2013 PLP 1161 (YLR)

SHAH JEHAN KHAN AKHUND-ZADA, J.

This revision petition has been directed against the judgment and decree dated 10-11-2010 of the learned Additional District Judge-II, Peshawar whereby he dismissed the appeal of Saifullah and others, petitioners/ plaintiffs against the judgment and decree dated 17-6-2010 of the learned Civil Judge-XVIII, Peshawar and upheld the judgment and decree of the learned trial Court.

2. Brief facts of the case are that Azad Khan plaintiff, now dead being represented through his legal heirs, (hereinafter to be referred as petitioners/ plaintiffs) instituted suit against Mst.Salma Baseer respondent/defendant for possession through pre-emption in respect of the suit property purchased by the respondent/ defendant through sale Mutation No.4685 attested on 5-1-1998 for a sale consideration of Rs.1,75,

000. It was further alleged in the plaint that the pre-emptor is a co-sharer in the suit property, his property is also situated contiguous to the suit property therefore, he has superior right of pre-emption on the basis of contiguity, participation in amenities and appendages being co-sharer while the vendee has got no such rights. According to the pre-emptor, he has got the knowledge of the suit transaction on 1-3-1998 at evening at his hujra through Jamshed and on receipt of this information he had made Talb-e-Muwathibat there and then in presence of the aforesaid informer, Muhammad Shakeel, Muhammad Aqeel and Haroon-ur-Rashid followed by issuance of notice of Talb-e-Ishhad to the respondent/defendant to admit the claim of the pre-emptors but she denied, hence the instant suit.

3. The respondent/defendant contested the suit by filing the written statement wherein she raised various factual and legal objections and grounds. Divergent pleadings of the parties gave birth to the following issues:-- ISSUES. (1) Whether plaintiff has got a cause of action? (2) Whether the plaintiffs suit is barred by time? (3) Whether the plaintiff is estopped to sue? (4) Whether the plaintiff's suit is incompetent in its present form? (5) Whether the Talbs have properly been made as required under section 13 of Pre-emption Act, 1987? (6) Whether the plaintiffs suit is properly valued for the purpose of court-fee and jurisdiction? (7) Whether the plaintiff has come to the court with clean hands? (8) Whether the plaintiff has superior right of pre-emption? (9) What is the market value of the suit property? (10) Whether the plaintiff is entitled to the decree as prayed for? (11) Relief.

4. In order to prove their claim, the petitioners/plaintiffs besides their attorney Hayatullah produced three witnesses while the Zeeshan Baseer attorney for the respondent/defendant appeared as DW-1 only in support of his contention. After hearing the learned counsel for the parties, the learned trial Judge dismissed the suit of the petitioners/plaintiffs vide his judgment and decree dated 17-6-2010. Feeling themselves dissatisfied from the above findings of the trial Court, the petitioners/ plaintiffs preferred an appeal which also met the same fate vide judgment and decree dated 10-11-2010 of the learned lower appellate Court. Hence the instant revision petition against the concurrent findings of the two Courts below.

