2010 PLP 1648 (MLD)

SAID MAROOF KHAN, J.

Abdul Hameed respondent No.11 was the owner of the suit land and he sold it to Swal Faqir the predecessor of respondents Nos.1 to

10. The sale was preempted by Palas the predecessor of the petitioners who lodged the preemption suit on 3-(sic)-1998 in the Civil Court at Matta District Swat. Swal Faqir vendee and Abdul Hameed vendor submitted their joint written statement on 27-1-1999 and contested the suit. During the pendency of the suit Palas preemptor and Swal Faqir vendee died so their legal heirs were brought on record.

2. After recording the evidence of the parties the learned Illaqa Qazi/Civil Judge-II Matta, District Swat came to the conclusion that the pre-emptor had not fulfilled the requirements of Talbs in accordance with law and consequently the suit was dismissed vide judgment dated 25-6-2005. The appeal filed by the petitioners was also dismissed by the learned Izafi Zilla Qazi/Additional District Judge Matta Swat on 11-7-2006. Feeling aggrieved the petitioners filed the instant revision petition.

3. The learned counsel for the petitioners contended that the preemptor/petitioner got the knowledge of impugned sale transaction on 15-7-1998 at 10-00 A.M. at a place known as Gawalyari Chowk and that on the same day, time and place he declared his intention to pre-empt the sale and subsequently on 21-7-1998 he had fulfilled the requirements of Talb-i-Ishhad by sending the notice to the vendee. That the performance of Talabs is established on record, therefore the findings of the courts below are absolutely wrong and illegal.

4. The learned counsel for respondents Nos.1 to 10 however, argued that Palas the predecessor of the petitioners had neither performed Talb-i-Muwathibat nor himself issued any notice of Talb-i-Ishhad as required under section 13(3) N. -W.P.P. Preemption Act and thus the suit filed on his behalf by his special attorney deserved dismissal and it was rightly dismissed. That the concurrent findings of fact recorded by the Courts below are not suffering from any infirmity, therefore, the same could not be disturbed by this Court in exercise of revisional jurisdiction.

5. I have considered the submissions of the learned counsel for the parties and perused the record. To prove the performance of Talbs Muhammad Afzal one of the legal heirs of the preemptor got recorded his own statement as P.W-1 and in addition he also relied upon the evidence of P.W.2 Sadozay in whose presence the requirements of Talbs were allegedly fulfilled. However, there are material contradictions in their statement with regard to the date of knowledge of sale transaction and performance of talbs. Although in their examination-in-chief both the witnesses have mentioned the date of knowledge of sale and performance of Talb-i-Muwathibat as 15-7-1998 but in cross-examination P.W. Muhammad Afzal stated that they got the knowledge of sale transaction about 6/7 days prior to the date of execution of power of attorney in his favour whereas P.W.2. Sadozay deposed that the power of attorney was executed after 9/10 days of performance of Talb-i-Muwathibat. The power of attorney, as per statement of P.W. 1, was executed on 17-7-1998. The above referred statements of both the P.Ws. are inconsistent with the plaint.

6. According to the plaint Talb-i-Ishhad was performed on 21-7-1998 after six days of performance of Talb-i-Muwathibat whereas P.W.2 stated in his cross-examination that Talb-i-Ishhad was made on the following day of getting knowledge of sale transaction. Both P.W. and P.W.2 alleged that notice Talb-i-Ishhad has thumb impressed by Palas the predecessor of the petitioners but this fact is not established on record. The notice available on record reveals that it was not signed/thumb impressed by the preemptor himself. Muhammad Afzal P.W. 1 was recorded to be the executant of the notice but he has denied this fact in his statement.

7. The evidence on record is not indicating that immediately on getting the knowledge of sale transaction the preemptor had expressed his intention to preempt the sale and then performed Talb-i-Ishhad in accordance with the provision of section 13(3) N.-W.F.P Preemption Act and thus the Courts below had rightly non-suited the petitioners. The impugned judgment being well reasoned and based on proper appreciation of evidence warrant no interference by this Court. The revision petition being without substance is dismissed along with C.M. No. 173 of 2006. H.B.T./188/P Petition dismissed.