2017 PLP 183 (YLRN)

MUHAMMAD YOUNIS THAHEEM, J.

Through this single judgment, this Court shall dispose of two revision petitions as common question of law and facts are involved therein, parties are same and both the petitions have arisen out of a single judgment and decree passed in Civil Appeal No.56/13 dated 19.05.2014 by Additional District Judge-II, Takht Bhai, particulars of both petitions are as under: "i) C.R. No.537-P/2014 titled Sher Afzal and others v. Sher Bahadar ii) C.R. No. 730-P/2014 titled Sher Bahadar v. Wazir Shah and others

2. Brief facts of the case are that respondent Sher Bahadar instituted a suit for possession through pre-emption by way of decree upon sale mutation No. 978 attested on 31.03.2011 about landed property described in the plaint on the basis of having superior rights of pre-emption than vendee/defendant (the present petitioner) being co-sharer and other superior rights by alleging that he had fulfilled all the requisite 'Talbs' i.e. 'Mawathebat' and 'Telb-e-Ishhad fully detailed in the plaint.

3. Defendant/vendee was summoned, who contested the suit by filing his written statement raising various pleas particularly non-fulfillment of requisite demands according to Section 13 of KPK Pre-emption Act on the part of pre-emptor. Upon the divergent pleadings of the parties, the learned trial Court framed the following issues:- l. Whether the plaintiff, has got a cause of action?

2. Whether suit of the plaintiff is competent in its present form?

3. Whether suit of the plaintiff is within time?

4. Whether the plaintiff is estopped to sue due to his own conduct?

5. Whether suit of the plaintiff is liable to be dismissed due to partiality?

6. Whether the plaintiff has waived his right of pre-emption?

7. Whether the plaintiff has superior right of pre-emption over suit property?

8. Whether the plaintiff has made talbs according to law?

9. What is the market value of the suit property?

10. Whether the defendant has made improvements on the suit property, if so, to what extent and effect?

11. Whether the plaintiff is entitled for the decree as prayed for?

12. Relief.

4. Both parties led their respective evidence to prove their respective pleas by producing pro and contra evidence and after conclusion of trial after hearing arguments the learned trial Court dismissed the pre-emption suit vide judgment and decree dated 06.07.2013. Remaining dissatisfied from the judgment and decree of the learned trial Court the present respondent in the instant petition and petitioner in the connected C.R. No.730-P/2014 Sher Bahadar filed regular civil appeals, before the Court of learned Additional District Judge, Takht Bhai which after hearing was partially allowed vide judgment and decree dated 19.05.2014 impugned herein vide which learned appellate Court decreed half share of the suit land in favour of Sher Bahadar pre-emptor. Feeling aggrieved from the judgment and decree of the learned appellate Court below both parties assailed the same judgment and decree of the learned appellate Court below by filing their respective civil revision petitions inter alia on their respective grounds.

5. The learned counsel for petitioner/ vendee advanced his arguments as below:- (i) the judgment and decree of learned appellate Court below by decreeing half of suit land to pre-emptor is against law, evidence on record and with disregard to law laid down by this august Court and Honourable Supreme Court of Pakistan with regard to 'Talbs'. (ii) the judgment and decree of the learned trial Court is well reasoned, based on proper appreciation of evidence and law; learned appellate Court was having no justification to set aside the judgment and decree of the learned trial Court by decreeing half of suit land in favour of respondent and by doing so has travelled beyond its jurisdiction. (iii) and lastly submitted that the pre-emptor has failed to prove through cogent, believable evidence both the factum of 'Talb-e-Mawathebat' and 'Ishhad' as has remained failed to prove 'Talb-e-Ishhad' by producing the postman. (iv) pre-emptor and his witness as are not truthful one.

