2016 PLP 1546 (MLD)

MUHAMMAD YOUNIS THAHEEM, J.

Through the instant revision petition, the petitioner has assailed the judgment and decree dated 23.11.2011 of learned District Judge, Bannu, whereby accepting the appeal the judgment and decree dated 20.04.2011 of learned Civil Judge-X, Bannu was set aside and decreed the suit of plaintiff/ respondent.

2. Succinct facts giving rise to the instant petition are that Mst. Malik Zaro, the plaintiff instituted a suit for possession through exercise of right of pre-emption under the Khyber Pakhtunkhwa Pre-emption Act, 1987 (hereinafter called as the Act) against the petitioner / defendant, who is vendee of the suit land under Mutation No.303 attested on 28.06.2008.

3. As per averments in the plaint, the petitioners/plaintiff came to know about the suit sale on 03.10.2008 (Friday) at 08.00 hours in her house, through Khushdil, in presence of Tariq Iqbal (her son). She allegedly immediately performed Talb-e-Muwathibat, there and then, in presence of the above named witnesses. Later on, in confirmation of the first Talb, through registered AD the petitioner/plaintiff sent to the vendees/ defendants notice Talb-e-Ish'had, which was duly attested by the two marginal witnesses, namely, Khushdil Khan and Tariq Iqbal.

4. The averments of the plaint were controverted by vendee-defendant in his written statement, raising therein variety of objections legal as well as factual. The controversial pleadings of the parties resulted into framing of issues. Pro and contra evidence was recorded. On conclusion of trial, the learned Trial Court/Civil Judge-X, Bannu dismissed the suit of the respondent/ plaintiff vide judgment and decree dated 20.04.2011. The respondent/ plaintiff being feeling aggrieved from the said judgment, assailed the same in appeal before the learned District Judge, Bannu, which was allowed and suit of respondent/ plaintiff was decreed, vide impugned judgment and decree dated 23.11.2011. Hence, the instant revision petition.

5. Haji Riaz Muhammad Khan and basher-ur-Rehman Burki learned counsel for petitioner argued that non-mentioning the date of sending notice Talb-e-Ish'had in the plaint is fatal to case of preemptor; that the respondent/ plaintiff was duty bound to prove her averments by producing cogent evidence, but she failed to prove the same as non of her witnesses have mentioned date year and place of performing Talb-e-Muwathibat and date of sending notice Talb-e-Ish'had due to which the learned trial court has rightly dismissed the suit of respondent/ plaintiff, while learned appellate court has erred in law by accepting the appeal, which is liable to be reversed.

6. Conversely, Hafiz Muhammad Hanif, learned counsel for the respondent/ plaintiff opposed the arguments advanced by learned counsel for petitioner and supported the judgment and decrees of learned appellate court below by arguing that the respondent/ plaintiff has proved all the Talbs by producing cogent and coherent evidence and the fact of non-mentioning of date of performance of Talb-e-Ish'had in the plaint is not fatal to the case of pre-Ish'had, which was proved by producing its scribe, delivery clerk, post man, hence, instant appeal merits outright dismissal.

7. I have given my consideration to the respective arguments of learned counsel for the parties and have gone through the record with their valuable assistance.

