2004 PLP 1811 (CLC)

2. The suit was resisted on all grounds legal as well as factual and it was pleaded that plaintiff possesses no superior right of pre-emption; that the Talbs were not made in accordance with law and that suit was barred by time. The pleas of the parties gave rise to the framing of following issues:-- (1) Whether plaintiff has got a cause of action? (2) Whether Plaintiff is estopped to sue the defendants? (3) Whether plaintiff has fulfilled the requirements of Talbs in accordance with law of pre-emption? (4) Is the suit within time? (5) Whether the suit of plaintiff is frivolous? (6) What is actual sale consideration? (7) Has the plaintiff superior right of pre-emption? (8) Relief.

3. Upon consideration of the evidence, learned Civil Judge, Bannu proceeded to hold that plaintiff being "Shafi-e-Sharik" had superior right of pre-emption; that he made Talbs as required by section 13 of N.-W.F.-P. Pre-emption Act, 1987; that suit was filed within time and that an amount of Rs.50,000 was fixed in good faith and actually paid as sale price of suit-land. Having held so, he decreed the suit vide judgment A and decree, dated 15-5-2000. An appeal was preferred there against before learned District Judge, Bannu which was assigned to Additional District Judge, Bannu for disposal. Vide judgment dated 22-1-2001, appeal was dismissed with slight modification regarding market price of suit-land which was increased from Rs.50,000 to Rs.1,54,

000. The petitioners, feeling dissatisfied, have approached this Court by way of filing instant revision petition which is before me for consideration.

4. Khawaja Nawaz Khan, Advocate for the petitioners contended inter alia, that findings of both the Courts below on Issues Nos.1, 3 and 7 are not correct and suffer from the vice of misreading and non-reading of material on file. In fact the respondent-plaintiff was well aware about the impugned transaction but he has not complied with the mandatory provisions of section 13 of N.-W.F.P. Pre-emption Act, 1987 and all such, has failed to perform Talbs within the prescribed manner and period of limitation. The learned counsel also assailed findings recorded on Issues. Nos. 2, 4, 5 and 8 and contended that the same are the outcome of misreading and non-reading of evidence and are not sustainable in law. Concluding the arguments, the learned counsel reiterated that both the Courts below have fallen in error while relying on the photostat copy of the alleged notice (Exh. P. W 5/1) which was neither proved in accordance with law, nor it was exhibited through relevant person. To reliance was placed on PLD 1995 SC 401.

5. Mr. Gauhar Zaman Khan Kundi, Advocate for the respondent, on the contrary, defended the impugned judgments and decree of the Courts below qua decision on Issues Nos.1 to 5, 7 and 8 and stated that the impugned judgments and decrees are unexceptionable and do not suffer from any legal and factual infirmity. To supplement the pleas, he relied 1999 SCMR 717 and 2002 CLC 379 Peshawar.

6. Although this Court is not called upon to re-appraise the evidence on record in exercise of its revisional jurisdiction, yet, in the interest of justice, I have scanned through the evidence and find that the reasoning recorded by the Courts below, are in consonance with the evidence on record. Both the Courts below have rightly clinched the factual controversy, have dealt with the matter in a thread bare manner and came to the concurrent conclusions that Talbs have been made according to law within the meanings of section 13 of the N.-W.F.P. Pre-emption Act, 1987. The learned counsel has failed to point out any illegality by way of misreading and non-reading of the evidence by the Courts below warranting interference by this Court in its revisional jurisdiction. The trial Court as well as the Appellate Court have B elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration. In the instant case, sufficient material has been brought on the record to establish that: having gained knowledge about the suit transaction, the respondent, immediately declared his intention in the same sitting in the presence of witnesses to exercise his right of pre-emption in respect of the land in question and thereafter issued the Talbs in accordance with law. The witnesses produced by him have demonstrated complete unanimity on all important features of the case. The discrepancies pointed out in their statements are minor in nature and insignificant. The same cannot be considered sufficient to dislodge his claim. I may here profitably quote the observations made in Abdul Malik v. Muhammad Latif 1999 SCMR 717:-- "It may be mentioned here that in the case of Haji Rana Muhammad Shabbir Ahmad Khan (supra), various provisions including section 13(3) contained in the Act were challenged as being contrary to the Injunctions of Islam. The observation referred to above and relied upon by the learned counsel for the appellant were made by the learned Judge with reference to the contentions raised before the Court regarding the vires and validity of the legislation. No doubt this Court upheld the validity of section 13(3) of the Act on the ground that it is not opposed to the Injunctions of Islam but the observations referred to above do show that the provisions of section 13(3) of the Act relating to service of notice of Talb-e-Ishhad were held to be procedural provisions which in our view could not be considered as mandatory so as to result in non-suiting the appellant on the ground of its non-compliance. As observed by this Court in Haji Rana Shabbir Ahmad Khan's case the performance of Talb-e -Ishhad being a procedural matter to facilitate the proper process of filing a suit its non-performance in the manner stated in section 13(3) of the Act could not affect the basic right of pre emption of a party. The facts showing substantial compliance of the provision of section 13(3) would be enough to sustain the suit for pre-emption. This conclusion finds support from the second proviso to subsection (3) of section 13 of the Act which non provides that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, the Talb-e-lshhad could be made orally in presence of two truthful witnesses."

7. It is settled law that findings on question of factor law recorded by competent Court of law/jurisdiction cannot be interfered in revisional jurisdiction unless those findings. suffer from jurisdictional defect, illegality or material irregularity as held in Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610.

8. In view of the above discussion, the impugned judgments of the Courts below do not suffer from any illegality or' material irregularity and neither any case of non-reading or misreading of evidence on record is established and as such, the present revision petition is without any substance or force and is dismissed accordingly. No order as to costs. H.B.T./202/P Revision dismissed.