2013 PLP 379 (CLC)

NISAR HUSSAIN KHAN, J.

Petitioner has challenged the judgment and decree of learned District Judge Lakki Marwat dated 12-5-2011, whereby his appeal against the judgment and partial decree of learned Civil Judge-V, Lakki Marwat dated 4-1-2010, in favour of plaintiff, was dismissed. Whereas, cross-objection filed by Mst. Noor Nama respondent-plaintiff was accepted and suit of the plaintiff was decreed as a whole.

2. The facts of the case leading to filing of instant petition are that respondent-plaintiff Mst. Noor Nama, filed a pre-eruption suit against the petitioner-defendant qua sale Mutation No.403, dated 14-9-2009. She averred in her plaint that she came to know about the suit sale on 6-12-2009, (Sunday) at 10-00 a.m. at her home, situated in Tor Lawang Khel District, Lakki Marwat, through her son Sherin Jan, in presence of Mutabar Khan son of Abbas Khan, and she immediately performed Talb-i-Muwathibat there and then, in the same meeting. Later on, in confirmation of the first Talb, she sent notice Talb-i-Ishhad on 8-12-2009, through registered letter AD No.1241.

3. The averments of the plaint were controverted by the defendant-vendee in his written statement, which necessitated the framing of issues. The parties were invited to adduce evidence, which they did. On conclusion of trial, suit of the plaintiff-respondent was partially decreed by learned trial Court to the extent of half share of the suit property, as the parties were recorded co-sharers in the Revenue Record. Khan Badshah defendant, filed appeal against the judgment and decree of the trial Court, whereas, plaintiff Mst. Noor Nama filed cross-objection. The learned Appellate Court dismissed the appeal of petitioner while cross-objection of plaintiff-respondent was accepted and her suit was decreed as a whole. Hence, this revision petition.

4. Learned counsel for the petitioner argued that vendee-defendant is recorded as owner in the Revenue Record; that mutation in question has been attested prior to the attestation of inheritance mutation in favour of the plaintiff, so the petitioner has superior right of pre-emption against the plaintiff-respondent; that petitioner has also superior right on the basis of being in possession of the suit property as a mortgagee, as per Revenue Record, and as such, is a land-owner by virtue of section 4(13) of the Land Revenue Act, 1967. He contended that Postman has not been produced by plaintiff-pre-emptor, in compliance with the ratio of Muhammad Bashir and other's case (2007 SCMR 1105) to prove service of notice Taib-i-Ishhad, hence, the impugned judgments are liable to be set aside and the suit be dismissed.

5. Conversely, learned counsel for the respondent contended that Mutation No.404, is inheritance mutation of husband of the plaintiff, though it might have been attested latter in time than suit mutation but plaintiff had become owner, the moment her husband died, so she has got superior right of pre-emption; that although, plaintiff has not produced Postman to prove the service of notice Talb-i-Ishhad, but in view of the judgment of the Hon'ble Supreme Court in case titled, "Behram Khan and others v. Shah Jehan Khan" non-production of Postman, is immaterial and this petition is liable to be dismissed.

6. I have given my anxious consideration to the respective arguments of the learned counsel for the parties and have scanned the record with their assistance.

7. The contention of the learned counsel for the petitioner on the point of superior right of pre-emption is misconceived. Although, sale Mutation No.403, has been attested prior in time than inheritance Mutation No.404, in favour of the plaintiff/respondent, by virtue of which, she became co-owner in the suit-land. But that mutation in favour of the plaintiff is not that of sale, rather is of inheritance of her late husband. Mutation No.404 is not available on the record, from which it may be ascertained that when it was entered, but it is certain that husband of the plaintiff might have died prior to attestation of mutation, which was reported to Patwari Halqa and then was attested. The legal heirs of the deceased become owners in his legacy, the moment their propositus passes away. Attestation of mutation is not a condition precedent for creation of right in the legacy of the propositus. Rather, it is attested to maintain the record up-to-date. In view of the above discussion, the plaintiff was already co-owner in the suit property, when the suit mutation was attested in favour of the defendant-vendee.

8. The contention of the learned counsel for the petitioner that petitioner being sitting in possession of the suit property, as mortgagee, has superior right of pre-emption, by virtue of section 4(13) of the Land Revenue Act, 1967, is also misplaced. For convenience the relevant clause of the ibid section is reproduced herein below:

"Section 4(13).

Land-owner "includes a person to whom a holding has been transferred, or an estate or holding has been let in farm, under this Act, for the recovery of an arrear of Land Revenue of a sum recoverable as such an arrear and any other person who is in possession of an estate or any share portion thereof, or in the enjoyment of any part of the profits of an estate, but does not include a tenant":

9. The bare perusal of clause (13) of section 4 of the Land Revenue Act, 1967, indicates that a person has been qualified, as land-owner, whom a holding has been transferred or let in farm under this Act, for recovery of arrear of Land Revenue and any other person who is in possession of an estate or any share or portion thereof. However, tenants have been excluded from the land-owner. The term "land-owner" used in the said clause is not synonymous with the owner of land, as is evident from the definition of the land-owner. He is only entitled to enjoy, the possession and recover the arrear of Land Revenue, but has no where been vested with right to convey, alienate, mortgage or bequeath the property whereas, owner has all such rights. For the purposes of exercise of superior right of pre-emption, section 6 of the N.-W.F.P. Pre-emption Act, 1987, has provided three classes of the pre-emptors, who have been vested with superior rights, being "Shafi Sharik", "Shafi Khaleet", and "Shafi Jar", in their order of priority. In explanation, Shafi Sharik has been defined as co-owner in the corpus of an undivided immovable property but not the land-owner. Had it been the intention of the legislature to give any right of pre-emption to the and owner, as defined in section 4(13) of the Land Revenue Act, 1967, it could have conveniently been mentioned in explanation of section 6 of the ibid Act. So, whatever is not provided in the Act itself, it cannot be introduced by far-fetched interpretation, which is otherwise illogical that a person sitting in possession as mortgagee should be given equal right of pre-emption, with a co-owner. Thus, the argument of the learned counsel is not tenable and learned Appellate Court has rightly concluded that respondent has a superior right of pre-emption against the petitioner.

