2004 PLP 115 (YLR)

Haji Arbab Muhammad Usman Khan for Respondents. Date of hearing: 29th May, 2003. Saeedullah and three others respondents/plaintiffs filed suit against Sahib Rasool petitioner/defendant for possession through pre‑emption of land measuring 4 Kanals, 10 Marlas comprising Khasra No.3690 situated at Mauza Nawagai District Buner. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 27‑3‑2001. Feeling aggrieved with the said judgment and decree, respondent filed appeal in the Court of learned, District. Judge/Zilla Qazi, Buner, which was allowed vide judgment and decree dated 6‑11‑2001 and the judgment and decree of the trial Court was set aside. Being not satisfied with the judgment and decree of the Appellate Court the petitioner has filed revision petition in hand.

2. Mr. Muhammad Nawaz Khan, the learned counsel representing the petitioner argued that the respondents had failed to make Talbs in accordance with law. Notice of Talb‑i‑Ishhad Exh.P.W.‑3/2 was served by Saeedullah only and the rest of the respondents /plaintiffs did not serve any notice of Talb‑i‑Ishhad upon the petitioner. Moreover, at the time when the said notice was issued, Saeedullah was not in possession of any power‑of‑attorney on behalf of other respondents.

3. It was also argued that only one witness namely Muhammad Jehan P.W.‑4 was produced to prove Talb‑i‑Muwathibat as well as Talb‑i‑Ishhad, the second witness namely Ziarat Wali though was available with the plaintiff and was very much present when the statement of Muhammad Jehan was recorded on 23‑5‑2000 but his statement was not recorded for reasons best known to respondents /plaintiffs. Reliance in this regard was placed on Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235.

4. It was further argued that the respondents/plaintiffs were not owners of the property which was adjacent/contiguous to the suit‑property and they had no superior right of pre‑emption because the said property (claimed by respondents/plaintiffs) was subject to pre emption and the same was dismissed in their favour on 2‑10‑2001, whereas the decree in the suit in hand was passed on 27‑3‑2001 by the learned trial Court.

5. On the other hand Mr. Haji Arbab Muhammad Usman Khan, the learned counsel representing the respondents argued that the petitioner had not only acknowledged the receipt of notice of Talb i‑Ishhad Exh.P.W.‑3/2 but had also given its reply to the respondents wherein no objection was raised that the received notice was copy and not original, therefore, the petitioner at this revisional stage cannot take up the said objection.

6. It was also argued that notice Talb i‑Ishhad Exh.P.W.‑3/2 has not only been signed by Saeedullah but by two truthful witnesses, if Saeedullah had no power‑of -attorney on behalf of other three plaintiffs, therefore, the notice to Saeedullah was in accordance with law.

7. It was further argued that the respondents/plaintiffs had purchased the contiguous property vide registered Sale Deed No.9 dated 2‑1‑1995. Ziarat Wali had filed suit for pre‑emption against the respondents/plaintiffs which suit was dismissed vide judgment and decree dated 2‑10‑2001. The respondents/plaintiffs were owners of the property in dispute on the basis of said sale‑deed, therefore, they have every right to pre‑empt the sale.

