2015 PLP 1974 (YLR)

WAQAR AHMAD SETH, J.

This revision petition has been directed against the judgment and decree dated 29-5-2014 of the learned District Judge, Kohat whereby he dismissed the appeal of Safiullah, petitioner/plaintiff against the judgment and decree dated 26-9-2012 of the learned Civil Judge-VI, Kohat and upheld the judgment and decree of the learned trial Court.

2. Brief facts of the case are that Safiullah Khan Shinwari petitioner/ plaintiff instituted a suit against Muhammad Iqbal and others respondents/defendants for possession through preemption regarding landed property measuring 9 Kanal one Marla situated in Mauza Muhammadzai Tehsil and District Kohat fully described in the heading of the plaint. It was further alleged in the plaint that respondents/ defendants 4 have purchased the suit property through suit Mutation No.10247 attested on 27-8-2007 and Mutation No.10353 attested on 23-2-2008 for a sale consideration of Rs.1, 00, 000 and in order to defeat the right of pre-emption of the petitioner/plaintiff, an exaggerated amount has been entered in the sale mutations. That the petitioner/plaintiff is a co-sharer in the suit property, his property is also situated contiguous to the suit property therefore, he has superior right of pre-emption on the basis of contiguity, participation in amenities and appendages being co-sharer while the vendees respondents/defendants have got no such rights. According to the petitioner/plaintiff, he has got the knowledge of the suit transaction on 21-7-2008 at 9.00 a.m. at his house through one Malak Azam Khan and on receipt of this information he had made Talb-e-Muwathibat there and then in presence of the aforesaid informer, followed by issuance of notice of Talb-e-Ishhad to the respondents/defendants on the same day i.e. 21-7-2008 and that they were asked time and again to admit his claim but they denied, hence the instant suit.

3. The respondents/ defendants contested the suit by filing written statement wherein they raised various factual and legal objections and grounds. Divergent pleadings of the parties gave birth to as many as ten issues including the relief.

4. In order to prove their claim, the petitioner/plaintiff besides himself produced five witnesses while on the other hand Anwar Kamal respondent/defendant No.5 for himself as well as attorney for rest of the respondents/defendants appeared as D.W.1 and also produced one Kamil Shah as D.W.2. After hearing the learned counsel for the parties, the learned trial Judge dismissed the suit of the petitioner/ plaintiff vide his judgment and decree dated 26-9-2012. Feeling himself dissatisfied from the above findings of the trial Court, the petitioner/plaintiff preferred an appeal which also met the same fate vide judgment and decree dated 29-5-2014 of the learned lower appellate Court. Hence the instant revision petition against the concurrent findings of the two Courts below.

5. I have heard the learned counsel for the petitioner/plaintiff and have gone through the available material placed on file.

6. The only question for determination in the instant case is firstly whether the petitioner/plaintiff has performed the requisite shari talbs according to the requirements of Section 13 of (N.W.F.P.) Khyber Pakhtunkhwa Pre-emption Act or not and secondly he has filed the suit within the prescribed period of limitation under section 13 of the Act ibid or not. For its determination let us go through the pleadings and evidence on file. It was averred in the plaint that the petitioner/plaintiff has got the knowledge of the impugned transaction on 21-7-2008 at 09.00 a.m. in his house through one Malak Muhammad Azam Khan and he made Talb-e-Muwathibat there and then in presence of the said informer Malak Muhammad Azam Khan followed by notice Talb-e-Ishhad. Malak Muhammad Azam Khan the alleged informer appeared as P.W.5 and stated that on 21-7-2008 at 09.00 hours he went to the house of the petitioner/plaintiff where he was sitting on the Chair and he informed him about the sale transaction and he then and there made Talb-e-Muwathibat and then on the same day he had given notice of Talb-e-Ishhad to the respondents/defendants which was signed by him as well the petitioner/plaintiff and Eissa Khan. In his cross-examination he deposed that at Kohat he is looking after the property of the petitioner/plaintiff and whenever any problem/dispute arises, he informed the petitioner/plaintiff but this stance of this P.W. i.e. informer contradicted by Eissa Khan P.W.6 who is the tenant of the petitioner/plaintiff. This P.W.6 stated that he had got the knowledge about the sale transaction and then he informed the petitioner/plaintiff in his house regarding the attestation of the mutation. Thus it is clear that the petitioner/plaintiff came to know about sale of the suit property much before the attestation of the suit mutation. It was necessary under section 13 of (N.W.F.P.) Khyber Pakhtunkhwa Pre-emption Act, 1987 that as soon as petitioner/plaintiff acquired knowledge of sale of pre-empted property, he should make immediate demand for his intention to invoke his right of pre-emption without slightest loss of time. As the petitioner/plaintiff had admittedly received information regarding the sale of the suit property much prior to the date, which the petitioner/plaintiff mentioned in his plaint in respect of Talb-e-Muwathibat, thus such omission is a clear cut violation of section 13 of (N.W.F.P.) Khyber Pakhtunkhwa Pre-emption Act, 1987. Therefore, I am of the considered view that performance of requirement of Talb-e-Muwathibat which is pre-requisite mandatory requirement of Section 13 of the (N.W.F.P.) Khyber Pakhtunkhwa Pre-emption Act, 1987 for filing of suit for pre-emption has not been proved to have been fulfilled by the pre-emptor in accordance with the requirements of Section 13 of (N.W.F.P.) Khyber Pakhtunkhwa Pre-emption Act, hence, it was rightly held by the two learned Courts below that the petitioner/plaintiff has failed to perform requisite talbs in accordance with the provisions of Section 13 of (N.W.F.P.) Khyber Pakhtunkhwa Pre-emption Act, 1987 and thus issue No.5 has been rightly decided against the petitioner/plaintiff by the two learned courts below.

7. The next question for determination is that the suit Mutation Nos.10247 and 10353 were attested on 27-8-2007 and 23-2-2008 but the petitioner/plaintiff filed suit for possession through pre-emption on 24-7-2008 which according to section 31 of Khyber Pakthunkhwa Pre-emption Act, 1987 has to be filed within a period of 120 days of the attestation of suit mutation, thus the suit filed after 120 days is hopelessly barred by time. Since the petitioner/ plaintiff has failed to prove the performance mandatory requirement of Talb-e-Muwathibat in time and his suit was also hit by limitation, thus the same was rightly dismissed by both the Courts below on these grounds, therefore, I need not want to discuss the remaining issues framed in this case because it would be a futile exercise, however, appraisal of evidence on record leads me to hold that the findings of both the learned Courts below on all remaining issues are well founded.

8. In view of what has been stated above, I find that both the Courts below have rightly non-suited the petitioner/ plaintiff and the judgments and decrees passed by the learned two Courts below being based on proper appreciating of evidence on record are well founded. The impugned judgments and decrees neither suffer from miscarriage of justice nor the result of misreading or non-reading of evidence on record. Likewise, I find no illegality or material irregularity or jurisdiction error in the impugned judgments to warrant interference by this Court in its revisional jurisdiction.

9. Resultantly, this revision petition being devoid of any merit is hereby dismissed in limine. MM/110/P Petition dismissed.