1997 PLP 1800 (SCMR)

Nemo for Respondent. Date of hearing: 6th June, 1997. MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑The petitioner is seeking leave to appeal against the judgment of a learned Judge of Peshawar High Court, Peshwar, whereby Civil Revision No.462 of 1994, filed by the petitioner against the two concurrent judgments of the Courts below was dismissed and the judgment and the decree non‑suiting the petitioner in pre emption suit was maintained.

2. The suit brought by Rehmat Shah for possession by pre‑emption of land sold to Shamroz respondent having been dismissed on the grounds, firstly, that he had omitted to make the Talabs as required under section 13 of the N.‑W.F.P. Pre‑emption Act (X of 1987), and secondly, that he had waived his right of pre‑emption before the sale was effected and an appeal having been dismissed by the learned District Judge, he filed civil revision in the High Court.

3. The Courts below have concurrently held that the petitioner had failed to make the requisite 'Talabs' strictly in accordance with law. The Courts below have also found that before purchasing the land, Shamroz had offered to the petitioner to buy the land to which he replied in the negative saying that the latter being the former's nephew was at liberty to make the purchase and, therefore, he had no objection thereto.

4. Mian Yunus Shah, learned Senior Advocate Supreme Court, in support of this petition had raised the following contentions:‑‑ "(i) That the findings of the two Courts below duly affirmed by the learned High Court on the question of failure of making 'Talabs' suffer from gross misreading and non‑reading of evidence; and (ii) that the reply by the petitioner to the offer made by the respondent for buying the land does not constitute waiver of the petitioner's right to pre‑empt the sale when it had taken place. In this context the learned counsel has placed implicit reliance on the authoritative pronouncement in Bhagat Singh v. Hukam Singh and others (AIR 1947 Lahore 299) and an old case from Allahabad jurisdiction based on Islamic Law of Pre‑emption in Muhammad Nasiruddin v. Abdul Hasan ILR (1894) 16 All. 300."

5. After hearing the learned counsel for the petitioner we grant leave to appeal in this case to consider: (i) whether the petitioner on the evidence on record fulfilled the requirements of Talab‑i‑Muwasibat and Talb‑i‑Ishhad so as to entitle him to successfully pre‑empt the sale and (ii) whether the petitioner's reply to the offer ‑made by he respondent for purchasing the disputed land does not constitute the 'waiver' within the contemplation of section 15 of the N.‑W.F.P. Pre‑emption Act (X of 1987). M.B.A./R‑5/S Petition allowed.