P L D 1990 Peshawar 8 (PLP)

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), O.VI, R.2 & S.115‑‑‑Talb‑i Muwathibat‑‑‑Mode of proof ‑‑‑Talb‑i‑Muwathibat and Talb‑i‑Ishhad being two different phenomena and being two independent requirements of law, must be separately, individually and independently proved‑‑‑Inference of Talb‑i‑Muwathibat could not be drawn from contents of notice of Talb‑i‑Ishhad‑‑‑Such assumption would amount to bypassing practical proof of Talb‑i‑Muwathibat which was rather more important being foremost in the series‑‑‑Talb‑i Muwathibat being pure question of fact, would entail legal consequences, therefore, same must be proved like any other material fact‑‑‑Statement in concise form of material facts must be given in terms of O.VI, R.2, C.P.C., in pleadings and evidence to be brought in accordance therewith and never beyond thereof ‑‑‑Talb‑i‑Ishhad was not confirmation of Talb‑i‑Muwathibat‑‑‑Plaintiff, thus failed to prove Talib‑i‑Muwathihat independently and directly‑‑‑Plaintiff was, thus, not entitled to relief of pre‑emption. Akbar Nawaz Khan v. Sher Dil Khan 1995 MLD 1061 rel. Gul Hussain Shah v. Mulazam Hussain Shah 1995 SCMR 973 ref. JUDGMENT A purchase of 25 Kanals 17 Marlas of land in Village Seeri Khairabad, Tehsil Balakot through Mutation No.3185 attested on 17‑1‑1993 by Maroof Shah son of Pir Badshah was pre‑empted by Ali Khan son of Saddar Ali who was non‑suited by the learned Civil Judge, Balakot through his judgment and decree dated 6‑11‑1994.

2. The pre‑emptor went in appeal which was heard by the learned Additional District Judge, Mansehra who reversed the findings of the trial Court and granted a decree for possession through pre‑emption on payment of Rs.50,000'as sale consideration. This judgment dated 21‑5‑1995 is challenged by the vendee Maroof Shah through the instant civil revision.

3. So far as the right of pre‑emption, as such, and the amount of consideration involved is concerned, it is conceded at the bar and the matter was contested before this Court‑only and only on the ground of non‑fulfilment of Talb‑i‑Muwathibat.

4. Mr. Ejaz Afzal Khan learned counsel for the petitioner alleged, seeking re‑inforcement from "Akbar Nawaz Khan v. Sher Dil Khan" (1995 MLD 1061), a judgment of this Court in support of the argument that the question of Talb‑i- Muwathibat being a question of fact, was not proved in a manner so as to bring an accord between the evidence and the pleadings. Mr. Muhammad Hussain Lughmani learned counsel for the respondent stated that anything alleged in the plaint has satisfactorily been proved by the pre‑emptor and moreover the factum of Talb‑i‑Muwathibat stands already mentioned in notice of Talb‑i‑Ishhad and as the latter was a document in writing, no evidence could be produced (oral) beyond the contents of notice of Talb‑i‑Ishhad.

5. The stance taken by the learned counsel for the respondent seems not to be a correct principle of law. In the N.‑W.F.P. Pre‑emption Act, 1987 the three stages of Talb are provided in the shape of Talb‑i‑Muwathibat, Talb‑i‑Ishhad and Talb‑i‑Khusumat. Each and every stage is an independent requirement of Islamic Law of Pre‑emption and hence has to be independently and individually complied with. If one takes for granted the contents of notice of Talb‑i‑Ishhad and if one takes the inference of Talb‑i‑Muwathibat therefrom, it would certainly amount to bypassing the practical proof of Talb‑i‑Muwathibat which is rather more important being foremost in the series. It is therefore, held that Talb‑i‑ Muwathibat and Talb‑i‑Ishhad being two different phenomena and being two independent requirements of law, are to be separately, individually and independently proved. Let us see as to how the requirement was fulfilled in the instant case.

6. The law on the subject is so obvious and the case‑law is so clear to the effect that the factum of Talb‑i‑Muwathibat is sine qua non for the exercise of right of pre‑emption. Without the fulfilment of the former, the latter is not activated. The second aspect of Talb‑i‑Muwathibat is that it is a pure question of fact that entails upon legal consequence and hence has to be proved like any other material fact. Under Order 6, Rule 2 of the C.P.C. a statement in a concise form of the material facts is bound to be given in the pleadings and the evidence is to be brought in accordance therewith and never beyond thereof.

7. A perusal of para. No.2 of the plaint indicates that Talb‑i‑Muwathibat was made by the pre‑emptor the moment he got the knowledge of attestation of mutation in that very meeting where he received information and before the witnesses. Although he failed to give the description of the occasion and the persons present around yet in para. No.6 he specified that the mutation was attested on 17‑1‑1993 whereas he had obtained knowledge thereof on 24‑1‑1993. Ali Khan plaintiff while appearing in the witness box stated that he alongwith Siddique and Jamal Din was sitting when Daud came there and informed that a day earlier, the mutation had stood attested. This means that they 'had all gathered on 18‑1‑1993 and the plaintiff had received information on 18‑1‑1993. Obviously, he was supposed to have made Talb‑i‑Muwathibat on 18‑1‑1993 in the aforesaid meeting but he admittedly had made Talb‑i‑Muwathibat on 24‑1‑1993 as per para 6 of the plaint. The categorical discrepancy between the evidence and the pleadings would indicate that the performance of Talb‑i‑Muwathibit was delayed by six days.

8. The pre‑emptor further went on to say that 5/6 days after receiving information he issued notice of Talb‑i‑Ishhad. This comes to 23rd and 24th of the month whereas the notice was given on 27‑1‑1993. If the knowledge is stretched back to 5/6 days from 27‑1‑1993 then the date of knowledge falls on 21/22‑1‑1993. This again negates the date given in the pleadings as 24‑1‑1993. In the cross‑examination he straightaway denied having made Talb‑i‑Muwathibat on 24‑1‑1993.

9. His witness jamal Din (P.W.5) contradicted Ali Khan pre-emptor by saying that the informer Daud had never disclosed the day and date of the attestation of mutation while Muhammad Siddique Khan (p‑W.6), absolutely negated the very happening, as such. He stated that in his presence nothing was ever informed by any one to the pre‑emptor. He was totally ignorant of any thing but the notice of Talb‑i‑Ishhad.

10. In these circumstances one cannot have two opinions about the utter failure of the, plaintiff to prove Talb‑i‑Muwathibat. To say that Talb‑i‑Ishhad is the confirmation of Talb‑i‑Muwathibat would tantamount to intermingling both the independent requirements of law and would also tantamount to putting the cart before the horse. Gul Hussain Shah v. Mulazam Hussain Shah (1995 SCMR' 973) relied upon by the learned counsel for the respondent is not relevant to the circumstances of the present case because in the above ruling only leave to appeal was granted to consider as to whether the specific deposition (manner of making talb) made by the pre‑emptor was sufficient to prove Talb‑i‑Muwathibat. In the instant case the manner of making Talb‑i‑Muwathibat is not at all disputed but the very incident thereof is challenged.

11. Consequently, the revision petition is accepted, the impugned judgment and decree dated 21‑5‑1995 passed by the learned Additional District Judge, Mansehra is set aside and that dated 6‑11‑1994 passed by the learned Civil Judge, Balakot is restored with no order as to costs. A.A./2028/P. Revision accepted.