10. The moot question in the case is performance of Talb-i-Ishhad, as Talb-i-Muwathibat, has not been seriously questioned by the petitioner. Admittedly, the plaintiff has not examined Postman to prove service of notice Talb-i-Ishhad on the vendee-defendant. In this regard, in Muhammad Bashir and other's case 2007 SCMR 1105, the Hon'ble Supreme Court ruled by scanning the case-law since pre-partition in light of section 13(1)(b) of the Punjab Pre-emption Act (IX of 1991), which is synonymous to section 13 of N.-W.F.P. Pre-emption Act, 1987, read with section 27 of the General Clauses Act (X of 1897) and Article 129(e) of the Qanun-e-Shahadat Order, 1984, and it was once for all settled by their lordships that when service of notice is denied by the addressee by making statement on oath in the Court, in proof of averments of his written statement, it becomes imperative for the pre-emptor to prove service of the registered letter, on the addressee, by examining the Postman, who served the registered letter. In the said case, addressee was served with registered letter, but he refused to accept the same, on which, the Postman made an endorsement on the registered letter about refusal of the addressee. The vendee-defendant denied the service of notice in his written statement as well as Court statement. In that situation, their lordships observed that to prove the denial of the addressee, it was incumbent upon the pre-emptor to examine the Postman, because when the addressee appears in the Court and makes a statement on oath denying receipt of notice, presumption of service under the provision of section 27 of the General Clauses Act, stands rebutted and onus shifts to the party who asserts that notice was served. Same view was reiterated by the honourable Supreme Court, in Bashir Ahmed's case (2011 SCMR 762).

11. In the instant case only Booking Clerk of the Post-Office was examined as P.W.1, who admitted in his cross-examination that he does not know about the service of notice, as he is not the Postman. The main reliance of the respondent is on the judgment of the Hon'ble Supreme Court in Behram Khan's case. To evaluate the legal position in light of the facts, the relevant assertion of the parties in their respective pleadings has become essential in light of these three judgments of the honourable Apex Court.

12. Plaintiff/pre-emptor has pleaded in Para No.3 of her plaint that she sent notice Talb-i-Ishhad to vendee-defendant on 8-12-2009, vide registered Letter No.1241. With reference to this Paragraph, the vendee-defendant in Para No.4, of preliminary objection of his written statement has controverted the stance of the plaintiff by asserting that:

While responding to Para No.3 of the plaint, he stated that:

Both these Paragraphs of the written statement are indicative of the fact that the defendant-vendee has not admitted the receipt of notice. Whereas in Behram Khan's case, it was averred by the vendee-defendant in his written statement with reference to service of notice of Talb-i-Ishhad in the following words:

In this Para, the second sentence is significant, which clearly indicates that vendee-defendant in that case did not deny the receipt of notice, but said that it is illegal and void. Meaning thereby, that, he questioned the legality of the notice, but not its receipt. In the instant case the vendee- defendant has categorically denied the same in his written statement. Likewise, when he recorded his statement in the Court as DW.1, he stated that:

Whereas in Behram Khan's case, it is observed by their lordships in Para No.7 of the judgment that respondents while entering in the witness box through their attorney had not stated a single word in respect of non-production of the notice.

13. Thus in view of these peculiar facts of the case, judgment of the Hon'ble Supreme Court in Behram Khan's case, is not applicable to the facts of the instant case. Rather, case of Muhammad Bashir and other's 2007 SCMR 1105 and Bashir Ahmed's case 2011 SCMR 762, would be attracted. Thus, in view of above discussion, the plaintiff-pre-emptor has failed to prove performance of Talb-i-Ishhad, in accordance with law.

14. The pre-emptor might be clothed with superior right of pre-emption and have proved the performance of Talb-i-Muwathibat, but he/she would be non-suited, if he/she, fails to prove performance of Talb-e-Ishhad. For successful exercise of right of pre-emption, the proof of superior right of pre-emption, performance of Talb-e-Muwathibat and then Talb-e-Ishhad, in their respective chronological order, are sine qua non. If the case of the pre-emptor is deficient of any one of these legal requirements, his/her suit is bound to fail, which is the case of present pre-emptor. The respondent-pre-emptor, although has a superior right of pre-emption and has proved performance of Talb-i-Muwathibat but has failed to prove performance of Talb-i-Ishhad, in accordance with law, so she has to face the legal consequences of dismissal of her suit.

15. For what has been discussed above, both the Courts below have overlooked the non-performance of second mandatory Talb, in light of the ratio of the judgments of the Hon'ble apex Court (supra) Consequently, this revision petition is accepted. Judgments and decrees of both the Courts below are set aside and suit of the plaintiff stands dismissed. Parties are left to bear their own costs. SAK/381/P Revision accepted.