2004 PLP 202 (YLR)

(6) Whether the suit is liable to rejection for not affixing court‑fee on the plaint? (7) Whether the suit is liable to rejection on legal as well as Shari grounds? (8) What is the market value of the suit‑land? (9) Whether the plaintiff is co‑sharer in the Khata as well as contiguous owner? (10) Whether the plaintiff has performed Talbs in accordance with N.‑W.F.P. Pre‑emption Act, 1987? (11) Whether the defendants had not given notice to the plaintiff at the time of purchasing the suit‑land? (12) Relief?

4. The plaintiff in order to prove his case produced Muhammad Darvesh, Patwari Halqa Karapa, Ishrafuddin O.K. Daggar, Gul Qabad and Muhammad Salim as P.W.1, P.W.3 and P.W.4 respectively. The plaintiff himself appeared in the witness‑box as P.W.2. In rebuttal, the solitary statement of Abdur Rehman, one of the defendants was recorded as D.W.1.

5. Muhammad Darvesh, Patwari Halqa Karapa and Ishrafuddin O.K. Daggar placed on record‑copies of Revenue Record pertaining to suit‑land. The Patwari Halqa confirmed that plaintiff is owner of Khasras Nos.339 and 340 which are contiguous to suit land. Ishrafuddin O.K. Daggar testified having signed Sale Mutation No.1010 in question and placed on record its copy (Exh.P.W.‑2/1). The plaintiff stated that suit‑land was purchased on the basis of suit mutation for Rs.4,40,000, that he possesses superior right of pre‑emption qua defendants; that he was in his Hujra on 11‑11‑1997 when he was informed about the sale through Aurangzeb and Diyar; that he expressed his intention to file pre emption suit and thereafter on 19‑11‑1997 issued notice in the name of defendants through post office and that Salim Khan and Mushtaq Noor are witnesses to the said notice. Gul Qabad brother‑in‑law of the plaintiff and Muhammad Salim supported the version of the plaintiff. As against this Abdur Rehman stated that suit‑land was purchased for Rs.4,80,000; that plaintiff has no superior right of pre‑emption and that suit‑land was purchased by them on refusal by the plaintiff to purchase the same.

6. The learned Illaqa Qazi/Civil Judge, Buner at Daggar, vide his judgment and decree dated 17‑11‑1999 decided Issues Nos. 1 to 5, 7 and 9 to 11, together and proceeded to hold that Khasras Nos.229 and 240 are `Shamilat Deh' in which the plaintiff is owner. Khasra No.219 in suit is contiguous to Khasras Nos.221 and

240. He also pointed out that at the time of issuance of notices Abdur Rahim, one of the defendants was in Malaysia in connection with labour and that the 'Talbs' have not been satisfactorily proved in accordance with law. Regarding Issue No.8 it was pointed out that suit-land was purchased in consideration of Rs.4,80,

000. Resultantly the suit was dismissed. An appeal was preferred there-against before learned District Judge/Zilla Qazi Buner which was dismissed vide judgment dated 11‑12‑2001 and the impugned judgment and decree of the learned trial Judge was maintained. Hence instant revision petition.

7. Mian Iqbal 'Hussain, Advocate for Bakht Zamin petitioner vehemently contended that sufficient material was available on the file to show that the requisite notices were sent to the respondents through registered A.D. and the respondents were in the knowledge of the pre‑emption suit filed by the petitioner and as such the learned trial Judge had no good reason to hold otherwise. From the evidence on record oral as well as documentary the case of the petitioner stands proved and that the decision on issues found against the petitioner is result of misreading and non‑reading of evidence and due to misconception of law. The learned counsel added that the Courts below have failed to exercise jurisdiction vested rather have exercised illegally and proceeded on wrong premises to hold that the petitioner's evidence is discrepant and issuance of notice has not been satisfactorily proved. In support of the submissions, lie placed reliance on Nathe Khan v. Mst. Rahmat Bibi and others PLD 1961 (W. P.) Baghdad‑ul‑Jadid 96, Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and others 1979 CLC 48 Karachi and Haji Din Muhammad v. Mst. Hajra Bibi and others PLD 2002 Peshawar 21.