6. Conversely the learned counsel for respondent in the instant petition and petitioner in connected C.R. No. 730-P/ 2014 argued in the following way: (i) that the judgment and decree passed by the learned trial Court is against law and evidence to the extent of not decreeing other half of the suit land as the pre-emptor had proved all the requisite 'Talbs'. (iii) the learned appellate Court below after reappraisal of evidence and appreciation of law on the subject though had allowed the appeal of pre-emptor but it has been partially allowed, so had challenged it as on the same evidence the half suit land was decreed and the other half part was not decreed by declaring vendee as co-sharer which is against record. (iii) as pre-emptor has superior rights than vendees, therefore, is entitled for decree of other remaining half as well. (iv) lastly responding to the arguments advanced by learned counsel for vendee/petitioner that when the postal envelopes containing notices of 'Talb-e-Ishhad' were returned unserved bearing postman's note then it is deemed that those were delivered as proved through documentary evidence. So it is not fatal for pre-emptor that Ali Rehman who delivered it had not been produced. In this respect plausible explanation has been forwarded that he was not available and has gone to Karachi, therefore, his brother Wajid Ali was produced as witness who testified the entries and signatures of his brother on each original postal envelopes and AD Cards marked as Ex.PW4/1 to Ex.PW4/4, therefore, legally the postal envelopes containing original notices of 'Talb-e-Ishhad' had been validly delivered on addressees/vendees.

7. Valuable arguments of both the learned counsel heard, considered and record perused.

8. First question for determination before this Court is whether the respondent Sher Bahadar is co-sharer in the Khata and vendees are strangers. Patwari Halqa appeared as PW2 who produced registered Haqdaran-e-Zameen Mouza Ahmad Abad pertaining to Khata No.236 placed on record as Ex.PW2/1. According to Ex.PW2/1 both vendees and pre-emptor are entered as owners in the column of owners. This fact of co-sharership of vendees has been admitted by the Patwari during cross-examination as below:-- "It is correct that defendants are co-sharers in the suit Khata/suit land." So according to the evidence on record it is proved that vendees are also co-sharers in the suit Khata prior to purchase of suit land. So the argument advanced by the learned counsel for pre-emptor in this respect has no force.

9. The other question for determination before this Court is as to whether the pre-emptor has fulfilled all requisite demands and had successfully proved it. Relevant provisions about demands as envisaged under section 11 of KPK Pre-emption Act, 1987 are as under: DEMAND OF PRE-EMPTION: 13. (1) The right of pre-emption of person shall be extinguished unless such person makes demand of pre-emption of the following orders, namely:- (a) talb-i-muwathibat; (b) talb-i-ishad: and (c) talb-e-khusumat. (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make talb-i-muwathibat. (3) Where a pre-emptor has made talb-e-muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption."

10. It has been now settled law that for a successful pre-emptor it is mandatory not only to first make all requisite demands but shall be proved meticulously by the pre-emptor through producing truthful witnesses.

11. From the perusal of plaint it reveals that plaintiff/pre-emptor has averred in Para No.3 of his plaint that he was informed through his son Muhammad Imran Khan (PW8) at 6:30 PM on 14.07.2011 at his Hujra in presence of Muhammad Faheem (PW7) and Muhammad Shafi (PW6) and on this information he in the same meeting made elan Shuffa on sale mutation No.978 attested on 15.07.2011 (Ex.PW1/1) and sent notices 'Talb-e-Ishhad' through registered post along with AD Cards.

12. It is further perused that defendants in their written statement had negated all allegations made in the plaint particularly had raised plea that alleged 'Talbs' are fake and pre-emptor had not sent notices of 'Talb-e-Ishhad' to them.

13. The pre-emptor in Para No.1 of his plaint taken a specific plea with regard to the price as Rs. 3,00,000/- (three lacs) but not more than it so he was under legal obligation to prove this alleged fact about price by producing evidence. The perusal of his statement reveals that he has reiterated his stance about price but had not disclosed any source from where he got information about price but during cross-examination he deposed that his son Imran Khan has not informed him about the sale price. He has not produced any evidence to prove the alleged sale price. In this respect deep analysis had been laid down by the Honourable Apex Court about truthfulness of a witness in case titled as "Subhan-ud-Din v. Pir Ghulam" cited as (PLD 2015 SC 69). The relevant part is below for reference: The respondent had specially contended (in his examination in chief) that the said land had been purchased for only twenty thousand rupees, but without disclosing the source of such information. It if the reason for mentioning a lower price was to obtained or advantage the same was not permissible as it would contravene the provisions of Shari' ah which have been made specially applicable to pre-emption cases. Section 33 of the Act stipulates as under:-- "

33. Matter ancillary or akin to the provisions of this Act:- Matter ancillary or akin to the provisions of this Act which have not been specially covered under any provisions thereof shall be decided according to Shari'ah.

