2016 PLP 105 (CLCN)

MUHAMMAD YOUNIS THAHEEM, J.

The petitioner has called in question the judgment and decree dated 20.07.2011 passed by learned District Judge, Karak, whereby appeal against the judgment and decree dated 25.06.2010 of learned Civil Judge-I, Karak, was concurrently dismissed.

2. Brief facts of the case are that the petitioner/plaintiff instituted a pre-emption suit No.49/1 in the court of learned Senior Civil Judge, Karak, which was entrusted to the learned Civil Judge-I, Karak qua mutation No.10992 attested on 30.10.2008. The petitioner/ plaintiff averred in his plaint that he on 16.10.2010 was present at patwar Khana, when suit mutation was called for attestation and for the purpose of said attestation of mutation the statements were recorded, filed an application to the Revenue Officer with respect to exercise of his right of pre-emption. Thereafter, the petitioner/plaintiff on 30.10.2008 at 11.30 hours, in his shop, in presence of Abdul Wallah and his son, got knowledge about attestation of suit mutation through Sohrab Khan, he there and then performed Talb-e-Muwathibat in their presence. Then on 03.11.2008 sent notice Talb-e-Ishhad attested by two truthful witnesses through registered AD. The petitioner claims his superior right over the suit land being contiguous owner and having other rights attached with the suit property while the respondents/ defendants have no such right and is stranger.

3. The defendants were summoned, who after appearance contested the suit by submitting their written statement, wherein they raised so many legal as well as factual objections. The learned trial court on divergent pleadings of the parties framed as many as eight issues including relief which are following.

1. Whether the plaintiff has got cause of action?

2. Whether plaintiff suit is within time?

3. Whether the plaintiff's suit is wrong baseless against the facts?

4. Whether the plaintiff has fulfilled the requirements of the talbs in accordance with law?

5. Whether the plaintiff has got superior right of pre-emption?

6. What is the market value of the suit property?

7. Whether the plaintiff is entitled to the decree as prayed for?

8. Relief.

4. The parties adduced pro and contra evidence in support of their respective stance. On conclusion of evidence and hearing arguments from both the sides the learned trial court vide judgment and decree dated 25.06.2010 dismissed the suit.

5. The petitioner being feeling aggrieved from the above said Judgment and decree dated 25.06.2010 filed Regular Civil Appeal before the learned Appellate Court of learned District Judge, Karak but was dismissed vide impugned judgment and decree dated 20.07.2011. Hence, the instant revision petition.

6. Valuable arguments of learned counsel for the parties heard and record perused.

7. It appears that to prove performance of Talb-e-Muwathibat as well a Talb-e-Ishhad, plaintiff did not record his own statement before the court. Rather statement of Misal Badshah son of petitioner/plaintiff was recorded as his attorney.

8. The attorney, while recording his statement did not offer any disability of the plaintiff from appearance before the court to give evidence, except old age and sick, but has not produced any medical prescription, in this regard. Section 14 of the Khyber Pakhtunkhwa Pre- emption Act, 1987, though provides exception, but that is about making of demand, which is reproduced herein below:- "

14. Demand by the guardian or agent. Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf."

9. The very language employed in above cited section provides in unambiguous and unequivocal terms that demands may be made by the agent, where the pre- emptor himself is unable to make the same. By this section firstly pre-emptor is bound to explain his inability and secondly it is demand which is to be made by agent and then be proved by the same person in the Court. It is nowhere provided in the law, that demand be made by the pre-emptor and it be proved later on by his attorney by deposing on his behalf. Particularly Talb-e-Muwathibat, being purely an act of personal nature; which could only be described amicably by party itself and not person holding power of attorney on his behalf. So making of Talb-e-Muwathibat is a very important question of fact in pre-emption cases, which is required to be proved by himself by making statement on oath and offering himself for cross-examination. When neither the demand has been made by attorney, nor pre-emptor has shown his inability to appear before the court, it is safely concluded that pre- emptor has failed to prove performance of Talb-e -Muwathibat, as required by law. In this respect reliance is placed on case titled "Dilshad Begum v. Mst. Nisar Akhter" (2012 SCMR 1106), wherein it is held that: It has time and again been held by this Court that the right to pre-empt is a personal right. In Abdul Qayyum v. Muhammad Sadiq (2007 SCMR 957) this Court at page 960 held as follows:- "The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-i-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be a substitute of the pre-emptor under the law, therefore, notwithstanding the provision of section 14 of Punjab Pre-emption Act, 1991 according to which if a person is unable to make demand under section 13 (ibid), his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-i- Muwathibat in person and secondly, this exception appears to have been created to meet a situation in which either the pre-emptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-i-Muwathibat himself and appear in Court in person."

