1998 PLP 1756 (CLC)

(6) Whether the amount of Rs.500 recorded in the impugned mutation as the sale consideration of the suit property has been fixed in good faith and actually paid? (7) What is the market value of the suit property? (8) Whether the suit of the rival pre‑emptor is Benami? (9) Which of the pre‑emptor is entitled to the decree as prayed for and to what extent? (10) Relief.

4. After recording the evidence of the parties, which they wished to produce, the trial Court by its judgment recorded on 14‑6‑1995 passed a decree in favour of the respondent (plaintiff) and dismissed the suit of the rival pre emptor.

5. Aggrieved by the said verdict of the trial Court only the petitioner (defendant) challenged its findings before the lower Appellate Court. The lower Appellate Court (Syed Afsar Shah, Additional District Judge, Hangu) by its judgment dated 30‑1‑1996 dismissed the appeal. Hence this revision petition.

6. Mian Muhammad Younis Shah, Advocate, learned counsel for the petitioner (defendant) and Haji Muhammad Zahir Shah assisted by Ms. Zaibus Sabah, Advocate, learned counsel for the respondents (plaintiffs) present and heard. Record of the case perused.

7. A plain reading of the plaint would show that the respondent (plaintiff) has failed to mention as to when and on what date he had come to know about the suit transaction and that he had immediately thereafter made the jumping demand (Talb‑i‑Muwathibat). For the sake of convenience the relevant portion of the plaint, with regard to "Talb‑i‑Muwathibat", is reproduced as under:

8. Similarly when he, the respondent (plaintiff) appeared in the trial Court and was examined as P.W.2, he stated on oath that it was Haji Khan Sher (P.W.5) who had informed him in "Sarai Mosque" that the property in question had been sold to Wali Mat Khan petitioner (defendant) and that he made the "Talb‑i‑Muwathibat" then and there. However, it may be mentioned here, that the plaintiff (respondent) did not mention as to when and on what date/time he was informed by Haji Khan Sher (P.W.5) about the sale transaction.

9. Haji Khan Sher also appeared in the trial Court and was examined as P.W.5. He stated that after having received the information regarding the sale of the suit land to the petitioner (defendant) he met the plaintiff (respondent) in a Mosque at Hangu and informed him about the sale transaction. He further stated that respondent (plaintiff] at once declared that he would pre‑empt the transaction by filing pre‑emption suit against the petitioner (defendant).

10. In his cross‑examination P.W.5 admitted that sufficient number of cases were pending between him and the petitioner (defendant). He too failed to mention about the date and time when he came to know about the sale of the land to petitioner (defendant). Additionally he also failed to mention the time/date on which he informed the respondent (plaintiff) about the suit transaction.

11. The burden of proving that "Talb‑i‑Muwathibat" was made immediately after acquiring the knowledge about the sale of the suit land rested entirely on the respondent (plaintiff). In the case in hand the respondent (plaintiff) has miserably failed to discharge this burden. He has failed to mention the date and the time when he came to know about the suit transaction and the time/date on which "Talb‑i‑Muwathibat" was made by him in the body of the plaint, as was held by his Lordship Mr. Justice Sardar Muhammad Raza Khan of this Court in case Shah Hussain etc. v. Khani Zaman (PLD 1996 Pesh. 73). It was held by his Lordship as under: "S.13‑‑Factum of Talb‑i‑Muwathibat" with required details, not alleged in plaint‑‑‑Such factum was also not proved by evidence ‑‑‑Effect‑‑ Question of Talb‑i‑Muwathibat being pure question of fact, same was bound to be mentioned in pleadings‑‑‑Assertion in plaint showed that Talb‑i‑Muwathibat and Talb‑i‑Ishhad were performed on one and the same day‑‑‑Plaintiff in his evidence, however, set up different case to the effect that Talb‑i‑Muwathibat was exercised two days prior to Talb i‑Ishhad‑‑‑No evidence could be led on any question of fact which was contrary to that alleged in plaint‑‑‑Provision of O.VI, C.P.C. specifically require that all questions of fact be mentioned in pleadings, leaving aside evidence‑‑‑Question of Talb‑i‑Muwathibat with details thereof, being most important must be mentioned with details‑‑ Question of Talb‑i‑Muwathibat was important for it was only the factum of Talb‑i‑Muwathibat that activates right of pre‑emotion and without such Talb even the right of pre‑emption does not come into existence‑‑‑Details of Talb‑i‑Muwathibat were important for in the light of such details regarding time and place of Talb‑i‑Muwathibat, period of limitation for Talb‑i‑Ishhad could be calculated ‑‑‑Talb‑i‑Muwathibat was neither distinctly alleged nor proved in the light of pleadings‑‑ Talb‑i‑Muwathibat unless proved, no right of pre‑emption would come into activation‑‑‑Courts below had wrongly appreciated evidence and had fallen into material irregularity in decreeing plaintiff's suit for pre emption ‑‑‑Findings of Courts below were set aside and plaintiff's suit dismissed in circumstances."

