2006 PLP 604 (CLC)

MUHAMMAD RAZA KHAN, J.

Muhammad Anwar Khan, plaintiff had filed a suit for pre-emption against the transfer of property measuring three Kanals and one Marla to the defendant Abdur Rehman through a registered deed dated 1-3-1995. The suit was contested and the learned Civil Judge decreed the suit on 27-9-2001 with the direction that the cost of the property shall be Rs.1,

000. An appeal was filed, which was allowed by the learned District Judge, Tank vide his judgment dated 14-5-2003 and the impugned judgment and decree, dated 27-9-2001 was set aside and the pre-emption suit of the plaintiff was dismissed. The plaintiff has filed this revision pet don against the said judgment and decree of the learned appellate Court.

2. Learned counsel for the petitioner urged two points at the bar. Firstly that every exchange is not exempted from the process of pre-emption but only the exchange for better management of the land already belonging to the defendant/vendee shall fall in the said exemption clause. The property purchased for better management like access, irrigation, consolidation of land etc. can be exempted but transaction relating to a property cannot be claimed to be exempted for its own better management or for the convenience of the vendee or for its location nearer to the house of the vendee. Secondly it was argued that Talb-e-Muwathibat was properly performed and on the same day the notice Talb-e-Ishhad was issued and since notice was given within 14 days of the date of impugned transaction, therefore, the requirement of mentioning the date, time and place and the name of the informer in the plaint was not necessary because all the precedents on this subject provided for the due protection of the time required for the making Talb-e-Ishhad, which should be within 15 days of the Talb-e-Muwathibat.

3. Learned counsel for the respondent argued that he law provides for the exemption to the transaction of exchange if such transaction was proved to be with the intention of "better management", however, this phrase cannot be restricted to the management of other property. He also argued that the Talb-e-Muwathibat had to be proved by the plaintiff independently of the Talb-e-Ishhad and since the informer was not produced, therefore, the requirement of the Talbs was not satisfied.

4. The provision contains in clause (d)(iv) of section 2 of N.-W.F.P. Pre-emption Act exempts the transaction of exchange for "better management" from the purview of the exercise of right of pre-emption. However, there is no restriction that such a transaction should be with a view of better management of the land or other immovable property already belonging to the vendee. The learned counsel for the petitioner relied on the case of Fazal Rehman v. Khursheed Ali 2004 CLC 359 in support of his contentions. It certainly contains the criteria for the better management but the said list is not exhaustive. It has been specifically held therein that "to define and interpret the term "better management" no hard and fast rule can be laid down". Since the said phrase is unqualified, therefore, any transaction based on the intention of better management shall be exempted irrespective of the fact whether it may be for the better management of the land already owned or for the better management of the property which could not be managed by the vendee or for the better management of other affairs including the convenience, privacy and location of the property. A person having property at a far-off place which could not be properly managed, can be exchanged with another property which could be managed in a better manner in view of its location, accessibility or convenience. If the A legislation has left a provision without any restriction or condition, the same cannot be supplied by interpretation and such an unqualified exemption shall be deemed to be applicable to all the possible modes of better management. Therefore, if the vendee/defendant has sufficiently proved that the suit property was situated nearer to his house and could be managed in a better way whereas the property given in exchange could not be properly managed by him rather it could be appropriately managed by its transferee, it was a sufficient evidence and merely on the far-fetched interpretation, the transaction of exchange cannot be deemed to be pre-emptible.

5. Talb-e-Muwathibat is a necessary step leading towards a pre-emption suit. The name of the informer was a prerequisite and his statement as a witness was extremely important. If the name of the informer is not stated in the plaint as well as in the notice of Talb-e-Ishhad and he dies before appearing as a witness, the claim 6f the plaintiff shall suffer irreparably particularly when it transpires that he was the only witness of the assembly where the Talb-e-Muwathibat was made. In tit absence of the informer's evidence the Talb-e-Muwathibat shall not be established merely on the statement of the plaintiff/pre?emptor. Although it is not imperative that the name of informer must be stated in the notice Talb-e-Ishhad but it becomes expedient in such cases where there is no other witness of Talb-e-Muwathibat that the name of 13 the informer being the sole witness of the Talb should be placed on record at the earliest opportunity. Even if there was an omission to record his name in the notice Talb-e-Ishhad, the plaintiff could have avoided the objection of improvement and afterthought, had the name of the informer been stated in the plaint. However, when the name of informer is neither disclosed in the notice Talb-e-Ishhad nor in the plaint nor even in the list of witnesses, an extremely valuable right is destroyed by such omission. He allegedly being the only witness of prerequisite, if not produced because of death, the proof and Talb-e-Muwathibat shall be missing and the plaintiff shall be deprived of enforcing his right of pre-emption.

6. In view of what has been said above, the findings of the learned appellate Court are without exception. The revision petition is, therefore, dismissed with no order as to costs. H.B.T./36/P???????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.