8. I have heard the learned counsel for the parties and perused the record.

9. The argument of the learned counsel that only Saeedullah served notice of Talb‑i‑Ishhad Exh.P.W. 2/2 upon the petitioner and rest of the respondents/plaintiffs did not serve any notice of Talb‑i‑Ishhad upon the petitioner, therefore, the Talb‑i‑Ishhad was not made in accordance with law has a force in it. Perusal of the plaint shows that the suit was filed by M/s. Saeedullah, Zarfarosh, Sher Muhammad and Jwed Iqbal sons of Sadiq Shah against Sahib Rasool petitioner/ defendant. Only one notice of Talb‑i‑Ishhad was served upon the petitioner/defendant by Saeedullah. One of the respondents/ plaintiffs namely Saeeduilah appeared as his own witness and as attorney of other plaintiffs. In examination‑in‑chief he stated:‑‑ The perusal of notice of Talb‑i -Ishhad Exh.P.W. 3/2 shows that the same was served by Saeedullah as attorney of his other brothers also through his counsel on 17‑6‑1998. The said notice was signed by Saeedullah and two witnesses namely Irshad Ali and Muhammad Jehan. The question that arises at this stage is as to whether Saeedullah had been authorised by his brothers through valid power‑of‑attorney to serve notice Talbri‑Ishhad on their behalf upon the petitioner/defendant, answer to this question is in negative. Special power -of‑attorney, in this case was given by Zarfarosh, Sher Muhammad and Javed Iqbal in favour of Saeedullah on 26‑6‑1998, which was placed on record as Exh. P.W.2/1, but the notice of Talb‑i -Ishhad Exh.P.W. 3/2 as mentioned above, was served on petitioner/defendant on 17‑6‑1998 i.e. much before the execution of power‑of‑attorney in favour of Saeedullah by his three brothers. On 17‑6‑1998, when the notice was served by Saeedullah, he was not authorised by his three brothers. A similar question came up for hearing before this Court in‑Muhammad Fazal Parach v. Mst. Fauzia Begum PLD 2003 Peshawar 40 in which, it was held that if attorney was not authorised on the day. when Talb‑i -Ishhad and Talb‑i‑Khushamat were made, suit filed by such attorney was not maintainable.

10. It was also held that if an attorney was not authorised in clear words to do ‑particular act, then the same cannot be preformed by attorney, Reliance in this regard was placed on Muhammad Mehrban v. Sardar‑ud‑Din and another 1995 CLC 1541, Muhammad Aslant and another v. Mst. Inayat Bibi and 4 others 1995 CLC 1572, Eagle Star Insurance Co. Ltd. v. Usman Sons Ltd. PLD 1969 Karachi 123 and Murid Hussain and others Muhammad Sharif through his Legal Heirs 1996 CLC 161, therefore, the notice of Talb‑i‑Ishhad Exh.P.W. 3/2 had been served only by Saeedullah and not by other three plaintiffs. The said notice was therefore, not in accordance with the requirements of section 13(3) of N.‑W.F.P. Pre‑emption Act, 1987. When Talb‑i‑Ishhad was not made in accordance with the requirements of law, the right to file suit for pre‑emption had extinguished.

11. The argument of the learned counsel for the petitioner that the respondents had placed on record copy of notice of Talb‑i‑Ishhad Exh.P.W. 2/3 which was not admissible has a force in it. 7 he contents of the notice of Talb‑i Zshhad Exh.P.W. 2/3 show that photostat copy of notice Talb‑i‑Ishhad was served upon the petitioner and the learned counsel for the respondents/ plaintiffs had kept the original notice with him. Last lines of the notice are:‑‑ Not only the petitioner, was served with photostat copy of the notice but photo copy of the said notice was placed on record as Exh.P.W. 3/2. Original notice was not even produced in the Court for its perusal. A similar proposition came up for hearing before this Court in Hikmat Ali Shah v. Mst. Mira 2000 CLC 336 in which it was held:‑‑ "Clearly, the requirement of section 13(3) of the N.‑W.F.P. Pre‑emption Act, 1987 is that the vendee should be served with original notice of Talb‑i‑Ishhad, which, sadly, in the instant case is lacking as the plaintiff retained the original notice with himself and sent photo copy of the same to the vendee, photo copy cannot be treated as original and this is clear from the illustration (a) of Article 74 of the Qanun‑e‑Shahadat which expressly states that a photo copy is secondary evidence of its contents. This provision of law clearly suggests that photo copy of a document cannot take the place of a primary evidence and it is simply secondary evidence. Article 165 of the Qanun‑e‑Shahadat does not benefit the petitioner for short and simple reason that under this provision, the Court has discretion to allow production of any evidence that may have become available because of modern device or technique while in the instant case no such permission was granted and indeed it could not be granted as photo copy is secondary evidence of its Contents." A similar view was taken in Civil Revision No‑346 of 2003 (Suleman Gul v. Mir Hamad), decided on 20‑5‑2003 by this Court.

