2004 PLP 14 (YLR)

The petitioner/plaintiff filed suit for possession through pre‑emption of land mentioned in the heading of the plaint situated at Mauza Nashapa, Tehsil and District Karak, which was decreed in favour of petitioner/plaintiff vide judgment and decree dated 14‑7‑2000. Feeling aggrieved with the said judgment and decree, respondent filed appeal in the Court of learned District Judge, Karak which was allowed vide judgment and decree dated 3 7‑2003 and the suit filed by the petitioner was dismissed. Being not contended with the judgment and decree of the Appellate Court the petitioner has filed the revision petition in hand.

2. Mr. Amanullah Khan Khattak, Advocate the learned counsel representing the petitioner argued that the petitioner had mentioned in notice of Talb‑i‑Ishhad and Talb‑i‑Muwathibat and had also stated in evidence about Talb‑i‑Muwathibat. The said notice has been annexed with the plaint and was part and parcel of the pleadings, therefore, if the factum of Talb‑i- Muwathibat was not mentioned in the plaint that could not be fatal for dismissal of the suit. He placed reliance on Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329.

3. I have heard the learned counsel for the petitioner and perused the record.

4. Perusal of the plaint shows that the petitioner/plaintiff has failed to mention as to whether he had ever raised Talb‑i -Muwathibat. No doubt in para. 4 of the plaint he stated that he gained the knowledge of mutation in question through Patwari Halqa on 11‑7‑1998 and immediately thereafter he issued notice Talb‑i‑Ishhad but as mentioned above he did not mention a single word about Talb i‑Muwathibat. The argument of the learned counsel for the ' petitioner that notice Talb‑i‑Ishhad was annexed with the plaint, hence was part of the pleadings, therefore, there was no need to separately mention Talb‑i‑Muwathibat in the plaint has no force. The requirements of section 13 of the North‑West Frontier Province Pre emption Act, 1997 is that a pre‑emptor has to make Talbs in the following order namely:‑‑ (a) Talb‑i‑Muwathibat, (b) Talb‑i‑Ishhad and (c) Talb‑i‑Khushumat. Talb‑i‑Muwathibat was very important being foremost in the series. It being pure question of fact required proof through, convincing evidence because its non‑proof would entail legal consequences. Talb‑i-Ishhad being also independent Talb was also to be proved in accordance with requirements of the above mentioned section Talb‑i‑Ishhad was not confirmation of Talb‑i‑Muwathibat, therefore mentioning the factum of Talb‑i Muwathibat in the notice of Talb‑i‑Ishhad would not absolve the petitioner/ plaintiff to prove that he made Talb‑i-Muwathibat independently in accordance with law. Since the petitioner/plaintiff had failed to mention the factum Talb‑i‑Muwathibat in his pleadings, therefore, no evidence could also be led, which was outside the pleadings. The Courts below have rightly appreciated this position. I have not been able to find out any illegality or any material irregularity or any jurisdictional error or defect warranting interference. Resultantly the revision petition is dismissed in limine. M.H./952/P Revision dismissed.