2015 PLP 112 (YLR)

MUHAMMAD DAUD KHAN, J.

This Revision Petition is directed against the judgment and decree dated 28-4-2008 passed by learned Additional District Judge, Karak at Takht-e-Nasrati. While accepting the appeal, the learned appellate court decreed the suit of the respondents/plaintiffs, setting aside the judgment and decree dated 30-6-2007 passed by learned Civil Judge-II, Takht-e-Nasrati.

2. Before moving forward to the core question involved in the instant petition, it is essential to briefly describe the facts of the case. Respondents/plaintiffs/preemptors (respondents) filed a suit for possession through pre-emption on all the three grounds allowed by law. Respondents challenged sale mutation No. 4112, attested on 30-1-1996, vide which land measuring 50 kanals situated in the local limits of Moza Khojki, was purchased by petitioners/ defendants (petitioners). It was alleged that the real sale consideration was Rs.100000 , but an amount of Rs.450000 was shown in order to defeat the right of pre-emption.

3. It is averred in the plaint that the respondents came to know about the suit sale on 10-2-1996 at 04.00 p.m., evening time through Rahim Shah. The respondents immediately made Talb-e-Muwathibat. Later on, in confirmation of the first Talb through register AD, the respondents sent to the petitioners notices Talb-e-Ishhad. Finally Talb-e-Khasoomat was made by instituting a plaint before the Court. The plaint was verified, signed and instituted by one Hamidullah, attorney of respondents.

4. Petitioners controverted the aver-ments of the plaint. The trial court framed several issues of law and facts. Parties adduced pro and contra evidence in support of their respective stance. On conclusion of trial, the learned trial court dismissed the suit of the respondents. The main ground for dismissal of the suit was that the respondents failed to prove the performance of Talbs according to the mode and manner provided in section 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987.

5. By means of its judgment and decree dated 28-4-2008, the learned appellate Court accepted the appeal. The suit was thus decreed. The reasoning of the appellate Court was that Talbs were proved in accordance with the requirements of law.

6. The sole question before this court is institution of suit and statement of respondents through attorney and performance of Talbs.

7. Learned counsel for the petitioner stated that the Talbs performed by respondents, but the suit has been filed through attorney and their statement also recorded through attorney; that respondents have failed to produce informer to prove performance of Talb-e-Ishhad; that in order to prove delivery of notice respondents did not produce postman.

8. Learned counsel for the respondents argued that under the law there is no restriction to file suit through attorney or recording of statement through attorney; that the informer was not produced due to strained relation with him and in this respect an F.I.R No.174 is also placed on file; that the respondents have proved his case in accordance with law.

9. Perusal of the plaint reveals that it was verified, signed by and instituted through one Hamidullah attorney of the respondents. The plaint reveals that Talb-e-Muwathibat as well as Talb-e-Ishhad were performed by respondents/plaintiffs themselves. Paras Nos.2 and 3 of the plaint is reproduced as under:--

10. It appears that the respondents got knowledge of the suit sale through Rahim Shah. In order to prove Talb-e-Muwathibat, respondents did not record evidence of informer Rahim Shah. It is an established principle that if a party does not produce a witness in his favour, the Court will draw an inference that had the witness been produced, he would not have supported the case of the party, this principle has been reiterated in recent case-law in the particular context of pre-emption cases. Reference may be made to "Sarwar Ahmad v. Iftikhar Ahmad and others" (2012 YLR 2348) Lahore wherein it was held:-- "Plaintiff had not produced the alleged informer from whom he had obtained the information of the transaction, and the informer, from whom the plaintiff had received information, under the law, had to be produced." In "Mst Zahida Parveen v. Mst. Parveen Akhter" (2012 CLC 1497) the Court ruled:-- "Non production of the person, from whom pre-emptor received knowledge of sale could lead to an adverse inference to be drawn that he might not have supported the pre-emptor, if he had been produced as a witness"

11. The petitioners have denied the performance of Talb-e-Ishhad in their written statement as well as before the Court. By this unequivocal denial of the defendants, the plaintiffs were under obligation to produce the postman to prove delivery of registered notices of Talb-e-Ish'had, in compliance with the principle set by the Hon'ble Supreme Court in cases titled "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105), "Basheer Ahmed v. Ghulam Rasool" (2011 SCMR 762) and "Allah Ditta through L.Rs. and others v. Muhammad Attar" (2013 SCMR 866).

