2014 PLP 1740 (CLC)

MUHAMMAD DAUD KHAN, J.

This civil revision is directed against the judgment dated 31-8-2010, passed by learned Additional District Judge-II, Lakki Marwat, whereby the appeal filed by the petitioner/plaintiff against the judgment/decree dated 29-7-2004 recorded by learned Civil Judge-VI, Lakki Marwat was dismissed.

2. Succinct but necessary facts of the instant revision petition are that on the basis of sale Mutation No.221 attested on 14-10-1998 land measuring 27 kanals, 7 Marlas situated in the local limits of Moza Abdul Khel was purchased by respondents/defendants Gul Nawaz, Muhammad Ayub Khan and Mir Abbas vendees/defendants. The sale was pre-empted by Qasim Khan, the petitioner/pre-emptor claiming his superior right of pre-emption on the basis of co-owner, participator of right attached and adjacent to sold property in consideration as sum of Rs.3470 or whatever is fixed by the Court.

3. The plaintiff averred in the plaint that he got knowledge of the alleged sale transaction on 19-10-1998 at 0400 PM in his Baithak situated at Abdul Khel through Hazrat Ali son of Ghazni in presence of Mir Alam son of Qasim Khan. He then and there in presence of said persons made Talb-e-Muwathibat. Later on he sent notice Talb-e-Ishhad to the defendants/vendees through registered post along with AD.

4. When put on notice by the learned trial court, respondents/ defendants contested the suit, by filing written statement, wherein they controverted the averments of the plaint, specifically denied sending of notice Talb-e-Ishhad and delivery of registered Post AD in compliance with the mandatory provisions of section 13 of the Khyber Pakhtunkhwa Pre-emption Act 1987. On divergent pleadings of the parties issues were framed. Parties adduced pro and contra evidence in support of their respective stance. The learned trial court after hearing arguments of learned counsel for the parties dismissed the suit of petitioner/ plaintiff vide judgment and decree dated 29-7-2004 mainly on the ground of nonperformance of Talbs in accordance with law. Aggrieved from the same the petitioner/ plaintiff filed appeal in the court of learned District Judge Lakki Marwat, which was entrusted to the learned Additional District Judge-II, Lakki Marwat, who vide judgment and decree dated 1-2-2005 allowed the appeal in favour of petitioner/plaintiff to the extent of one fourth share of the suit property. Dissatisfied the judgment and decree of learned appellate Court the petitioner/plaintiff filed the revision petition bearing C.R. No.138 of 2005 before this Court, which was accepted vide judgment dated 30-6-2010, resultantly, the judgment and decree of learned appellate court was set-aside and the case was remanded back to the learned appellate Court with the direction to rehear learned counsel for the parties and rewrite judgment in each appeal separately. Learned Additional District Judge-II, Lakki Marwat, in compliance of the observations of this Court, reheard learned counsel for the parties and upheld the judgment and decree of learned trial court, vide impugned judgment and decree dated 31-8-2010, meaning thereby that both the subordinate courts concurred on dismissal of the suit of the petitioner/ plaintiff. Hence, the instant revision petition.

5. I have considered submissions of learned counsel for the parties, gone through the record appended with the petition.

6. Perusal of the plaint divulges that, the petitioner/pre-emptor alleged in the plaint that on 19-10-1998 at 04.00 PM, he along with Mir Alam were present in his Baithak, when in the meanwhile, Hazrat Ali, their co-villager came to there and informed him about the attestation of the impugned mutation and hence he (plaintiff/pre-emptor) there and then declared his intention to pre-empt the suit land. Later on, he sent notice Talb-e-Ishhad to the respondents/defendants through registered Post along with AD. But the petitioner did not mention the date of demand through notice Talb-e-Ishhad in the plaint. By now it is settled law that the date, time and place of making immediate demand as well as the date of demand through notice of Talb-e-Ishhad are mandatory requirements to be mentioned in the plaint and omission of these particulars would be fatal for the suit of pre-emption. In view of judgment of larger bench, titled "Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs." (PLD 2007 SC 302) and "Mst. Bashiran Begum v. Nazar Hussain and another" (PLD 2008 Supreme Court 559) it is held that:

