2004 PLP 53 (YLR)

3. It was also argued that the notice of Talb‑e‑Ishhad Exh.P.W.1/1 was also not proved in accordance with law; in that no official of the post office was produced to prove that the same was sent by the respondent/plaintiff. Moreover, the said notice was barred by time because not only in the plaint but in the statement before the Court also the respondent No. 1/plaintiff has stated that he gained the knowledge of the sale transaction 20/25 days before filing the suit. Notice of Talb‑e‑Ishhad Exh.P.W.1/1 is dated 5‑11‑1992, whereas the suit, was filed on 14‑11‑1992, which makes the said notice beyond two weeks.

4. On the other hand Mr. Muhammad Javed Yousafzai, Advocate the learned counsel representing respondent/plaintiff argued that Talb‑e‑Muwathibat was made in accordance with the requirement and it was not necessary to mention the date, time and place of Talb‑e‑Muwathibat. Reliance was placed on Muhammad Zarin v. Aamer Mehmood PLD 2000 Peshawar 20.

5. It was also argued that notice Talb- e‑Ishhad had also been properly proved. The said notice was attested by two truthful witnesses, who deposed having signed/ thumb‑impressed the same and the said notice was sent within time prescribed by law. In fact the respondent No.1/plaintiff came from Karachi 20/25 days before filing, of the suit having gained the knowledge, he performed Talb‑e‑Muwathibat and thereafter issued notice of Talb‑e‑Ishhad Exh. P.W.1/1. The same was within time.

6. It was also argued that Bakht Ali was not required to be served with any notice. He had purchased the suit property from the brother and nephews of the plaintiff/respondent No.1, Fazal Qadir and thereafter he sold the suit property to the petitioner, which was pre‑empted by respondent No. 1.

7. I have heard the learned counsel for the parties and perused the record.

8. The argument of the learned counsel for the petitioner that neither the date, time or place when Talb‑e-Muwathibat was mentioned in the plaint nor the plaintiff disclosed the name of any person from whom he gained knowledge of the alleged sale, either in his plaint or in his statement before the Court, therefore, he failed to prove Talb‑e‑Muwathibat has a force in it. Perusal of the plaint shows that in paragraph No.3 he only stated that:‑‑ Neither the date nor place nor the time when he made Talb‑e‑Muwathibat was mentioned in the plaint nor did he mention as to from whom he gained knowledge of the alleged sale. Non‑mentioning of the place, date and time of Talb‑e‑Muwathibat was fatal to the case of respondent No. 1/plaintiff as held in Haji Muhammad Salim v. Khuda Bakhsh PLD 2003 SC 1315.

9. Likewise non‑disclosing the source of information regarding the sale and the names of persons before whom he made Talb‑e‑Muwathibat would amount to non fulfilling the requirements of section 13(3) of N.‑W.P.F. Pre‑emption Act, 1987 as held in Mst. Shamim Akhtar v. Kh. Maqsood Ahmad and others 1998 SCMR 2227.

10. The argument of the learned counsel for the petitioner that notice of Talb-e‑Ishhad Exh.P.W.1/1 was also not proved in accordance with law also has a force in it. The perusal of the record shows that notice of Talb‑e‑Ishhad dated 5‑11 -1992 was placed on record as Exh.P.W.l/1. Its attesting witnesses were also examined but no witness from Postal Department was examined to prove the service of the notice. A similar question came up for hearing before the august Supreme Court of Pakistan in Mir Sahib Khan v. Muhammad Rauf Khan 1992 SCMR 1780, in which it was held:‑‑ "If the provision of subsection (3) is strictly interpreted, the pre emptor has to give the notice of Talb‑e‑Ishhad as soon as possible without wasting a single moment much less waiting for the last day of two weeks. It the case in hand the plaintiff/petitioner failed to produce postal receipt of the acknowledgement receipt or the employee of the Postal Department in proof of his allegation that the required notice was sent on 3‑8‑1988 as alleged by him, under registered cover acknowledgment due. The burden of proving Talb -e‑Ishhad was obviously on the plaintiff/petitioner and he having failed to discharge the onus placed upon him, the learned trial Court as well as the Appellate Court could not presume that the requirement of section 13, subsection (3) had been complied with. " Likewise this Court in Muhammad Yousaf Khan v. Khan Sardar and others PLD 2001 Peshawar 40 held: "A perusal of the record clearly shows that neither notice of Talb‑e Muwathibat has been proved cogently nor there is any evidence with regard to Talb‑e‑Ishhad as no official from the post office has been produced and nothing is available on the record with regard to the proof of Talb‑e‑Ishhad."

11. Keeping in view the above mentioned dicta it can be held that the notice of Talb‑e‑Ishhad Exh.P.W.1/1 was not served in accordance; with the requirement of section 13 of the N.‑W.F.P. Pre‑emption Act.

12. Since respondent No. 1/plaintiff ha( failed to prove that he made Talbs in accordance with law, therefore, the learned trial Court had rightly dismissed his suit, but the learned Appellate Court without discussing any evidence through a non speaking judgment consisting of only four lines without appreciating the material available on record and legal position wrongly allowed the appeal. The said judgment and decree of the learned Appellate Court are not sustainable in the eye of law. I, therefore, set aside the same and restore that of the learned trial Court. There shall be no orders as to costs. H.B.T./955/P Revision allowed