12. The burden of proving a positive assertion lies on the party making such assertion. A negative assertion may be sufficiently proved by a statement recorded on oath. In light of this principle, the burden to disprove the element of notice of Talb-e-Ishhad stands discharged by the petitioners by making a statement on oath. This shifted the burden to respondents to produce evidence in support of their contention. The respondents have failed to discharge their burden as they neither produced the concerned postman nor the relevant dispatch-book. Resultantly, the respondents have failed to prove Talb-e-Ishhad, in accordance with law. In light of this factual and legal perspective, the judgment of appellate court is suffering from misreading of evidence and wrong application of law thereto, which is not sustainable in the eyes of law. The right of pre-emption being a feeble right is to be proved strictly in accordance with law, with cogent, coherent and trustworthy evidence.

13. The plaint was signed and verified and instituted by one Hamidullah, attorney of respondents. It simply means that Talb-e-Khasoomat was performed by attorney, not by respondents (as pre-emtors) themselves. To evaluate the consequences of non-filing of suit by preemptors/ plaintiffs themselves in the light of the Khyber Pakhtunkhwa Pre-emption Act, 1987, firstly it would be necessary to understand the spirit of law on the subject. Section 13 of the Act is reproduced as under:-- "

13. Demand of Pre-emption.

(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:-- (a) Talb-e-Muwathibat, (b) Talb-e-Ishhad (c) Talb-e-Khasoomat. Explanation,-(i)"Talb-e-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption. Note.-Any words indicative of intention to exercise the right of pre-emption are sufficient. Explanation.-(ii) "Talb-e-Ishhad" means demand by establishing evidence. Explanation.-(iii) "Talb-e-Khasoomat" means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-e-Muwathibat. (3) [Subject to his ability to do so, 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 notice under section [32], or knowledge, whichever may be earlier, make Talb-e-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: Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-e-Ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of Talb-e-Muwathibat under subsection (2) and Talb-e-Ishhad under subsection (3), he shall make Talb-e-Khasoomat in the Court of competent jurisdiction to enforce his right of pre-emption." (To emphasize, underline is mine)

14. Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 is couched in negative form providing that right of pre-emption, shall be extinguished unless the pre-emptor establishes the three ingredients stipulated therein strictly in accordance with law. A bare reading of subsection (4) of section 13 of the Act reveals that Talb-e-Khasoomat is equally important and required specific mode and manner to perform it.

15. The opening line of subsection (4) of section 13 of the Act, is meaningful and purposeful and imposes the legal obligation of satisfaction of performance of two Talbs by the plaintiff (s) himself or through his/her attorney or agent, as provided by section 14 of the Act. If a pre-emptor is unable to make demands under section 13 of the Act, he may appoint agent for this purpose. The section is reproduced for convenience as under:-- S.14. Demands by the guardian or agent.

Where a person is unable to make demands under section 13, his, guardian or agent may make the required demands on this behalf.

16. The cumulative effect of both sections 13 and 14 of the Act is that Talb-e-Khasoomat can only be made by a person whether he is pre-emptor or his guardian or agent appointed by him, who satisfies the requirements of Talb-e-Muwathibat and Talb-e-Ishhad personally.

17. The words used in subsection (4) of section 13 of the Act clearly indicate the personal knowledge about the obligation carried out by himself in shape of Talb-e-Muwathibat and Talb-e-Ishhad.

18. In my humble view the suit of pre-emptor under section 13(4) of the Act can be filed by a person who himself performs the Talb-e-Muwathibat and Talb-e-Ishhad. In the instant case, the Talb-e-Muwathibat and Talb-e-Ishhad were allegedly performed by respondents (pre-emptors) themselves but suit was filed by Hamidullah, attorney, meaning thereby that Talb-e-Khasoomat was not performed according to law. It further follows that the very suit is bad in law.

19. These material aspects of the case escaped from the notice of the learned Appellate Court. As a result, he by reaching at a wrong conclusion, reversed the judgment and decree of the learned trial Court, decreeing the suit of the respondents/ plaintiffs. He thereby committed an illegality and irregularity. Resultantly, this revision petitions is allowed, the impugned judgment and decree of the learned appellate court is set aside and suit of respondents/plaintiffs is dismissed. No order as to costs. AG/334/P Revision allowed.