8. Perusal of the plaint reveals that plaintiff has mentioned the details of date, time and place of performance of Talb-e-Muwathibat in her plaint, however, the date of notice Talb-e-Ish'had is not disclosed therein. By now, it is settled law that all the details, with full particulars i.e. name of informer, date, time and place of performance of Talb-e-Muwathibat as well as date of Talb-e-Ish'had, are mandatory requirements to be mentioned in the plaint, so that plaintiff may prove the same during the trial. The philosophy behind this rule is that a plaintiff may not improve his/her case during the trial, nor he/she may make any departure from his/her pleadings. The law requires that a plaintiff pre-emptor should come forward with all the details about Talbs in the plaint, which if missing would be fatal to the very foundation of the case. On in depth study of the case law would show that the august Supreme Court of Pakistan has held this view in a number of cases. In case titled "Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs." (PLD 2007 SC-302), a larger bench of august Supreme Court has held:-- "Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-e-Muwathibat and date of issuing the notice of performance of Talb-e-Ish'had in terms of section 13 of the Act is not provided it would be fatal for the preemption suit." The above dictum has further been supplemented in a directive judgment of the apex Court, in "Dilbar Khan v. Muhammad Ashraf" (PLD 2013 Supreme Curt 171), given the directive nature of the judgment, its relevant part is reproduced below for a ready reference. "Being conscious of the dicta of this Court whereby while declaring a particular law as ultra vires of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) and a specific cut off date as to when the judgment would take effect and further providing for saving the decision/decree passed prior thereto, we are of the view that latest judgment/verdict of this Court not falling within the above category, which enunciates the principle of law, in respect of a specific/particular law by interpreting the same e.g. (preemption/rent/family) that such judgment shall be given fullest effect and should be strictly followed till the time the lis stands finally terminated/determined. Meaning thereby that it (lis) is not pending before any forum (not the apex Court); this should be irrespective when the case was instituted or the decision was passed by the first Court or subsequent courts. It is the final and conclusive judgment/opinion of the apex Court deciding a question of law, or based upon or enunciates a principle of law which shall have the binding effect and should be adhered to in letter and spirit, obviously if it otherwise qualify the test of precedence over the earlier view, under the known principles of interpretation and application of the "precedent case law". In our opinion, the instant case was/is squarely covered by Pir Muhammad case at the revisional stage and the revisional Court was duty bound to decide the matter as per thereto in terms of Article 189 of the Constitution. Besides, it has not been candidly controverted by the learned counsel when confronted by the Court during the course of hearing, that in the evidence the appellant was required to testify/establish/prove the said particulars, but on examination of the evidence, it reveals that those (particulars) are conspicuously missing. None of the witnesses produced by the appellant with regard to Talb-e -Muwathibat has deposed about the date, time and venue of making the Talb-e -Muwathibat. Therefore, on this ground alone, we are not persuaded to interfere in the impugned judgment. This appeal accordingly has no merit and is dismissed."

9. In order to prove the factum of Talb-e-Muwathibat as well as Talb-e-Ish'had, the plaintiff herself appeared as PW-6 before the court, wherein she did not disclose the date, year and place of performance of Talb-e-Muwathibat and date of sending notice Talb-e-Ish'had. Tariq Iqbal alleged witness of Talb-e-Muwathibat as well as Talb-e-Ish'had appeared as PW-7, also omitted to mention date of performance of Talb-e-Muwathibat as well as Talb-e-Ish'had in his statement recorded before the Court. So much so the alleged informer Muhammad Khushdil Khan appeared as PW-8, also failed to mention date, time and place of performance of Talb-e-Muwathibat as well as date of sending notice Talb-e-Ish'had. In view of the statements of respondent/ plaintiff as well as her witnesses Tariq Iqbal and Muhammad Khushdil Khan, one could reach to an irresistible conclusion that plaintiff has failed to prove performance of Talb-e-Muwathibat as well as Talb-e-Ish'had in accordance with section 13 of the K.P.K Pre-emption Act, 1987. By now it is settled law that not only mentioning of date, time and place of performance of Talb-e-Muwathibat as well as date of sending notice Talb-e-Ish'had in the plaint is legal requirement, but also the plaintiff is legally bound to prove the same through cogent and trustworthy evidence before the court, because the contents of plaint can never be considered as evidence and by mentioning these details in the plaint the plaintiff cannot be absolved from the duty to prove the same through reliable and truthful evidence, but it is not the case of plaintiff. In similar situation the Hon'ble Supreme Court, in case "Ahmad Hassan v. Muhammad Aslam" (2007 SCMR 962) has held as:--

4. In para.2 of the plaint, the plaintiff did mention the exact date of 19-10-1991 on which he had received information about the sale of the suit-land in the presence of Muhammad Akram, Fazal Hussain and Muhammad Akbar, he immediately declared his intention to pre-empt the sale. When appearing in the witness-box neither the respondent/plaintiff nor the two witnesses to Talb-i -Muwathibat, Fazal Hussain and Muhammad Akram, mentioned the date of making of Talb in the examination-in-chief. When questioned in cross-examination, none of them was able to give the date and the respondent was only able to say that it was in the month of October or November. In the case of Atiq-ur-Rehman v. Muhammad Amin (supra) a similar situation came up before this Court when the plaintiff was unable to give the exact date of the Talb in his testimony. In para.8 of the judgment, it was held: "(8) The pre-emptor in the present case pleaded the knowledge of sale on 14-4-1999 in the plaint but in his statement in the Court he stated in general terms that he having acquired the knowledge of sale about eight months prior to the date, of making the statement, fulfilled the requirement of Talb-i-Muwasibat and also sent notice of Talb-i-Ishhad on the next day of making Talb-i-Muwasibat. The pre-emptor thus, without proving the specific date of making Talb-i-Muwasibat claimed performance of both the Talbs on the basis of the notice of Talb-i-Ishhad. " Like the present case, the two witnesses produced in support of Talb-i -Muwasibat were also unable to give the exact date of the Talb. The Court reversed the judgment of the Lahore High Court in Muhammad Amin v. Atiq-ur-Rehman 9005 CLC 1772, holding that since the date of Talb-i -Muwasibat was not established in evidence, the Talb was not proved. In view of ratio of above judgment of Hon'ble Supreme Court, it is held that the plaintiff has failed to prove the factum of Talb-e-Muwathibat as well as Talb-e-Ish'had in accordance with law.