"This Court has approved the view that a plaint wherein date, place and time of making of Talb-e-Muwathibat and date of issuing notice of Talb-e-Ishhad in terms of section 13 of the Act, is not provided, it would be fatal for the pre-emption suit. The Hon'ble Bench of five judges has dissented from the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal heirs and another (2000 SCMR 314) and has approved the view expressed in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977). According to the dictum laid down by the larger bench of this Court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending cases." Ratio of the above dictum also followed in the recent judgment by the Hon'ble Supreme Court in case titled "Fazal-ur-Rehman v. Khurshid Ali and another" (2012 SCMR 635) and "Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911) in the latter case, it is held that:

"Performance of both these Talbs is a sine qua non for getting a decree in a pre-emption suit. This Court has approved the view that a plaint wherein date place and time of making of Talb-e-Muwathibat and date of issuing notice of Talb-e-Ishhad in terms of section 13 of the Act, is not provided, it would be fatal for the pre-emption suit."

7. The averment of sending notice Talb-e-Ishhad was categorically denied by the respondents/defendants in their written statement as well as statement on oath. In such a situation, it was incumbent upon the plaintiff to produce postman to prove service/delivery of notice Talb-e-Ishhad in compliance with the principle set by the Hon'ble Supreme Court in cases titled "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105), "Basheer Ahmed v. Ghulam Rasool" (2011 SCMR 762) and "Allah Ditta through L.Rs and others v. Muhammad Anar" (2013 SCMR 866). But he neither produced the scribe of notice nor post man of the area to prove delivery of notice Talb-e-Ishhad. Consequently, performance of Talb-e-Ishhad is not proved.

8. Perusal of the evidence divulges that plaintiff was examined as P.W.3, he in his statement stated that on the third day he sent notice Talb-e-Ishhad, meaning thereby that according to the statement of plaintiff notice Talb-e-Ishhad was sent on 21-10-1998, whereas in contrary to that P.W.4 Mir Alam stated that notice was posted on 24-10-1998. While Hazrat Ali recorded his statement as P.W.5, he did not mention the date of sending notice Talb-e-Ishhad. Hence, on the point of sending notice Talb-e-Ishhad all the P.Ws. are contradictory to each other and seems not to be truthful and trustworthy witnesses.

9. From the above discussed evidence one could reach to an irresistible conclusion that on one hand the pre-emptor has failed to comply with the mandatory provisions of talbs and on the other hand truthfulness of P.Ws. is also becomes doubtful. Wisdom is derived from a case-law "Muhammad Nazeef Khan v. Gulabat Khan and others" (2012 SCMR 235).

10. It needs no emphasis that for successful exercise of right of pre-emption, the proof of superior right of pre-emption, performance of Talb-e-Muwathibat and then Talb-e-Ishhad, in their respective chronological order, is essential. Any deficiency in these legal requirements will render a pre-emption suit liable to an outright dismissal.

11. Both the Courts below have rightly dismissed the suit of the petitioner by properly appreciating the evidence available on record and applying the law on the subject correctly. The scope of revisional jurisdiction is very limited in which the Court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor can it upset the same, even if, on appreciation of evidence, a different view can be formed, unless these findings are shown to have been the outcome of a jurisdiction vested but not exercised or jurisdiction not vested, but exercised or one of material irregularity. I did not find any infirmity or misreading and non-reading of evidence in the impugned judgments which may warrant interference of this Court in the concurrent finding of facts recorded by two Courts below. In this respect reliance is placed on, "Muhammad Rashid Ahmed v. Muhammad Siddique" (PLD 2002 SC 293) and "Muhammad Idrees and others v. Muhammad Pervaiz and others" (2010 SCMR 5).

12. This revision petition being without any substance, stands dismissed with no order as to costs. AG/383/P Revision dismissed.