2014 PLP 937 (CLC)

WAQAR AHMAD SETH, J.

This revision petition under section 115, C.P.C. is directed against the judgment and decree dated 13-3-2006, whereby District Judge, Battagram, dismissed the appeal of petitioners and maintained the judgment and decree of learned trial Court dated 20-9-2005.

2. Respondent instituted a suit for possession through pre-emption of land, fully described in the heading of plaint, against petitioners on the basis of co-sharership and contiguity of the suit property. Petitioners appeared and contested the suit by filing written statement and learned trial Court after recording evidence and hearing the parties vide judgment dated 20-5-2005 decreed the suit of the respondent. Feeling aggrieved, petitioners preferred appeal and learned appellate Court after hearing the parties dismissed the same vide impugned judgment and decree. Hence, this revision petition.

3. Learned counsel for petitioner argued that respondent has failed to prove the performance of talbs in accordance with law and that photo-copies of notice `Talb-i-Ishhad' had allegedly been sent to the petitioners. It was argued that petitioners had denied receipt of any notice of Talb-e-Ishhad in his written statement and, hence, it was legally obligatory upon the respondent/pre-emptor to prove the service upon the petitioner by producing cogent and reliable evidence. It was argued that learned courts below failed to appreciate the evidence on record in its true perspective and wrongly and illegally decreed the suit of the respondent, which is liable to be set aside.

4. On the other hand, learned counsel for respondent argued that respondent having superior right of pre-emption, on gaining knowledge about the sale transaction, performed Talb-e-Muwathibat followed by Talb-i-Ishhad in accordance with law and learned courts below on proper appraisal of evidence on record rightly decreed his suit.

5. Arguments heard and record perused.

6. Plaintiff had got knowledge about sale transaction on 15-7-2003 at 9-00 a.m. in the shop of one Jumma Khan and Muhammad Zarin the informer told him about the sale transaction. The plaintiff there and then made the jumping demand and declared his intention to pre-empt the suit transaction in presence of the informer. The plaintiff in his plaint and statement has stated that he has sent notices Talb-i-Ishhad but there is nothing on record that the same were ever personally served upon any of the defendants/petitioners. Further, a perusal of notices Talb-e-Ishhad would reveal that one of the notice was original and others are photo-copies thereof. In case of Rooh-ul-Qadoos v. Muhammad Rafique and 2 others reported as 2002 CLC 379, it was held as under:

"S. 13

Pre-emption suit

Talb-e-Ishhad

Issuance of Photostat notice to co-vendees

Validity

Mere fact that one of the vendees was issued original notice whereas the remaining were served with Photostat copies, the same by itself could not be considered a good ground to dislodge the pre-emptor, who was co-sharer in the suit property".

7. Further the plaintiff in his plaint nowhere mentioned the date of sending of notice Talb-i-Ishhad but there is nothing on record that petitioners were ever served through any proper mode or they had knowledge about the so-called notice. Reliance is placed on Muhammad Bashir's case reported as 2007 SCMR 1105 and Mian Pir Muhammad and another v. Faqir Muhammad reported as PLD 2007 SC 302.

8. Thus, the respondent had not fulfilled the requirements of section 13 of N.-W.F.P. Pre-emption Act, 1987 in proving the essential demands to exercise his right of pre-emption over the disputed property, hence, the courts below have wrongly and illegally decreed the suit of respondent, which are liable to be set aside.

9. In addition to the above, it is also observed that present respondent/plaintiff Umar Rehman stepped into the shoes of his father Amal Jan on 15-9-2003 after attestation of the inheritance mutation whereas he alleged the Talb-e-Mawathibat on 15-7-2003, notice of Talb-e-Ishhad on 19-7-2003 and suit was filed on 8-9-2003 i.e. before becoming the owner on 15-9-2003 vide inheritance mutation.

10. In the plaint at para-3, respondent/plaintiff has said that Amal Jan has died and he is the son/L.R without mentioning the date of death. In the examination-in-chief while appearing as P.W.3, he has stated that his father died 5/6 years back and is the only son/L.R, whereas in the cross-examination of D.W.1, it has come that Amal Jan has died some one year ago, from the date of cross examination, and was alive but was ill at the time of filing of instant suit. It is also on record that respondent/plaintiffs are four brothers and one sister. All this creates confusion regarding the fate of respondents/plaintiff's father Amal Jan and respondent/plaintiff failed to bring on record cogent evidence in the shape of death certificate or else that when his father died because inheritance mutation has been attested on 15-9-2003 i.e. after the Talb-e-Mawathibat etc. and even the institution of the suit. No doubt attestation of mutation is only an executive step to give effect to the law of inheritance but in a situation where the date of death is not definite/certain, the Talb-e-Mawathibat etc. including the institution of suit does not correspond the date and time for the purpose of exercising the right of pre-emption.

11. Consequently, this revision petition is allowed. Impugned judgments and decrees of the Courts below are hereby set aside and suit of plaintiff/respondent stands dismissed. No order as to costs. AG/356/P Petition accepted.