2014 PLP 2212 (YLR)

MUHAMMAD DAUD KHAN, J.--Through the instant revision petition, the petitioner/defendant has called in question the judgment and decree dated 17-7-2009 passed by learned Additional District Judge-I, Lakki Marwat vide which appeal of respondent/plaintiff, against the judgment and decree dated 2-4-2008 of learned Civil Judge-V, Lakki Marwat was accepted, resultantly, his suit was decreed.

2. Succinct but necessary facts giving rise to the instant revision petition are that the respondent/plaintiff instituted a suit for possession through exercise of right of pre-emption over the landed property, detailed in the head note of the plaint, purchased by defendant/vendee vide sale Mutation No.1757 dated 23-7-2001. According to the averment made in plaint, the respondent/ plaintiff came to know about the sale transaction on 27-7-2001 at Adda High Way Gandi Khan Khel at 10.00 a.m. in the presence of the witnesses Muhammad Fayaz and Muhammad Riaz and there and then declared his intention to pre-empt the transaction and thereafter on 28-7-2001 sent written notice to the vendee/ defendant. In the notice of Talb-e-Ishhad respondent/ plaintiff also mentioned the same story that on 27-7-2001 at Adda Highway Gandi Khan Khel at 10.00 a.m. in presence of witnesses, Muhammad Fayaz, and Muhammad Riaz, the respondent/plaintiff got knowledge of impugned sale.

3. The petitioner/defendant was summoned who appeared and contested the suit by filing his written statement raising therein various legal and factual objections. The divergent pleadings of the parties were reduced into framing of ten issues. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-IV, Lakki Marwat dismissed the suit of respondent/ plaintiff vide judgment and decree dated 2-4-2008.

4. Dissatisfied with the judgment and decree dated 2-4-2008, the respondent/ plaintiff filed appeal. The learned Additional District Judge-I, Lakki Marwat vide judgment and decree dated 17-7-2009, while accepting the appeal of respondent/ plaintiff, decreed the suit. Hence, the instant revision petition.

5. Mr. Zaffar Iqbal, the learned counsel for the petitioner/ defendant contended that the respondent/plaintiff is not contiguous owner of the suit land, therefore, the learned appellate court erred in law by decreeing his suit whereas learned trial Court has rightly non-suited him having no right of pre-emption. He further contended that respondent/plaintiff also failed to prove the performance of Talb-e-Muwathibat, as he has not mentioned the name of informer in the plaint, which is mandatory to prove the performance of Talb-e-Muwathibat.

6. Conversely, Mr. Abdul Qayum Qureshi learned counsel for the respondent/ plaintiff vehemently opposed the arguments advanced by learned counsel for the petitioner/defendant and contended that mentioning of the name of informer in the plaint is not necessary, thus learned appellate court has rightly decreed the suit in his favour, while non-suiting the respondent/plaintiff on this ground alone by the learned trial Court is not warranted by the law. He further contended that the learned appellate court has rightly appreciated the evidence in its true perspective and decreed the suit in his favour, which needs no interference.

7. I have considered the arguments of learned counsel for the parties and perused the record minutely.

8. Perusal of the record reveals that in Para-3 of the plaint, the plaintiff averred that he got knowledge of the transaction on 27-7-2001 at Adda Highway Gandi Khan Khel at 10.00 a.m. in presence of Muhammad Fayaz and Muhammad Riaz. While appearing in the trial Court, the respondent/plaintiff stated that he got knowledge of the impugned sale transaction through his son Riaz Khan. Similarly, in the plaint the respondent/plaintiff mentioned that he received the information at Adda Highway Khan Khel, whereas in his statement, he stated that he received the information in the Baithak at Adda highway Gandi Khankel, which is clear deviation and improvement on the part of respondent/ plaintiff. As the plaintiff has failed to mention the name of informer in the plaint, therefore, in order to meet the deficiency, he made improvement in his statement which is not permissible under the law. Such being the case, it can be safely held that the respondent/plaintiff has not fulfilled the requirements of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. Reliance in this respect can be placed on 2007 SCMR 1143, 2007 SCMR 895, 2006 YLR 1143, 2009 MLD 558 and 2008 CLC 1126.

9. As far as superior right of pre-emption of respondent/plaintiff is concerned, according to Patwari Halqa (P.W.2), the respondent/ plaintiff is neither co-sharer nor owner of adjacent land, the Khasra No. 538 owned by the respondent/ plaintiff and the suit land is intervened by the Khasar No.

521. The claim of the respondent/ plaintiff being Shafi Khalit on the basis of Khasra No.521 is misconceived, because according to revenue record, Khasra No.521 is owned by Mahazi Malekan and the respondent/ plaintiff is owner to the extent of his own mahazi land, which is not contiguous to the suit property as per report of local commissioner and thus the respondent/ plaintiff has also got no superior right of pre-emption.

10. It needs no emphasis that for successful exercise of right of pre-emption, the proof of superior right of pre-emption, 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. As in the instant case, the plaintiff has failed to prove superior right as well as Talb-e-Muwathibat in accordance with section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. Learned trial Court has properly appreciated the legal and factual position of the case, whereas learned appellate court has erred in law by decreeing the suit of respondent/ plaintiff, which judgment and decree is not sustainable.

11. For the reasons mentioned above, the instant revision petitions is accepted, resultantly, impugned judgment and decree of learned appellate court is set aside and suit of respondent/plaintiff stands dismissed. No order as to costs. AG/284/P Revision allowed.