1998 PLP 2227 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

This appeal as of right is filed against the judgment of a learned Division Bench of the Peshawar High Court, dated 28-2-1995.

2. The respondents/vendees purchased property bearing Survey Nos. T.1633, T.1638 and T.1640 situated in Mohallah Bisat Gut Hassan, Shaheen Bazar, Peshawar city, hereinafter to be referred as 'the suit property' through a registered sale deed dated 28-5-1990. The appellant/plaintiff instituted suit No.372/1 against the respondents before the Civil Judge, Ist class, Peshawar, claiming right of preemption on the ground, of contiguity of the property of the appellant with the suit property. The trial Court decreed the suit filed by the appellant but on appeal a learned Division Bench of the Peshawar High Court reversed the judgment and decree of the trial Court and dismissed the suit filed by the appellant holding that the appellant failed to prove Talab-e-Muwathibat' in accordance with section 13(1) of the N.-W.F.P. Pre-emption Act 1987 (hereinafter to be called as 'the Act'). We have heard the learned counsel for the parties at length and are of the view that no case for interference with the judgment and decree passed by the High Court is trade out.

3. It is a well-settled law that the pre-emptor, in order to succeed in a suit for pre-emption must establish that he made the three demands, namely, Talab-e-Muwathibat, Talab-e-Ishhad and Talab-e-Khusamat in accordance with the law. Tala'b-e-Muwathibat, the first demand is usually described as the! jumping demand. Section 13(1) of the Act which applied to the present case, defines Talab-e-Muwathibat as immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his/her intention to exercise the right of pre-emption. The first demand is followed by Talab-e-Ishhad, the second demand, by the pre-emptor which requires sending of a registered A.D. notice in writing attested by two truthful witnesses by the pre emptor to the vendee or vendees as soon as possible after his first demand but not later than two weeks from the date the pre-emptor became aware of the sale confirming his/her intention to exercise the right of pre-emption. Thereafter, the pre-emptor exercises the third Talab known as Talab-e-Khusamat by filing the suit before a Court of competent jurisdiction to enforce his right of pre-emption.

4. In the case before us, the learned Judges of the High Court came to the conclusion that the appellant failea to establish the first demand (Talab-e Muwathibat). The learned counsel for the appellant contends that the attorney of appellant unequivocally stated in his evidence that as soon as the appellant came to know of the sale, she declared her right of pre-emption in respect of the suit property. In the case of Government of N.-W.F.P, v. Said Kamal Shah (PLD 1986 SC 360), the Shariat Appellate Bench laid down the manner of exercise of Talab-e-Muwathibat' as follows:-- The above passage was quoted with approval in the case of Safia Begum v. Ibrahim (PLD 1989 SC 314). In the light of the abovestated legal position, we now proceed to examine the evidence of the appellant regarding "Talab-e Muwathibat'. The appellant herself has not appeared in the witness box. She examined her husband/attorney in support of the claim in the suit. The attorney of the appellant while referring to the "Talab-e-Muwathibat' made by appellant, stated as follows:-- The appellant in the notice sent to respondents through her advocate on 14-5-1990 expressing "Talab-e-Ishhad' made the following assertion:--

5. It is significant that in the notice dated 14-5-1990, sent by the advocate of appellant purporting to be 'Talab-e-Ishhad', the appellant claimed to have learned about the sale of the suit property on 2-5-1990 while her attorney in the Court on oath stated that she came to know of the sale on 4-5-1990. Apart from it in the notice dated 14-5-1990 sent by the counsel of the appellant to confirm the right of pre-emption claimed by the appellant (Talabe-e-Ishhad), no mention was made about the Talab-e-Muwathibat exercised by the appellant. On the contrary, it was stated that when the appellant came to know of the sale, she approached the office of Registrar to obtain the copy of the sale-deed and then called upon the respondent through 'Jirga' people to convey the suit property to the appellant on payment of true price of the property. The appellant neither in her notice of Talab-e-Ishhad nor in the evidence of her attorney before the Court, disclosed the source of her information regarding sale of the suit property nor she disclosed the names of the persons before whom she declared the intention to purchase the property (Talabe-e-Muwathibat). In the absence of these details it was not possible for the Courts below to determine whether she made "Talab-e-Muwathibat" in accordance with the law.

6. The High Court in the present case was the first Appellate Court and therefore, all questions of law and facts were open to be agitated before it. The 1st Appellate Court being the final Court, in so far the determination of the questions of facts in the case was concerned, the finding recorded by it in this I behalf is binding on this Court unless it is shown that finding was the result of misreading of the evidence on record or has been produced as a result of non -consideration of some material piece of evidence on record. After going through the evidence on record with the assistance of learned counsel for the parties, we are of the view that the High Court rightly reversed the finding of the Trial Court on the issue of "Talab-e-Muwathibat" and reached the conclusion that the g appellant failed to establish "Talab-e-Muwathibat" in accordance with the provisions of section 13(1) of the Act. As the appellant failed to prove that she made ' Talab-e-Muwathibat' as required under the law, she was not entitled to any decree in the suit.

7. No case for interference with the judgment of High Court is made out. The appeal is, accordingly, dismissed but there will be no order as to costs. M.B.A./S-88/S Appeal dismissed.