11. Shari'ah requires honesty and truthfulness in once dealing and falls statement made to obtain and advantage is an anathema to Almighty Allah. Similar circumstances are in the instant case though pre-emptor has alleged Rs.3,00,000/- (three lacs) as sale price in the plaint but to prove this fact he has not disclosed any source and had not produced any evidence. So when pre-emptor wanted to have the suit land on less price than he was under an obligation to have it proved according to the alleged price which proof is missing so the pre-emptor is not a truthful witness.

14. There is another aspect in the instant case that pre-emptor neither in his statement nor in plaint, nor in his alleged notices of 'Talb-e-Ishhad' stated about confirming of his intention to pre-empt the sale. Failure of affirmation of intention to pre-empt the sale. Failure of affirmation of intention in notice 'Talb-e-Ishhad' is also fatal to the case of pre-emptor. In this respect wisdom is derived from the judgment of Honourable Supreme Court in case titled "Muhammad Zahid v. Muhammad Ali" reported as PLD 2014 SC 488). The relevant portion of the cited judgment is reproduced for guidance: "The respondent stated in his evidence recorded in the Court that he signed and sent notice to the vendee but he did not state anywhere that he confirmed his intention to exercise his right of pre-emption. Talb-e- Ishhad which, in fact, is confirmation of intention to exercise a right of pre-emption cannot be held to have been established by mere sighing and sending of notice" (underline is mine to emphasize)

15. As earlier discussed it was mandatory for the pre-emptor to allege and prove all the requisite 'Talbs' according to law but from the statement of PW3 Nasir Khan Postman who brought register hooking general to tally postal receipts Nos.1431 to 1434 on judicial file with his record which were issued from his post office are Ex.PW3/1 mid Ex.PW3/2 but same witness during cross-examination had admitted that he is neither postman, nor he registered the said registered post envelopes nor issued the said receipts. So same is not the postman who delivered above discussed registered post envelopes.

16. Another witness Gul Muhammad postman of Hadi Kalay post office Branch appeared as PW-3A who deposed that four registered posts vide receipts Nos, 1431 to 1434 were delivered through Ali Rehman BPM Hadi Kalay and were returned unserved due to refusal of addressees. During cross-examination he admitted that he has not made any entry himself on Ex.PW3/1 to Ex.PW3/4. He volunteered that he was not working as a postman at that relevant time at branch post office Hadi Khalay.

17. Plaintiff produced the brother of postman Wajid Ali who appeared as PW4 who during examination in chief stated that Ali Rehman is his brother who worked as postman for Hadi Kalay and he is well conversant with his signatures. He further deposed that for delivery of said registered post envelopes upon addresses/vendees we duly informed addressees on 18.07.2011 for delivery and kept said envelopes in our custody as 'Amanat' but they did not come to receive it from 18.07.2011 to 22.07.2011. Ali Rehman sent back these unserved registered post envelopes on 23.07.2011. During cross-examination this witness deposed that his brother went to Karachi for job two years ago and he has no contact with him. This witness during cross-examination further deposed that at the time of delivery of said registered post envelopes he was accompanying his brother Ali Rehman. He admitted it correct that all envelopes or AD Cards do not bear his signature. He further admitted that no signature or verification from the Lambardar etc. of area was obtained on envelopes or on AD Cards. So from the perusal of his statement it transpires that envelopes were kept at the branch post office or with Ali Rehman w.e.f. 18.07.2011 to 22.07.2011 and no effort for service in person upon the addressees/ vendees was made and the said witness had introduced a different story that he was accompanying his brother at the time of delivery. It does not appeal to the prudent mind that at the relevant time this witness was accompanying Ali Rehman and if it was so then the plaintiff was required to allege this fact in his plaint and afterward had proved this fact of accompanying his brother by some corroborating evidence so it gives an irresistible view of the fact that this witness (Wajid Ali) was later on introduced by plaintiff to fill the lacuna about producing of postman Ali Rehman.

18. So from the evidence of plaintiff delivery of notices of 'Talb-e-Ishhad' has not been proved and this important legal aspect was overlooked by the learned appellate Court below, so in exercise of powers vested under section 115 of C.P.C. findings of appellate Court regarding impugned order, judgment and decree are result of mis-reading, non-reading of evidence and are perverse, hence, are hereby set aside. Petition No.537-P/2014 of Sher Afzal etc. is accepted in the light of above discussion and observations. So the Revision Petition No.730-P/2014 filed by pre-emptor Sher Bahadar is dismissed accordingly. ZC/62/P Revision allowed.