12. Similarly the plaintiff (respondent) had also failed to mention about the time/date when he made the "Talb‑i‑Muwathibat" in his evidence produced in the Trial Court as was held by the Supreme Court in case Amir Jan and others v. Haji Ghulam Muhammad (PLD 1997 Supreme Court 883). The relevant portion of the judgment is reproduced for the sake of convenience:‑‑

"(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑ ‑‑‑S.13‑‑‑Civil Procedure Code (V of 1908), O. VI, R.2‑‑‑Constitution of Pakistan (1973), Art. 195(3)‑‑‑Suit for pre‑emption ‑‑‑Fulfilment of requirement of Talbs by plaintiffs‑‑‑Specific issue was framed with regard to fulfilment of Talbs on which both parties led evidence‑‑‑Trial Court decided such issue on appraisal of evidence in favour of plaintiff‑‑‑Such finding was maintained by First Appellate Court and the High Court on reappraisal of evidence‑‑‑Question whether requirements of S.13 of the Act were fulfilled being pure question of fact, concurrent findings on appraisal of evidence by Court below including the High Court could not be disturbed merely on the ground that details of Talb‑i‑Muwathibat had not been stated in plaint‑‑ Requirement of law would be fully met if it was alleged in pleadings that after having corn to know of sale, pre‑emptor declared his intention to pre‑empt such sale‑‑‑Material fact must be proved at trial through evidence on issue framed in that regard‑‑‑Evidence to be led need not be alleged in plaint‑‑‑Plaintiff had alleged Talb‑i‑Muwathibat in his plaint, issue therein had been framed and evidence was led in proof thereof‑‑ Pleadings, however, should be liberally construed‑‑‑Even if some fact was not stated with clarity and in detail in pleadings, Court was emyowered to give findine on such issue in the light of evidence led‑‑ Courts below had concurrently given findings on question of fact that Talb‑i‑Muwathibat was made and provisions of S.13 of the Act had been complied with in letter and spirit‑‑‑Such finding was sustainable in the light of evidence in absence of any material irregularity and illegality‑‑‑Leave refused in circumstances. Shah Hussain and 9 others. v. Khani Zaman PLD 1996 Peshawar 73. ref."

13. In the circumstances detailed above, I am of the view that there is no evidence to show that "Talb‑i‑Muwathibat" was made in accordance with the provisions of section 13 of the N.‑W.F.P. Pre‑emption Act, 1987 and accordingly the trial Court committed illegality in decreeing the suit of the respondent (plaintiff). Similarly the lower Appellate Court was not justified, in the circumstances, to have dismissed the appeal filed by the petitioner (defendant).

14. Resultantly this revision petition is accepted and the judgments and decrees of the lower forums are set aside and the suit of the respondent (plaintiff) is dismissed with no order as to costs. H. B. T./86/P Revision accepted.