P L D 2011 Peshawar 108 (PLP)

ATTAULLAH KHAN J.

Kimya Gui, plaintiff/petitioner had filed a suit against ' Khan Muhammad and Nawal Khan, defendant/respondents for possession through pre-emption of the suit property fully detailed in the heading of the plaint, on the basis of contiguity, co-sharership, immunities and appendages.

2. The suit was contested by the defendants who filed written statement and divergent pleadings of the parties gave birth to the framing of the following issues:-- (1) Does the plaintiff has a cause of action to bring the instant suit? (2) Is the present suit within time? (3) Is this suit competent in its present form? (4) Does the plaintiff possess pre-emptive rights qua the land in question? (5) Has the plaintiff preserved his right of pre-emption by making demands of muwathibat and Ishhad as contemplated by law? (6) Whether this suit has not been correctly valued for the purposes of court-fee, if so, what is its correct value for such purpose and to what effect? (7) Whether a sum of Rs. 1,61,000 has actually been paid and fixed in good faith as sale consideration? (8) Have the defendants effected an improvement worth rupees three lacs out of their own purse over the property in dispute, if so, are they entitled to the recovery thereof? (9) What should the judgment/decree be? (10) Relief.

3. Evidence was recorded pro and contra and after hearing arguments, the trial Court vide judgment and decree dated 16-4-1998 decreed the suit of the plaintiff, whereagainst appeal of the defendants was also dismissed vide judgment and decree dated 4-5-1999 of the learned District Judge. However, on revision, this Court vide judgment dated 27-5-2002 remanded the case to the trial Court' for decision afresh after framing an additional issue pertaining to the market value of the suit property which was accordingly framed as under:- (i) What is the market value of the suit property?

4. On remand, after hearing pro and contra evidence; the suit was dismissed by .the trial Court vide judgment and decree dated 24-5-2003 which was upheld in appeal by the learned District Judge vide judgment and decree dated 25-3-2005.

5. Feeling not contented from the concurrent findings of the Courts below, the legal heirs of Kimya Gul, plaintiff have filed the instant revision petition.

6. Learned counsel for the petitioner argued that the case was remanded only for framing of an additional issue regarding the market value of the disputed property but the trial Court has dismissed the suit by crossing his jurisdictional limits because the case was remanded by this Court regarding the market value only.

7. On merits, he argued that the Courts below have wrongly concluded that the plaintiff/petitioners have failed to perform Talabs. According to the learned counsel, the plaintiff/petitioners have proved the performance of demand beyond any reasonable doubt strictly in accordance with the provisions of section 13 of the N.-W.F.P. Pre-emption Act, 1987.

8. On the other hand, learned counsel for the respondents is of the view that there is contradiction between the statements of P.Ws. 5 and 6 regarding the place of performance of Talb-e-Muwathibat. Regarding Talb-e-Ishhad, his submission is that the notice does not contain the date, time and place of performance of Talb-e-Muwathibat. On the strength of this narration, he concluded that both the learned Courts below have rightly dismissed the suit of the plaintiff/petitioners.

9. I have carefully gone through record of the case and considered the arguments of the learned counsel for the parties.

10. I would first discuss Talb-e-Muwathibat. The objection of learned counsel for respondents is that P.Ws. 5 and 6 are at variance regarding the place of performance of Talb-e-Muwathibat. According to P.W.5, he was sitting in the shop of one Naseeb Shah Cloth Merchant. According to P.W.6, the plaintiff was sitting in the shop of Naseeb Shah. Both are in conformity regarding the place of making the first demand. In cross-examination, he has stated that he found his father present in his shop.

11. Now, we have two versions of P.W.6. One in examination-in -chief and the second is in cross. The statement of P.W.6 in examination -in-chief that the plaintiff was sitting in the shop of Naseeb Shah is to be referred because the version expressed in cross-examination is dubious and is not clear. Moreover, these two witnesses (P.Ws 5 and 6) are unanimous regarding the shop of Naseeb Shah. So on this count, it cannot be held that the place of making first demand by the plaintiff is not the same as mentioned by him in his plaint as well as in the statement. The plaintiff has proved the first demand by mentioning the date, time and place in his plaint as well as in his evidence. So the findings of both the Courts below in this respect are liable to be set aside.

12. Coming to the dispute regarding Talb-e-Ishhad. Reference may be given to the notice issued by the plaintiff to the defendant. The same is available on file as Exh. P. W.2/1 and Exh.PW.2/2.

13. The contention of the learned counsel for the respondent is that the notice does not contain the time, date and place, therefore, it is defective.

14. The performance of Talabs is provided under section 13 of the N.-W.F.P. Pre-emption Act, 1987. According to this section, the right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the shape of Talb-e-Muwathibat, Talb e-Ishhad and Talb-e-Khasoomat, Talb-e-Ishhad would be performed by sending a notice in writing under registered cover AD to the vendee confirming his intention to exercise right of pre-emption.

15. The above provision of law prescribes no format of the notice. It is a notice simplicitor sent through registered AD cover to the vendee. There is no provision in the law to mention the date etc. Similarly, non mentioning of Talb-e-Muwathibat in the notice of Talb-e-Ishhad is not a c defect and would not make the notice invalid. It is sufficient to issue notice to the vendee through a registered cover which shall be testified by two marginal witnesses. In my opinion, the date, time and place is important to be mentioned in the pleadings, i.e. plaint and evidence of the plaintiff and its repetition is not necessary in the notice of Talb-e-Ishhad. Reliance may be placed on 2004 YLR 317.

16. The perusal of section 13 of the N.-W.F.P. Pre-emption Act, 1987 reveals that-no format is prescribed for the issuance of notice of Talab-e-Ishhad except attestation by two truthful witnesses and sending through registered cover AD and nothing more is prescribed.

17. The record shows that the plaintiff/petitioners have produced Post Master of the relevant Post Office as P.W.4. He has confirmed the delivery of slip regarding the delivery of registered cover. He has also confirmed that both the registered covers were personally received by the defendant. So the receipt of the notices by the defendant stands proved. The notice is also within time as required under the law. The two witnesses thereto have also deposed in favour of the issuance of Talb-e-Ishhad. In view of these facts, I am of the opinion that since Talb-e-Ishhad was performed validly as required under section 13 of the N.-W.F.P. Pre-emption Act, 1987, therefore, suit of the plaintiff is liable to be decreed.

18. As far as the market value of the suit-land is concerned, as per directions of this Court dated 27-5-2002 in Civil Revision No.75 of 1999, two averages have been prepared by the patwari halqa who was examined as CW-1. According to him, one yearly average comes to Rs.1959 per kanal, while five yearly average comes to Rs. 2175.21 per 1 kanal. The plaintiff has claimed Rs.31,650 as price of the suit-land which is more than the prices assessed in both the averages. So, the price claimed by the plaintiff at Rs.31,650 is declared as the market value of the suit land because the defendant has failed to prove his contention.

19. The result of the above discussion is that this civil revision petition is accepted, the impugned judgments and decrees of both the Courts below are set aside and suit of the plaintiff/respondent is decreed on payment of Rs.31,650 as the market value of the suit-land which he has already paid. No order as to costs. S.A.K./5/P Order accordingly.