8. Mr. Shamsur Rehman, Advocate, on the contrary, supported the judgments and decrees of the learned Courts below and maintained that material on record has been properly evaluated and assessed and the findings recorded therein are unexceptionable and hardly' call for interference of this Court.

9. I have heard at length the arguments of learned counsel for the parties. I have also gone through the entire material available on the file in the light of the rulings cited at the bar.

10. The three demands asserting the right of pre‑emption have their own respective connotations. The first demand, i.e. Talb‑i -Muwathibat or, what is literally meant, the jumping demand is defined in the first explanation to subsection (1) of section 13 which envisages firstly, the act of prospective pre‑emptor coming to know of the factum of a sale, secondly, such knowledge/information emanating from a sitting or meeting, i.e. Majlis and thirdly, and rather fore-mostly declaration of his intention to exercise the right of pre emption immediately on gaining the knowledge of the sale. A person who intends to pre‑empt a sale transaction by enforcing his right of pre‑emption shall, make an immediate demand in the sitting or meeting in which he has come to know of the sale declaring his intention to exercise the right of pre emption technically called "Talb‑i -Muwathibat". He shall be thereafter required to make the demand of "Talb‑i Ishhad" by establishing evidence as soon as possible but not later than two weeks from the date of notice under section 32 of the Act for knowledge whichever may be earlier, by sending a notice in writing attested by two truthful witnesses to the vendee under a registered postal cover with acknowledgment due confirming his intention to exercise the right of pre emption, then comes the demand for "Talb -i‑Khusumat" by filing a suit in a competent Court for enforcing his right of pre emption.

11. In order to appreciate the arguments, of learned counsel for the parties, I also consider it, appropriate to reproduce below section 13 of the N.‑W.F P. Pre‑emption Act, 1987 which reads:‑‑ "

13. Demand of pre‑emption.‑‑(1) The right of pre‑emption of a person shall be extinguished' unless such person makes demands of pre‑emption in the following order namely:

(a) Talb‑i‑Muwathibat; (b) Talb‑i‑Ishhad; and (c) Talb‑i‑Khasumat.

12. The case of the petitioner‑pre emptor in essence is that he possesses preferential right of pre‑emption in suit- land qua the respondents/defendants who are devoid of these qualifications and that immediately coming to know of sale on 11‑11‑1997 through his co‑villager Aurangzeb he made Talb‑i‑Muwathibat and issued legal notices to the respondents/defendants on 19‑11‑1997 through his counsel in the presence of Mushtaq Noor, Muhammad Salim and Gul Qabad. In support of the claim the petitioner‑pre emptor besides appearing himself has produced his brother‑in‑law Gul Qabad and another witness namely Muhammad Salim. As against this, the claim of the petitioner has been totally denied. The validity and propriety of the impugned judgments have been attacked principally on the ground that the same suffer from gross misreading and non‑reading of evidence and misapplication of law and thus are not sustainable. The submission of the learned counsel carries no weight. The learned counsel could not point out any material piece of evidence which has either been misread or non‑read by the learned Courts below. The learned trial Judge has embarked upon every aspect of the case and while deciding issues has discussed each and every witness and document placed on record. The findings are not open to exception and have been rightly affirmed by the learned Appellate Court. There is no cavil with the proposition that a judgment rendered by the Civil Courts, whether at the trial or the appellate level, without considering evidence on the record and/or misreading the same, is a fit subject for the exercise or the revisional jurisdiction of the High Court but in the present case the material on record has been properly scrutinized and no case for exercise of revisional jurisdiction has been made out. Ghulam Muhammad and others v. Abdur Rehman and others PLD 1993 Lahore 443, Zafar Ali v. Zainul Abidin and another 1992 SCMR 1886, Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Shafi Muhammad v. Muhammad Hazar Khan and others 1996 SCMR 346.

13. It may not be out of place to mention here that the pre‑emption right, being a feeble right pre‑emptor seeking to exercise such right was bound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre‑emption decree. Wahid Bakhsh and others v. Abdul Qayum and others 1997 MLD 2945 Peshawar.

14. In view of above discussion, I fine no occasion to disturb the concurrent findings of fact recorded by the Courts below on the basis of the material on the file. The revision petition being destitute or force, is dismissed with no order as to costs. M.H./931/P Revision dismissed.