P L D 2015 Peshawar 121 (PLP)

WAQAR AHMAD SETH, J.

Muhammad Haroon Khan appellant has filed this regular first appeal against the judgment and decree dated 19-11-2009, whereby learned Civil Judge-I, Haripur dismissed the pre-emption suit of appellant.

2. Brief and relevant facts leading to instant appeal are that the appellant has filed a suit for possession through pre-emption regarding property fully described in the heading of the plaint on the basis of co-sharership, contiguity and participator in the amenities and appendages against the respondents. The respondents appeared and contested the suit by filing written statement and learned trial court after recording pro and contra evidence and hearing the parties dismissed the suit on 19-11-2009. Feeling aggrieved, appellant has filed this appeal.

3. Arguments heard and record perused.

4. Instead of arguing the appeal on merits, the learned counsel for appellant argued that before filing of this appeal, the appellant filed appeal before the District Judge, Haripur, which was returned on 11-12-2009 for want of pecuniary jurisdiction as the market value of the suit property was Rs.20,50,000/-. The said decision of appellate court/District Judge was not legal as the valuation is to be determined from the plaint and not from the decree, hence, requested for remand of appeal to District Judge.

5. Since the present appeal is not against the order dated 11-12-2009 of District Judge, rather the same is against the judgment and decree dated 19-11-2009 of Civil Judge, Haripur, therefore, learned counsel for appellant while relying on PLD 1993 SC 418, 2007 CLD 492 and PLD 1995 Karachi 66 asked for inherent power and doctrine of estoppel cannot be applied to defeat the provisions of statute or enactment affecting jurisdiction of the Court.

6. It is by now well settled that a person invoking the jurisdiction of any forum for any remedy, relief or redress cannot turn round to question the validity of its verdict and, thus, cannot be allowed to approbate and reprobate, especially in the circumstances when any such order has not been challenged and that too at this belated stage.

7. This appeal is pending since, 2010 and it would not be appropriate to remand the same when on merits the facts remain the same. On merits, the record reveals that witnesses of notice talb-e-ishhad are not mentioned in the plaint. In the case Syed Munawar Hussain Shah and another v. Sahib Khan reported as 2013 CLC 1488(b), it has been held as under:-- "(b). S.13.--Talab-e-Ishhed

Proof

Plaintiff claimed that he performed talb-e-ishhad in the presence of witnesses by sending a notice under registered acknowledgement due cover to the defendant/appellant

Plaintiff failed to mention the names of the witnesses in the plaint in whose presence he alleged performed talb-e-ishhad

Date of notice of talb-e-ishhad had also not been mentioned in the plaint

Talb-e-ishhad was not performed in accordance with law

Appellate Court seriously erred in decreeing the suit of the plaintiff

Judgment and decree was not sustainable under the law".

8. The respondent has denied the receipt of notice of talb-e-ishhad, hence, it was incumbent upon the appellant to have produce postman in the witness box. In the case of Allah Ditta through L.Rs. and others v. Muhammad Anar reported as 2013 SCMR 866, it has been held as under:-- "S. 13.--Suit for Pre-emption

Talb-e-Ishhad, notice of

Burden of proof

Scope

Examination of postman

Plea of pre-emption that attorney of vendee while appearing as witness had admitted the receipt of notice of talb-e-ishhad, therefore, pre-emptor was not obliged to prove the same

Validity

Regarding issuance of notice of talb-e-ishhad, admittedly the postman had not been examined by the pre-emptor

Affirmative onus to prove the receipt of notice of talb-e-ishhad was on the pre-emptor, therefore, notwithstanding any admission of the attorney of the vendee, it was obligatory on the pre-emptor to have proved the sending of notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman

Appeal was allowed and suit for pre-emption stood dismissed in circumstances".

9. Again in the case of 2011 SCMR 762, it has been held as under:-- "S.

13. Pre-eruption suit

Talb-e-ishhad, performance of

Proof

Extent

Held, in circumstances, it was imperative for the plaintiff order to succeed in the suit for pre-emption, to produce evidence, including the postman to prove that in fact notice of talb-i-ishhad was served upon the defendant or that he "refused to accept the notice", which was sent at his address

Findings of High Court that "a plaintiff was not required to produce the acknowledgement due receipt as the only requirement was that of sending of notice through registered post acknowledgment due; plaintiff was not required to establish on record that the said notice had been received by the plaintiff after its service on the vendee" were contrary to law

Principles".

10. As per evidence of the appellant and documents on record, the talb-i-muwathibat allegedly made on 14-7-2005 could not be proved, hence, right of pre-emption being a feeble right and even a single legal infirmity in its exercise would be fatal for non-suiting of the plaintiff/pre-emptor. The learned trial court while appreciating the legal and factual aspects of the case rightly non-suited the plaintiff/appellant and the findings, thus, recorded are found proper and legal rather well-reasoned and remand of appeal to appellate forum would be a futile exercise especially when on the face of record the appellant failed to make out a case. In essence the petitioner has failed to substantiate performance of talbs in accordance with law i.e. Section 13(3) of the N.-W.F.P. Pre-emption Act, 1987. When the petitioner failed to substantiate the requisite performance of talbs in accordance with law then there was no need for ascertainment of market value of the suit land and rather it would be a futile exercise.

11. In the wake of what has been discussed above, it is held that the learned trial Court on proper appraisal of legal and factual aspects of the case has rightly dismissed the suit of respondent and the learned counsel for the petitioner has pointed out no case of misreading or non-reading.

12. Consequently, this appeal being bereft of merit is hereby dismissed. with no order as to costs. ARK/318/P Appeal dismissed.