2014 PLP 2183 (YLR)

MUSARRAT HILALI, J.

Called into question is the judgment and decree dated 23-5-2011 of learned Additional District Judge-V, Mardan whereby appeal of the petitioner against the judgment and decree dated 14-12-2011 recorded by learned Civil Judge-III, Mardan has been dismissed.

2. Succinctly, facts of the case are that petitioner filed a suit for pre-emption through exercise of right of pre-emption in respect of property measuring 5 kanals, 19 marlas and 2 sersai represented by various Khasra numbers situated in Mauza Fatima District Mardan as per jamabandi for the year, 2006/07 in lieu of sale consideration of Rs.6,00,000 or whatever to be held by court. It is averred in the plaint that respondents have purchased the disputed property without any notice to petitioner in lieu of sale consideration of Rs.6,00,000 vide Mutation No.2187 dated 20-5-2008 but in order to defeat the petitioner's right of pre-emption an exaggerated amount was entered and attested in the mutation. According to the petitioner, he is co-sharer, contiguous owner and participator in the special rights attached with the suit property, thus, has got superior right of pre-emption while respondents were strangers having no such right. He got knowledge of the suit transaction on 13-9-2008 at 4.00 p.m. in his baithak in presence of witnesses Sabz Ali and Musabat Khan through informer Muhammad Jan and Lal Said, hence there and then declared his intention to exercise right of pre-emption over the suit property. Thereafter notices of Talb-i-Ishhad in presence of above named witnesses were sent to respondents but with no fruitful result. The respondents were put on notice, who contested the suit by filing written statement. After framing of issues and recording of evidence, the suit of the petitioner was dismissed and similarly the appeal, hence necessitated the filing of instant revision petition. Arguments heard. Record perused.

3. In the instant case, the petitioner claimed superior right of pre-emption in respect of the suit property on the basis of co-ownership and contiguity and also having allegedly performed the requisite talbs mentioned in section 13 of the Pre-emption Act, 1987. In pre-emption suit, the petitioner has to first prove that he is co-owner, contiguous owner and has also performed the three requisite talbs in accordance with the said provision of law. The petitioner in order to prove his case has mainly relied on the statement of Patwari Halqa, who appeared as P.W.2. This witness produced jamabandi pertaining to the year, 1993/94, 1998/99, 2002/03 and 2006/07, which does not indicate the petitioner as co-owner in the suit property before impugned transaction dated 20-5-2008. He went on to say that petitioner was contiguous owner of the property in question but after partition the petitioner lost his status being contiguous owner, thus, the petitioner could not prove his right of pre-emption without any shadow of doubt and has failed to establish such qualification, therefore, scrutiny of evidence qua talbs would be a futile exercise and would not benefit the petitioner as he has failed to prove his right of pre-emption in either way and if the very right does not exist, then there was no question of making any demand.

4. Apart from the above, both the learned courts below after appraisal of entire evidence have recorded concurrent findings on question of law and fact to which no exception could be taken and that too when the same are neither perverse nor arbitrary. No illegality, irregularity or jurisdictional defect is shown to have been committed by learned courts below while recording the disputed findings. No misread-ing or non-reading of evidence is pointed out by learned counsel for petitioner, which could justify interference by this court in its revisional jurisdiction, a limited one. For the aforementioned reasons, this revision petition being devoid of legal merits is dismissed with no order as to cost. C.M. 1051/2011 having become redundant also stands disposed of. AG/S-143/P Revision dismissed.