2001 PLP 963 (CLC)

The petitioner, through the instant civil revision, has called in question the judgment and decree, dated 26‑10‑1994 of the learned District Judge, Malakand at Batkhela whereby the judgment and decree, dated 25‑7‑1994 passed by learned Senior Civil Judge, Malakand Camp Court Dargai was set aside.

2. Facts, in brief, are that the petitioner brought a suit for pre‑emption in the Court of Assistant Political Agent, Dargai with the powers of Deputy Commission under PATA Regulation regarding land measuring two Kanals, 5 Marlas bounded as mentioned in the plaint. On 3‑9‑1991 the learned Assistant Political Agent/D.C.(P.), Dargai returned the plaint to the petitioner on the question of jurisdiction as the interest of the minors was involved in this case and due to this fact the learned Assistant Political Agent lacked jurisdiction. After such return, the case was instituted in the Civil Court where the defendants‑respondents appeared and submitted their written statement. The pleadings of the parties gave rise to the following issues and after a hot‑contest by the parties the learned Senior Civil Judge decreed the suit of the petitioner, However, in appeal the learned District Judge, Malakand set aside the judgment and decree of 'the trial Court and dismissed the suit of the plaintiff‑petitioner. (1) Whether the plaintiff has got a cause of action? (2) Whether the suit is within time? (3) Whether the plaintiff is estopped to sue? (4) Whether the suit is incompetent in its present form? (5) Whether the plaintiff has not fulfilled the requirements of Talabs, if so, its effect? (6) Whether the plaintiff has waived his right of pre‑emption? (7) Whether the defendants have made improvements in the suit property, if so, to what extent and with what effect? (8) What is the market value of the suit land? (9) Whether the plaintiff has got superior right of pre‑emption and is entitled to the decree as prayed for? (10) Relief. The suit of the plaintiff‑petitioner was dismissed chiefly on the ground of not making of the requisite Talabs i.e. Talb‑e‑Muwathibat and Talab‑i‑Ishhad according to the requirements of law.

3. Learned counsel` appearing on behalf of the petitioner has fairly accepted the position that after the annulment of the Pre‑emption Act, 1950 till the extension of the N.‑W. F. P. Pre‑emption Act (X of 1987) the Malakand area was regulated by the General Islamic Law and according to the General Islamic Law the learned counsel accepted that Talabs, were required to be made as the requirement of Talabs is the very demand of the Islamic Law on which the N.‑W.F.P. Pre‑emption Act, 1987 is based, meaning thereby that the learned counsel has accepted that the making of demand was essential in this case to enforce the right of pre‑emption by the pre‑emptor. He, however, argued that there is no failure on the part of the petitioner in making the requisite Talabs. He contended that Talb‑i- Muwathibat was made by the petitioner in pursuance of the respondent vendee and thereafter the petitioner sent notice of Talb‑i‑Ishhad to the respondents. Thus, the requirement of Talbs was duly complied by the petitioner and on this score the findings of the learned Appellate Court are erroneous and outcome of the misreading of the record.

4. On the other hand the learned counsel appearing on behalf of the respondents has defended the impugned judgment and decree of the learned Appellate ,Court on the same grounds which have been incorporated by the learned., District Judge in the impugned judgment.

5. I have heard the arguments of the learned counsel for the parties and have gone through the record with their valuable assistance. It is obvious that the suit of the petitioner was dismissed by the learned District Judge chiefly on the point of Talbs regarding which a detailed discussion is available in paras.9, l0 and 11 thereof. The record shows that in his plaint, tiled by the petitioner in the Court of A.P.A. under PATA mention of making any Talb‑i‑Muwathibat and thereafter, while going to Civil Court Muwathibat on receiving the first information regarding disputed property. The plaintiff merely stated that on gaining the knowledge regarding the impugned transaction he sent a written notice to the respondents, stating therein that he should receive Rs.40,000 the actual price of the land and should hand over the possession of the land to the plaintiff‑petitioner, Para.3 of the plaint is relevantly reproduced:

There is also replication of 19‑7‑1993 tiled by the plaintiff‑petitioner in the trial Court wherein it was stated that since the case has not been filed under the Pre‑emption Act, 1987, therefore, he was not bound by the formalities of the notices. He, however, stated that defendant No. l was served with a notice. This replication clearly spells out that the plaintiff‑petitioner did not feel himself bound by making any Talbs. However, only notice of Talb‑i‑Ishhad and that too only to one respondent was said to have been despatched. In this context it can be safely gathered that the importance of making of Talb‑i‑Mawathibat was not realized by the plaintiff‑petitioner. Thus, the omission regarding the making of 'Talb‑i‑Mawathibat in the plaint is meaningful and significant.

6. At the trial stage the petitioner, however, turned his stance `and stated that on hearing the news of sale in favour of respondent No. l he claimed pre‑emption in his presence, meaning thereby that he made Talb‑i- Mawathibat in presence of Mir Afzal respondent. No one else was shown to be present on the spot when he received the first information regarding the disputed sale but subsequently, his brother‑in‑law namely, Sher Ali (P.W.6), stated that after getting information of the sale the petitioner made a demand of .Talb‑i‑Mawathibat. This part of the evidence of the petitioner is manifestly a subsequently devised improvement as in his pleadings throughout he has not mentioned the factum of making Talb‑i‑Mawathibat Thus, the learned Appellate Court was correct in holding that the first demand was not at all made by the petitioner which in its effect is sufficient to produce the consequences of the extinguishments of the right of pre emption. On the point of Talb‑i‑Ishhad the learned Appellate Court has made very detailed discussion in para. 1 of the judgment. The perusal of notice of Talb‑i‑Ishhad reveals that it has not been attested by tire two witnesses. It is scribed by Bashirullah Khan, Advocate and is attested only by the sole witness Samiullah, but astonishingly neither the scribe nor the attesting witness was produced in support of the contents of the notice besides the fact that this notice is addressed only to Mir Afzal one of the vendees whereas to the other four vendees no notice was sent. The learned counsel for the petitioner contended that if Bashirullah Khan, Advocate the scribe of the notice is treated as an attesting witness then the demand of law" about the two attesting witnesses would be carried out. This contention of the learned counsel is not acceptable as Bashirullah Khan, Advocate is not the attesting witness. However, even if presumably Bashirullah Khan, Advocate is taken as attesting witness then again it suffers from a serious legal infirmity as none of the two was produced by the plaintiff‑petitioner in support of his case.

7. This being the position, I am of the firm view that the requirement of Talbs both on the point of Talb‑i‑Mawathibat and Talb‑i‑Ishhad has not been complied with and thus the findings of the learned Appellate Court on these points are for open to any exception. Consequently, the judgment and decree of the learned Appellate Court is upheld and this revision petition is dismissed. H.B.T./225/P Revision dismissed,