2014 PLP 978 (YLR)

LAL JAN KHATTAK, J.

This civil revision petition is directed against the judgment and decree dated 18-2-2013 of the learned Additional District Judge-II D.I. Khan whereby appeal of the petitioner against the judgment and decree dated 22-7-2011 of the learned Civil Judge-V, D.I.Khan was dismissed.

2. Short facts of the case are that the petitioner filed a pre-emption suit against the respondent for his purchasing land measuring 12 marlas. The suit was contested by the respondent. Parties to the suit led their pro and contra evidence whereafter the learned trial Court vide its judgment and decree dated 22-7-2011 dismissed the petitioner's suit who filed an appeal which was also dismissed vide judgment and decree dated 18-2-2013 by the learned appellate court.

3. Learned counsel for the petitioner contended that the petitioner has proved his case according to the provisions of Khyber Pakhtunkhwa Pre-emption Act, 1987 but the learned two courts below have illegally non-suited him for no cogent and convincing reasons.

4. On the other hand, learned counsel for the respondent defended the judgments and decrees impugned by the petitioner.

5. I have heard learned counsel for the parties and perused the record of the case.

6. Perusal of the record shows that though the petitioner in his court statement as P.W.4 stated that on 18-7-2007 at about 09-00 p.m. Ramzan informed him about the sale transaction on which he declared his right of pre-emption. It is pertinent to mention here that in his statement the pre-emptor has neither given any location of the place where he received information about the sale transaction nor has mentioned the place where he performed his Talb-e-Muwathibat. Not only the above, the petitioner has also failed to depose before the court about the performance of his Talb-e-Ishhad. He has simply stated that on 19th he along with his witnesses came to the petition writer and got scribed notice of Shuffa.

7. In order to succeed in the enforcement of right of pre-emption it is binding on a pre-emptor to perform all the requisite talbs strictly in accordance with law. In case of such failure his right of pre-emption is extinguished. Perusal of the case record depicts that the petitioner has utterly failed in the performance of his talbs as envisaged under section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. Therefore, he was rightly non-suited by the two courts below.

8. Furthermore, prior to the sale transaction of the suit-land, the pre-emptor was approached by the respondent for purchasing the suit-land but on his refusal the respondent thereafter got it through the sale deed. This fact has been confirmed by the vendor who appeared as DW-2 and deposed before the court that on 22-5-2007 he did offer the petitioner to purchase the suit-land but he refused. This witness further deposed that he did not tell Ramzan about the sale of the land. Case of the petitioner is that he was informed by Ramzan about the sale transaction. Ramzan deposed before the court that he was told by the vendor about the sale transaction. Evidence of DW-2 who is vendor contradicts the testimony of Ramzan which shows that he is not a truthful witness and as such his evidence cannot be relied upon.

9. After assessing the aforesaid evidence both the courts below rightly came to the conclusion that the petitioner has not exercised the requisite talbs in accordance with law and resultantly he was not non-suited. The judgments and decrees of the courts below are based on correct legal appreciation of the facts and law on the subject. I do not see any illegality in the judgments and decrees impugned by the petitioner. The revision petition being bereft of any merit is hereby dismissed. JJK/575/P Petition dismissed.