12. The argument of the learned counsel for the petitioner that only one witness of Talb‑i‑Muwathibat as well as Talb‑i‑Ishhad was produced and second witness though available was with held therefore, the suit of the respondents/ plaintiffs required dismissal also has a force in it. The requirement of subsection (3) of section 13 of the N.‑W.F.P. Pre‑emption Act is that notice of Talb‑i‑Ishhad is to be attested by two truthful witnesses. It is the duty of pre‑emptor to prove to the satisfaction of the trial Court/Qazi that Talb‑I-Ishhad was made in presence of truthful witnesses. This requirement of law is statutory. None of the witnesses of Talb i‑Ishhad could be dispensed with. Non production of second witness of notice Talb‑i‑Ishhad was fatal to the case of pre‑emptor. Similar proposition came up for hearing in Mst. Umatul Latif v. Mst. Zainab Bibi 2001 MLD 355 in which it was held:‑‑ "Above all, to my mind the only test available in our system of jurisprudence and the procedure applicable to the proceedings of a Court to judge the veracity of a witness is that he should, enter the witness‑box, state whatever he has to say on oath and then subject himself to cross‑examination which constitutes a complete statement made by a witness and enables a Court to judge as to whether he is truthful or otherwise. When the law insists that the Talbs had to be made in presence of two truthful witnesses, the non‑production of the second witness, particularly in the circumstances of the present case which can be gleaned from the evidence I have referred to above, is fatal to the case of the petitioner. "

13. Similar view was taken in Shahbaz Aslam v: Zaman Khan and another 1998 CLC 393.

14. Another fact which goes against the respondents /plaintiffs in this case is that second witness of notice of Talb‑i‑Ishhad namely Ziarat Wali was available outside the Court on 23‑5‑2000; when statement of Muhammad Jehan, witness of Talb‑i‑Ishhad was being recorded, but statement of Ziarat Wali was neither recorded by the respondents/plaintiffs nor any explanation was given by plaintiffs as to why they withheld the said witness from examining him. The legal presumption under Article 129(g) of Qanun‑e‑Shahadat Order, 1984 would be that in case he (Ziarat Wali) had been produced, then his deposition must have been against the plaintiffs. Similar question came up for hearing before Appellate Bench of august Supreme Court of Pakistan in Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 in which it was held:‑‑ "Although it is not necessary to mention the name of the person in the plaint in whose presence Talb i‑Muwathibat was made, but in this case the plaintiff admitted in his cross‑examination that he had made Talb in presence of Tayyab Khan but he failed to produce him as his witness. It was also not clarified/ explained by, the plaintiff in his statement as to why Tayyab Khan could not be produced as it was not stated that he was either won over by the other side or that he had turned hostile towards him for some other reasons or that out of fear of the defendant or for some other consideration the defendant was successful‑to prevent him to depose in favour of the plaintiff. Article 129(g) of Qanun‑e‑Shahadat reads:‑‑ 'That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.' Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him. "

15. The argument of the learned counsel for the petitioner that at the time of filing of suit, the respondents/plaintiffs were not owners of the property on the basis of which they claimed contiguity and pre‑emption has no force. The perusal of the record shows that the respondents purchased their land vide registered Sale Deed No.9 dated 2‑1‑1995, therefore, they had become owner of the land on the basis, of which they claimed contiguity on 12‑1‑1995. If Ziarat Wali had filed any suit of pre‑emption against the respondents/ plaintiffs, the filing of the suit cannot take away their ownership rights. Moreover, the said suit was dismissed vide judgment and decree dated 2‑10‑2002. The off‑shoot of the above discussion is that the respondents/plaintiffs did not perform Talb‑i‑Ishhad as required by subsection (3) of section 13 of N.‑W.F.P. Pre‑emption Act. Their right to file pre‑emption suit had therefore, I extinguished. The learned trial Court had properly appreciated the evidence on record as well as legal position but the learned Appellate Court failed to appreciate the same. I, therefore, allow the revision petition in hand, set aside the judgment and decree passed by the learned Appellate Court and restore that of the trial Court. There shall be no orders as to costs. M.H./939/P Revision allowed.