2012 PLP 1292 (YLR)

AZMATULLAH MALIK, J.

Mst. Yasmeen Bibi had instituted suit to pre-empt the suit land 84-Kanals, 5-Marlas situated in Moza Kairay Sheikhan District Kohat purchased by Sawab Gul vide Mutation No.526 dated 28-2-2009. The suit was contested and was eventually dismissed by the trial Court dated 23-1-2010. On appeal the learned ADJ-I, Kohat vide judgment/decree dated 7-7-2010 dismissed the appeal of the petitioner by upholding the judgment of the trial court.

2. Learned counsel for the petitioner has mainly contended that the Talbs were performed strictly according to section 13 of the N.-W.F.P. Pre-emption Act 1987. All the witnesses were consistent regarding time date and place, moreover, the petitioner has the superior right of pre-emption being co-sharer. Both the Courts below have erred while non-suiting the petitioner.

3. On the other hand counsel for the respondent vehemently argued that the petitioner failed to perform the Talb-e-Muwathibat as she herself did not appear in the Court as a witness rather her husband being attorney appeared on her behalf. Both the witnesses were inconsistent regarding time an place of performance of Talb-e-Muwathibat by the petitioner. Both the Courts below have properly attended this important aspect of the case while deciding the issue in hand, he maintained.

4. I have heard the learned counsel for the parties and have perused the record with their able assistance.

5. The perusal of record would show that petitioner has miserably failed to establish the factum of performance of Talb-e-Muwathibat particularly time, date and place as both the witnesses contradicted each other regarding their meeting with the petitioner at the relevant time. Both the witnesses had given altogether a different time of meeting with the petitioner, one stated that he met the petitioner in the morning whereas the other stated her meeting with the petitioner in the evening. The crucial issue between the parties is about performance of Talbs by the petitioner pre-emptor in accordance with the law and that fate of this revision petition depends upon the findings of that issues i.e. issue No.4. The trial Court had dealt with issue No.4 (Talbs) and issue No.5 (superior right) together and decided the same against the petitioner pre-emptor. It needs no emphasis that for succeeding and grant of degree in pre-emption suit the performance of Talb as prescribed by the section 13 of the N.-W.F.P. Pre-emption Act, 1987 is a mandatory requirement and if the same are not performed in accordance with law, even the superior right claimed by petitioner/pre-emptor stand extinguished. Notice Talb-e-Ishhad is also silent about the time of performing Talb-e-Muwathibat. The deposition of both the witnesses of Talbs makes the entire affairs out of section 13 of N.-W.F.P. Pre-emption Act 1987. In a case title Mian Pir Muhammad and others v. Faqir Muhammad and others report in PLD 2007 SC Page 302 the larger Bench of the august Court dealt with the issue in depth and reiterated the view taken in Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC Page 315 and Fazle Subhan and 11 others v. Mst. Sahib Jamala and other PLD 2005 SC Page 977 it was held that a plaint wherein the date, place and time of Talb-e-Muwathibat and date of issuance of notice of performance of Talb-e-Ishhad in term of section 13 of the Act is not provided it would be fatal for pre-emption suit.

6. Clearly therefore the petitioner in this case has failed to fulfil the requisite conditionalities of making of Talb-e-Muwathibat and making of some improvement in evidence was not enough. Due to non-performance of talbs the superior right to pre-empt, if any, stood extinguished in term of section 13 of the N.-W.F.P. Pre-emption Act 1987.

7. As discussed above the petitioner had failed to perform the Talbs as required therefore, the judgment of both the Courts below were base on proper appraisal of evidence which requires no interference by this Court in its revisional jurisdiction. As a result revision petition in hand is dismissed and the judgment of both the courts below are upheld. H.B.T./326/P Petition dismissed.