have supported the pre-emptor, if had been produced as witness. This leads to the conclusion that no jumping demand established on account of failure of informer to depose before the court.

11. The making of demand was alleged to have made in the presence of witnesses, four in number, out of those two including informer have been abandoned, without any explanation, despite the fact that name of the infomer, which was a pre-requisite and being most important witness, t his examination could not be dispensed with. Under Article 129-G of Qanun-e-Shahadat Order, 1984, adverse inference has to be drawn against the plaintiff/pre-emptor that he might not have supported the pre-emptor, if had been produced as a witness.

12. In order to satisfy judicial mind of the court, the immediate demand as prescribed under the law, was the bounden duty of the plaintiff as the date on which he acquired the knowledge in a sitting (Majlis), wherein he claimed to have received information, from the informer and to lead evidence in line with his pleadings, in order to prove the factum of Talb-i-Muwathibat and failure to put the informer in the witness box would give rise to presumption that pre-emption feared with examination of the witness, who could not stand to the test of cross-examination and in term would not support him or depose against him.

13. No number of witnesses provided under the law for proof of factum of Talb-e-Mwathibat, but once the pre-emptor opted to name certain witnesses in the plaint and based reliance upon the information, disclosed by the infomer in the presence of other witnesses, in that eventuality, he had no authority to relinquish or abandon any of the witness including informer and would under obligation to produce all those witnesses, if capable of giving evidence and subject to the process of court. Legal presumption in absence of any explanation by the pre-emptor as to why the witness was withheld from examination as his witness would definitely result into adverse inference against him. As such the burden heavily lies on the plaintiff to prove the performance of Talb-e-Muwathibat through satisfactory evidence as prescribed under the law has not been discharged.

14. I am therefore, clearly of the view that the concurrent findings of the courts below suffer from no legal defect or infirmity. The same do not warrant interference. For the foregoing reasons, I find no merit in this petition and dismiss the same with no order as to costs. AG/266/P Petition dismissed.