7. The afore-referred view was reiterated in Hassan Bano v. Wali-ur-Rehman (2007 SCMR 1344).

8. There is yet another aspect. The best evidence with regard to performance of Talb-e- Muwathibat is the person who makes such a talb. The effect of non-production of best evidence is provided in section 129 of the Qanun-e-Shahadat Order, 1984, which reads as follows:- "

129. Court may presume existence of certain facts. Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume-- (a) that man who is in possession of stolen goods soon after the theft is either the theif or has received the goods knowing them to be stolen, unless he can account for his possession; (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars; (c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; (d) that a thing or state of things which has been shown for be in existence within a period shorter than that which such things or states of things usually cease to exist, is still to existence; (e) the judicial and official acts have been regularity performed; (f) that the common course of business has been followed in particular cases; (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it (Emphasis is supplied); (h) that, if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) that when a document creating an obligation is in the hands of the obliger, the obligation has been discharged."

9. The case of the respondent/plaintiff would be squarely hit by Article 129(g) of the Qanun-e -Shahadat Order referred to above as without assigning any reason, the best evidence was withheld and not produced. In Abdullah Khan v. Nisar Muhammad Khan and others (PLD 1959 (W.P) Peshawar 81), a Division Bench of the said Court observed as follows:-- "It is, therefore, positively proved that so far as Fateh Muhammad Khan is concerned, he purchased the property with the notice that it had already been agreed to be sold to the plaintiffs. So far as the other defendant-appellants, are concerned, none of them appeared in the witness-box except Mr. Afzal Khan. It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. By non-appearance, therefore, the defendant-appellants except Mir Afzal Khan failed to discharge the onus or shift the onus on to the plaintiffs." It is further held that:

11. There is no cavil to the proposition that a pre-emptor can be represented through an attorney but there has to be valid reasons for non-appearance which in the instant case are lacking. The learned High Court condoned this infirmity and reversed the concurrent judgments on the ground that though educated but she could not "afford and endure the agonies of appearing as a witness in civil matters". Little did the High Court realize that it is in evidence that the power of attorney was given by her in favour P.W.7 Habib-ur-Rehman in the premises of the tehsil court. If she could appear at tehsil level, what prevented her to appear before the trial Court or having herself examined through a commission in terms of section 132 of the Civil Procedure Code."

10. It is requirement of law under section 13 of Khyber Pakhtunkhwa Pre-emption Act, that after making Talb-e-Muwathibat intending pre-emptor shall affirm his intention not only in pleading but also has to prove this fact through producing evidence and in the instant case pre-emptor has not complied with this legal requirement in accordance with law, as neither he stated in his plaint that he in confirmation of intention to exercise his right of pre-emption had sent notice Talb-e-Ishhad nor he or his marginal witnesses alleged this fact in their statements recorded before the Court. In this respect verdict laid down by the honourable Supreme Court in case titled "Muhammad Zahid v. Dr. Muhammad Ali" (PLD 2014 Supreme Court 488), wherein it is held that: "

7. The respondent stated in his evidence recorded in the court that he signed and sent notice to the vendee but he did not state anywhere that he confirmed his intention to exercise his right of pre-emption. Talb-i-Ishhad which, in fact, is confirmation of intention to exercise a right of pre-emption cannot be held to have been established by mere signing and sending of notice. The witnesses examined in the Court, too, did not state anything regarding confirmation of such intention." (underline for emphasis)

11. The vendee/defendants have denied receipt of notice Talb-e-Ishhad in his statement by his attorney on oath before the court. In view of law laid down by the apex court in cases "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) and "Basheer Ahmed v. Ghulam Rasool" (2011 SCMR 762), the pre-emptor is required to examine postman to prove service of notice Talb-e-Ishhad, when the same is denied by the vendees/defendants in their statement on oath but he did not produce the same and as such he has failed to comply with this legal requirement, so he has not proved performance of Talb-e-Ishhad in accordance with law.

12. It need no emphasis that for successful exercise of right of pre-emption, the proof of performance of Talb-e-Muwathibat and then Talb-e-Ishhad, in their respective chronological order, is essential. Any deficiency in these legal requirements will render a pre-emption suit liable to an outright dismissal. In the instant case, the plaintiff has failed to prove Talb-e-Muwathibat and delivery of notice Talb-e-Ishhad in accordance with the provisions of section 13 of the Khyber Pakhtunkhwa Pre- emption Act, 1987.

13. For what has been discussed above, as petitioner/plaintiff has failed to prove performance of Talb-e-Muwathibat as well as Talb-e-Ish'had in accordance with law, both the Courts below have rightly non-suited the petitioner after properly appreciating evidence. There is no misreading or non-reading of evidence or any material irregularity or illegality, which may warrant interference of this court in current finding of facts recorded by both the courts below. Hence, finding no merits, this petition is dismissed. No order as to costs. SL/356/P Petition dismissed.