5. I have heard the learned counsel for the pre-emptor and have gone through the available material placed on file.

6. The only question for determination in the instant case is whether the petitioners/plaintiffs have performed the requisite shari talbs according to the requirements of section 13 of N.-W.F.P. Pre-emption Act or not. It was averred in the plaint that Azad Khan deceased pre-emptor has got the knowledge of the impugned transaction on 1-3-1998 at evening time at his hujrah through Jamshed and he made Talb-e-Muwathibat there and then in presence of Muhammad Shakeel, Muhammad Aqeel and Haroonur Rashid. In the instant case Azad Khan pre-emptor has expired during the pendency of the suit before recording his statement before the trial Court, so his son namely Hayatullah appeared as P.W.2 who stated that his deceased father Azad Khan had told him that on 1-3-1998 his father was present in his Hujra along with Shakeel Ahmad, Aqeel Ahmad and Haroon-ur-Rashid when at about 6.30 hours Jamshed came there and informed his father about the sale of the suit property and his father at once made Talb-e-Muwathibat there and then and there after on 5-3-1998 his father along with the aforementioned persons went to the office of Advocate where he wrote notice of (Talb-e-Ishhad) and sent it to respondent/ defendant. In his cross-examination he had admitted that the informer Jamshed came to his Hujra situated at Qayum Abad and his father had told him that Jamshed had come to his Hujra at Qayyum Abad at 6.30 hours and informed him about the sale in dispute. He had also admitted that he himself was not present at the time of such information. He further deposed that whatever he has stated above, the same was not in his knowledge but his deceased father had told him before his death. He does not remember the day but the date was 15th February, 2009. Jamshed Khan resident of Mohallah Usmania Pawakka, the alleged informer appeared as P.W.1 and deposed that on 1-3-1998 (time is not mentioned) he came out of his house and saw construction work going on in the suit property upon which he collected information to the effect that the suit-land has been purchased by brother of Dr.Kabeer. He after offering Maghrib prayer in his village, went to the Hujra of Azad Khan where he (Azad Khan) along with Muhammad Shakeel, Muhammad Aqeel and Haroon-ur-Rashid were present. He informed the pre-emptor about the sale of the suit property on which he has stated that he would pre-empt the suit property. On 5-3-1998 he along with the plaintiff Azad Khan, the above named three persons went to an Advocate where the said Advocate wrote four notices which he thumb impressed while the other marginal, witnesses put their signatures on it and same was sent to the respondent/ defendant. In his cross-examination he has deposed that when the respondent/defendant started construction over the suit property, he came to know about the sale; that he does not remember the day but Azad Khan had told him that on that day the date was Ist March. He also does not know about the year. He also does not remember the time at which he reached the hujra of Azad Khan. Haroonur Rashid and Shakeel Ahmad appeared as P.W.3 and P.W.4 and narrated almost the same story put forth by Jamshed Khan P.W.1. In their cross-examination both the witnesses had deposed that they are residing at Qayyum Abad and the distance between the Qayyum Abad and the locality of the suit property is three kilometre and a person going on foot can take hardly fifteen minutes to reach Qayyum Abad. Both of them further deposed that no time has been mentioned in the notice Exh.PW1/1. It also transpires from contents of the notice of `Talb-e-Muwathibat' that the pre-emptor was informed by informer Jamshed in his hujra situated at village Pawaka and not at village Qayum Abad which is at a distance of three kilometres from village Pawaka.

7. In the instant case the plaintiff Azad Khan expired before recording his statement in the trial Court, therefore, he has not substantiated the performance of Talb-e-Muwathibat and thus the only question for determination by this Court is that whether Jamshed Khan the alleged informer has proved the Talb-e-Muwathibat made by the plaintiff Azad Khan. Keeping in view his statement, he is not truthful and reliable person because he has made so many improvements in his statement. The non-mentioning of source of his information also renders this credibility of his testimony doubtful. Neither he remembers the day on which he got information of the sale and the date i.e. First March was conveyed to him by the plaintiff. It is on the record that the plaintiff was residing at Mauza Qayum Abad where he was informed about the sale transaction in his Hujrah while in the notice, Exh.PW-1/1 the residence of the plaintiff was shown Mauza Pawaka. According to P.W.3 Haroon-ur-Rashid the informer arrived at the hujrah of the plaintiff situated at Garhi Abdul Qayum whereas the plaintiff in para-1 of the plaint has mentioned that he got the information of sale of the suit-land while he was present in his hujrah situated at mauza Pawaka. Thus, the plaintiff has failed to clarify that both the mauzas are one and the same places. Therefore, I am of the considered view that performance of requirement Talb-e-Muwathibat which is pre-requisite mandatory requirement of section 13 of the N.-W.F.P. Pre-emption Act, 1987 for filing of suit for pre-emption has not been proved to have fulfilled by the pre-emptors in accordance with the requirements of section 13 of N.-W.F.P. Pre-emption Act, hence, it was rightly held by the two learned Courts below that the petitioners have failed to perform requisite talbs in accordance with the provisions of section 13 of N.-W.F.P. Pre-emption Act, 1987 and thus issue No.5 has been rightly decided against the petitioner by the two learned courts below.

8. Since the pre-emptors have failed to prove the performance of mandatory requirement Talb-e-Muwathibat in time and his suit was rightly dismissed by both the Courts below on this ground therefore, I need not want to discuss the remaining issues framed in this case because it would be a futile exercise, however, appraisal of evidence on record leads me to hold that the findings of both the learned Courts below on all remaining issues are well founded.

9. In view of what has been stated above, I find that both the Courts below have rightly non-suited the petitioners/ plaintiffs and the judgments and decrees passed by the learned two courts below being based on proper appreciating of evidence on record are well-founded. The impugned judgments and decrees neither suffer from miscarriage of justice nor the result of mis-reading or non-reading of evidence on record. Likewise, I find no illegality or material irregularity or jurisdictional error in the impugned judgments to warrant interference by this court in its revisional jurisdiction, hence the instant revision petition is dismissed. MH/92/P Revision dismissed.