P L D 1992 Peshawar 33 (PLP)

Nauroz, respondent herein, had purchased different areas of land in Khasra Nos.814. 812, 813, 815 and 816 in village Turlandi, by 4 mutations No.12966 attested on 28‑1‑1987, No.12999 attested on 9‑2‑198 7, No.12967 attested on 28‑1‑1987 and No.13026 attested on 21‑9‑1987. Feroz son of Azam Khan, since dead and survived by his legal representatives Muhammad Islam etc:, filed 4 suits on 20‑12‑1987 pre‑empting the aforesaid sale transactions in the Court of Additional Civil Judge, Swabi. Suit No.320/1 is with regard to sale by Mutation No.12966. Suit No.322/1 is with regard to Mutation No.12999, Suit No.223/1 is with regard to Mutation No.12962 and Snit No.324/1 is with regard to Mutation No.13026. The vendee Nauroz, respondent No.l herein, contested all the 4 suits. In his written statements, he denied the right of pre emption of the petitioner herein and also asserted that the petitioner herein had not made different `Talabs' in accordance with law and that the suits weretime‑barred. From the pleadings of the parties, the learned trial Judge framed as many as 10 issues in each suit, wherein issues No.7 is with regard to `Talb‑i Muwathibat' and `Talb‑i‑Ishhad' having been made according to law. The parties produced evidence pro and contra the issues. The learned Additional Civil Judge, after conclusion of the trial, dismissed all the 4 suits by 4 separate. judgments dated 4‑9‑1988, holding that the petitioner herein had not made `Talb‑i‑Ishhad' within two weeks of the date of knowledge as laid down in subsection (3) of section 13 of the N.‑W.F.P. Pre‑emption Act, 1997, (hereinafter referred to as the Act). The petitioner herein challenged the aforesaid judgments in 4 separate appeals before the learned Additional District Judge, Swabi, but the learned appellate Court agreed with the finding of the trial Court on the aforesaid issues and dismissed all the 4 appeals on 30 6‑1991. Still feeling aggrieved the plaintiff of the suits has come up to this Court with 4 revision petitions No.267/91 (in hand), 268/91, 269/91 and 270/91. Since parties in all the suits are the same, the subject‑matter is also the same and all the 4 suits have been decided mainly on the point of `Talab' not having been made according to law, judgment in C.R. No.267/91 in hand shall also dispose of the other aforesaid 3 revision petitions.

2. I have heard learned counsel for the petitioner at length and have also perused record of the case.

3. According to the provisions contained in section 13 of the Act, a pre‑emptor in order to assert his right of pre‑emption has to make 3 demands cif pre‑emption; (a) Talb‑i‑Muwathibat; (b) Talb‑i‑Ishhad; and (c) Talb‑e‑Khusumat, in this very order. He has to make `Talb‑i‑muwathibat' immediately in the sitting or meeting (Majlis) in which he comes to know of the sale declaring his intention to exercise the right of pre‑emption. The other two demands have to follow `Talb‑i‑Muwathibat'. Subsection (3) of section 13 of the Act further lays down that when a pre‑emptor has made `Talb‑i‑Muwathibat', he shall as soon as possible but not later than two weeks from the date of notice under section 34, or knowledge, whichever may be earlier, make `Talb‑i‑Ishhad' by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre‑emption.

4. It shall be seen that `Talb‑i‑Ishhad' as laid down in subsection (3) of section 13 of the Act, to be valid and lawful, has to be made not later than two weeks from the date of notice under section 34, or knowledge of the transaction. Section 34 has made application of the Code of Civil Procedure and the law of evidence applicable to the proceedings under the Act. So the important criterion for determining whether .the `Talb‑i‑Ishhad' was made lawfully is to determine as within which period it was made and subsection (3) of section 13 of the Act lays down that it has to be made within two weeks of the day when the pre‑emptor comes to know of the sale.

5. Ali Akbar, attorney of the petitioner, appearing as P.W.3 has not given any statement to show as on what date the petitioner came to know of the. transactions of sale and that he had exercised the `Talb‑i‑Ishhad' within two weeks of that date. There is not an iota of evidence with regard to this aspect in his statement as P.W.3. However, in cross‑examination he admitted that he had gone to the defendant in `Jirga' 2/3 days after the attestation of the Mutations. Besides the revenue officials, there is only one other witness on behalf of the petitioner and he is a witness of the notice which was sent by the petitioner to the respondent herein. However, this witness has admitted in cross- examination that he had gone in `Jirga' to the respondent 2/4 days after the attestation of the Mutations. It shall thus be seen that the petitioner had admitted in his cross‑examination that he had gained knowledge of the sale transactions 3/4 days after the attestation of Mutations and had also made `Talb‑i‑Muwathibat' there and then, but he did not make `Talb‑i‑Ishhad' within e two weeks of gaining that knowledge. He actually made `Talb‑i‑Ishhad' many months thereafter. He sent notice of such `talab' on 19‑11‑1987. It was proved from the evidence recorded in the case that the petitioner had not made `Talb‑i‑Ishhad' in accordance with the provisions of subsection (3) of section 13 of the Act. He had, therefore, lost his right of pre‑emption as laid down in subsection (1) thereof and his right of pre‑emption was extinguished.

6. Both the learned lower Courts correctly decided issue No.7 pertaining to the demands of pre‑emption and appropriately decided that `Talb‑i‑Ishhad' was not made according to law and the petitioner herein had lost the right of pre‑emption over the suit land. I do not find any illegality or irregularity in both the impugned judgments. There is no merit in all the aforesaid 4 revision petitions, which are dismissed in limine. AA./1282/P Revisions dismissed.