1996 PLP 1254 (MLD)

(4) Whether the vendees/defendants have incurred an additional amount and as well have made improvements on the completion of sale and over the suit property respectively, if so, to what extent and with what effect? (5) Whether the pre‑emptor has failed to comply with the provisions of section 13 of the Act? (6) Whether the suit is time‑barred? (7) Whether the amended written statement is not in accordance with the orders of Court? (8) Whether the plaintiff has got superior right of pre‑emption? (9) Whether the sum of Rs.3,22,000 has been fixed in good faith and paid actual? (10) Market value? (11) Relief.

3. After recording the respective evidence of the parties, the trial Court dismissed the suit on 2‑12‑1992. Dissatisfied with the judgment and decree of the lower Court, the plaintiff came with Ist Regular Appeal No.2/92 before this Court but the same was subsequently entrusted to the Court of District Judge, D.I. Khan vide order of a Division Bench dated 10‑10‑1994. On receipt of the file, the appeal was numbered as 142/94 in the Court of learned District Judge, D.I. Khan, to his bad luck the appeal did not bear any fruit as the same was dismissed on 11‑1‑1995. Hence this revision.

4. It is stated in para. 4 of the plaint that the plaintiff gained knowledge of the impugned sale on 21‑5‑1988 from the defendants and he made Talb‑e Muwathibat there and then where after on the following day he made Talb‑e Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgment due, to the vendees‑defendants. Muhammad Iqbal, Special Attorney of the plaintiff, has entered the witness‑box as P.W.5 and stated that "on 21‑5‑1988 Muhammad Yunis, defendant No.2, opened the shop and the plaintiff when on inquiry came to knOw that defendants had purchased the suit shop, so there and then told him that he would pre‑empt the sale as he had superior right of pre‑emption". Muhammad Yunis, defendant No.2, has not appeared as a witness to dislodge or rebut the version of the plaintiff in respect of Talb‑e‑Muwathibat. Exh.P.W.5/2 is copy of notice of Talb‑e‑Ishhad. Muhammad Ashraf and Muhammad Arif have proved the attestation and execution of the notice, while appearing as P.Ws.6 and 7 during the course of trial. It would have been very difficult for the plaintiff to prove the execution and delivery of the notice, but the defendants by themselves made it easier as they acknowledge the receipt of the notice by sending reply of the same under registered cover. Copy of the same is available on record as Exh.P.W.5/3. In the open para. of the said reply, it is stated as follows:‑‑‑ In the fourth line of the said document it is stated that:‑‑‑ In the twelfth line, it is stated that:‑‑‑ This reply was sent by one Haji Aziz‑ur‑Rehman, Advocate D.I. Khan, on behalf of all the vendees‑defendants. Right of pre‑emption has been defined in subsection (c) of section 2 of the N.‑W.F.P. Pre‑emption Act, 1987 as under:‑‑‑ 'Right of Pre‑emption' means a right to acquire by purchase an immovable property in preference to other persons by reason of such right". The defendants have admitted the preferential right of the plaintiff in Exh.PW.5/3 even on 28‑5‑1988. It transpires that they were still willing to part with the property in favour of the plaintiff if he was ready to pay Rs.3,82,

000. Once Talb‑e‑Muwathibat was made before Muhammad Yunis, defendant No .2, then the plaintiff was not obliged to repeat the same in presence of other witnesses and he was only required to make Talb‑e‑Ishhad by sending the written notice under subsection (3) of section 13 of the Act ibid. Anyhow, Talb‑e‑Muwathibat was made on 21‑5‑1988 and subsection (3) of section 13 of the said Act was complied with on 22‑5‑1988, which is not denied rather admitted by the defendants in Exh.PW.5/3.

5. In the light of the above reasons, the findings of the lower Court on Issues Nos.5 and 3 are set aside and it is held that the petitioner/pre‑emptor has complied with the provisions of section 13 of the Act. The plaintiff could not A rebut the payment of Rs.3,22,000 as sale consideration or market value of the property, therefore, the finding of the lower Court on Issues Nos.9 and 10 are maintained. The vendees have incurred a sum of Rs.30,000 on the purchase of stamp papers and registration fee etc., therefore, they are also held to be entitled, for this additional amount. Since the sale has taken place and the defendants admit the preferential right of the plaintiff, therefore, he has got a cause of action and there is no proof of estoppel against him on the file. The suit is within time and the plaintiffs have preferential right in comparison to defendants.

6. The Courts below have misread the evidence available on record and, therefore, they have failed to exercise jurisdiction vested in them. Resultantly, this revision petition is accepted, the judgments and decrees of the lower Courts are set aside and the plaintiff is granted a decree for possession through pre- emption of the suit property on payment of Rs.3,52,

000. The plaintiff has 8 already deposited a sum of Rs.3.22,000 and he is directed to deposit the remaining decretal amount in the trial Court within a period of one month from today failing which his suit shall stand dismissed. In peculiar circumstances of the case, the parties are left to bear their own costs H.B.T./1926/P Petition accepted