10. It is further borne out from the record that plaintiff in order to prove delivery of notice Talb-e-Ish'had has produced delivery clerk, who deposed that he visited the spot for delivery of envelop, but he was told that petitioner/defendant Feroz Khan has left for Japan and original envelop along with AD card was returned to the plaintiff Mst. Malik Zaro. The perusal of record also proves this fact that Feroz Khan vendee/ defendant at the relevant date and time was out of country, as copy of passport and boarding pass Exh:DW 2/2 and Ex:DW2/3 annexed with record showing departure date to Tokyo Japan as 26.06.2008 and return to Pakistan on 21.11.2008. The said record was produced during deposition without raising any objection on its admissibility or otherwise. Pakistan passport is a public document and has presumption of truth, so can be believed if produced without any objection. From the above exercise it is abundantly clear that from 26.06.2009 till 21.11.2008 the petitioner/ defendant was abroad. While the plaintiff/ respondent in her plaint as well her statement recorded as PW-6, alleged that on 03.10.2008 at 08.00 hours, she got knowledge of the sale mutation and then she sent Tariq Iqbal and Khushdil Khan to Feroz Khan, but Feroz Khan refused her claim and thereafter she and Tariq Iqbal went to Tehsil Office, obtained copies and afterward at evening time visited the office of Inamullah Khan advocate. From the above deposition it transpires that she herself and her witnesses are not truthful witnesses, as at the relevant time and date Feroz Khan, the petitioner/ defendant was out of country (Japan), then how the witnesses met Feroz Khan and how he refused. In such a situation, one could reach to an irresistible conclusion that the alleged narration in the plaint and deposition of witnesses as PW-6, PW-7 and PW-8 is telltale story without solid proof.

11. Further the record depicts that Tariq Iqbal PW-7, during cross examined volunteered that at the time of attestation of impugned mutation he himself with open eyes saw Feroz Khan, relevant portion of said cross-examination is reproduced below:-- It proves that impugned mutation was within the knowledge of Tariq Iqbal PW-7, the real son of plaintiff from the very date of its attestation and it is unbelievable that he had not informed about the mutation to his mother. So the very sitting and meeting of Talb-e-Muwathibat seems to be a cooked story.

12. In addition to above it further transpires that on 28.06.2008 two mutations were attested and plaintiff had made Talb-e-Muwathibat on both sale mutations, but had not mentioned in each suit that for which mutation she made Talb-e-Muwathibat first either against mutation No.304 or 303 challenged in connected C.R. No.4/2012 or simultaneously. So by concealing this fact, the preemptor/ respondent has failed to prove Talb-e-Muwathibat in accordance with law.

13. It needs no emphasis that for successful exercise of right of pre-emption, the performance of Talb-e-Muwathibat, Talb-e-Ish'had and then superior right of pre-emption, in their respective chronological order, is essential. Any deficiency in these legal requirements will render a pre-emption suit liable to an outright dismissal. In the instant case the plaintiff has failed prove Talb-e-Muwathibat and Talb-eIsh'had.

14. The learned trial court has rightly dismissed the suit of respondent/ plaintiff by correctly appreciating the evidence, while the learned appellate court has failed to reappraise the evidence on file in its true perspective and therefore, had committed irregularity, so the judgment and decree of appellate court below is the result of misreading and non-reading of evidence and liable to be reversed.

15. For the aforesaid reasons, the instant revision petition is allowed, the impugned judgment of learned appellate court is set aside and the judgment of the trial Court is maintained. Consequently the suit of the respondent /plaintiff is dismissed with no order as to costs. ZC/43/P Revision allowed.