2004 PLP 359 (CLC)

(i) appeal before the District Judge was not competent because attorney of the respondent was not conferred upon express powers to file appeal or revision vide deed of attorney and same is the case here too. (ii) that time, place and names of witnesses of Talb are not given in the plaint and also in notice Talb-e-Ishhad which omission is fatal; (iii) that copy of notice Talb-e-Ishhad tendered in evidence by the pre-emptor does not bear thumb-impression of the attesting witnesses, thus, is defective in law due to non-compliance therewith.

4. On-behalf of the respondent reliance was placed on the principle of law enunciated in the case of Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and it was argued that findings on facts recorded by the learned appeal Court are based on fair and proper appraisal of evidence on record hence are not susceptible to interference in revisional jurisdiction and that when it is not established that the exchange of land was for better management then it is included in the definition of sale thus, the transaction was pre-emptible.

5. The first plea regarding the incompetency of the attorney in filing the appeal is not tenable for the reasons that all the acts performed right up to the High Court by the attorney have been either expressly or impliedly confirmed and ratified by the pre-emptor/principal. When notice to the respondent-pre-emptor was issued in this petition, the attorney thus, appointed appeared and defended the cause of the. respondent-plaintiff. True that deed of power of attorney is to be strictly construed and unless authority/power is conferred expressly it cannot be construed to be implied or inherent in the agent but the provisions of sections 196, 197 and 199 of the Contract Act are an exception to the general rule wherein the principal has been given an option to ratify an act not expressly conferred on the agent and such ratification may be either express or implied and once such acts of agent are ratified by principal, the same stands validated for all legal purposes and bind the principal and would have the same effect as done or performed by the principal himself. As discussed above, all the acts performed and steps taken by the attorney have been confirmed/ratified by the pre-emptor through his conduct both express and implied thus, are held to have been validly performed.

5. The omission of time, place and names of witnesses from the plaint is equally not fatal to the case of the pre-emptor in view of the law laid down by the Honourable Supreme Court in the ibid case.

6. The non-signing of notice Talb-e-Ishhad by the attesting witnesses is also not of much consequences because both the witnesses appeared in the Court and have confirmed that they had attested the original notice. Even in the written statement the receiving of notice Talb-e-Ishhad has not been denied by the petitioner: The apex Court has also dealt with this aspect in the case of Abdul Malik v. Muhammad Latif 1999 SCMR 717 and the omission to sign the notice by the attesting witnesses was held to be a technical one.

7. The question as to whether the suit-land acquired through exchange is exempt from pre-emption in view of clause (iv) of section 2 of the N.-W.F.P. Pre-emption Act, 1987. requires serious consideration as it is a question of fundamental importance and trial Courts are frequently confronted with this question of law in majority of cases. The word "better management" has not been defined by the Pre emption Act, 1987, therefore, the dictionary meaning of it is to be seen first. According to. Black's Law Dictionary "Manage" means to control and direct to administer, to take charge of, to conduct, to- carry on the concerns of a business or establishment. While according to, Corpus Juris Secondum Vo1.55 "Management" means usually signifying positive rather than negative conduct arid relating to guidance and control. It is variously defined as administration, care, conduct, control, direction, guidance, physical or manual handling or guidance, superintendence, Government, carrying on, general management, direction to do something, art of management, the manner of treating, carrying on, or using for a purpose, an exercise of conduct in carrying on a business and judicious use of means to accomplish an end. Generally .applied to affairs that are somewhat complicated and that involved skill and judgment while the term "Management" means Government, control; superintendence, physical or manual handling or guidance, act of managing by direction or regulation or. administration as management of family or of a household or of servants or of great enterprises, or of great affairs. The phrase "better management" used in clause (iv) however, is of somewhat wide connotation and amplitude. The exemption from pre emption right allowed in the present form is some what conditional and is a violent exception to the rule regulating exchange of property. Under the provision of section- 118, Transfer of Property Act exchange is defined to mean that when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing nor both things being money only, the transaction is called an exchange. In the repealed Act of Pre-emption transaction of exchange or property was exempt from pre-emption and no condition was attached to it like the one mentioned in clause (iv) of section 2 of Pre-emption Act. 1987. The departure made by the Legislature from the general rule anti the previous law on the subject is meaningful and the intention of the law-makers, therefore, must be given effect in letter and spirit.-To claim valid exemption from the pre-emption on the basis of exchange of agriculture land now the vendee is required to prove by evidence that the exchange was necessary because of the requirements of better management. To define and interpret the phrase "better management" no hard and fast rules can be laid down, however, some of the purposes may be elucidated as follows:-- The exchange would bear fruitful results because on account or effective control and management of the same in relation to the agriculture activities thereon. (ii) To bring the land within the common or sole irrigation system and better channelisation of water therefor. (iii) To prevent/thwart disruptive and damaging effects of unwanted discharge of water of one land over the other. (iv) To amalgamate the land got in exchange with other land of the vendee making it a compact block out of scattered pieces so that it is brought within the fold and command of one irrigation channel or for the purpose of getting one and the same crop therefrom. (v) By such exchange to get an access to a path/road leading from the farm to the road or to the market. (vi) To secure and safeguard the standing crop over there from being damaged by the animals frequenting there or other factors of the These factors might not be all encompassing and may vary from place to place, from person to person and from one class of land to other class of land which may be considered in each case on the basis of evidence and circumstances of that case, however, the sole object must be the .one to achieve better results from agriculture point of view byway of exchange of land.

8. The term "better management" has been used in sub-clause (iv) of clause (d) of the Pre-emption Act. The said provision deals with the definition of sale, classification of sale and also with those conveyances/ 'transfers of land which would not fall within the definition' of sale, therefore, it is essentially required that the above conditions or anyone of them must be established through evidence by the vendee before claiming exemption and such plea must be taken at -the earliest in the written statement and more preferably at the time of attestation of mutation or execution of exchange deeds.

9. In the instant case the vendee/defendant has failed to lead any evidence to establish the said plea rather from the evidence on record it can be conceivably inferred that, the said plea was abandoned at the trial stage, and was not seriously urged before the Courts below thus, this plea of exemption claimed in the written statement is not available to the vendee /petitioner and it was rightly discarded/rejected by the appeal Court. Besides, the above no other issue/point was argued before this Court.

10. For the foregoing discussion and after going through the impugned judgment of the appeal Court no different view can be taken both on legal and factual premises from the one recorded by the Appellate Court which is unexceptionable. This petition, therefore, being devoid of legal merits is dismissed with no order as to costs. These are the detail reasons for the short order of today. H.B.T./996/P Revision petition dismissed.