2018 PLP 1328 (YLR)

ABDUL SHAKOOR, J.

Through instant Revision Petition, the petitioner/ plaintiff has assailed the concurrent judgments and decrees of learned Civil Judge-VI, Lakki Marwat dated 18.12.2010 and that of Additional District Judge-IV, Lakki Marwat dated 16.11.2012, whereby the former dismissed the suit of petitioner/ plaintiff, while the latter upheld the judgment and decree of the trial Court.

2. Succinct facts giving rise to filing of the instant revision petition are that Qutab-ud-Din, the plaintiff, now petitioner instituted a suit for possession through exercise of right of pre-emption against the respondent/defendant, who is vendee of the suit land under transfer deed No.260 dated 18.08.2007, on the sale consideration of Rs.30000/-, but to defeat the pre-emption right of plaintiff/petitioner a fancy amount of Rs. 140000/-was entered.

3. As per averments of the plaint, the petitioner/plaintiff came to know about the suit sale on 03.11.2007 at Deger Vela about 04.00 P.M at his baithak, situated in village Michan Khel, Lakki Marwat through Amir Nawaz in presence of Rasool Ghulam Khan. He performed Talb-e-Muwathibat, there and then, in presence of above named witnesses. Later, on 06.11.2007, in confirmation of the first Talb, the petitioner/plaintiff sent to the vendee/ defendant notice Talb-e-Ishhad, which was duly attested by the two marginal witnesses. He averred in his plaint that he is entitled to perform exercise of right of pre-emption on all the three grounds available under the law.

4. The averments of the plaint were controverted by defendant/respondent in his written statement raising therein various objections legal as well as factual. The controversial pleadings of the parties resulted into framing of issues. Pro and contra evidence were recorded. On conclusion of trial learned trial court, dismissed the suit of petitioner/plaintiff vide judgment and decree dated 18.12.2010. Not contented with the judgment and decree of learned trial court, the petitioner/plaintiff assailed the same through appeal before the learned Additional District Judge-IV, Lakki Marwat, who after hearing arguments of learned counsel for the parties, dismissed the appeal, vide impugned judgment and decree dated 16.11.2012, hence, the instant revision petition.

5. Arguments heard and record perused.

6. Perusal of the record reveals that petitioner/plaintiff mentioned the details about performance of Talb-e-Muwathibat in presence of Rasool Ghulam through Amir Nawaz in his plaint. In order to prove the same, the petitioner/plaintiff produced the alleged witness Rasool Ghulam before the witness box as PW-5, he in examination in chief, stated that:--

7. On such statement of witness, he was declared as hostile and learned counsel for petitioner/plaintiff cross-examined him besides learned counsel for defendant. It was contention of learned counsel for petitioner/plaintiff that what has been stated by a hostile witness it does not affect the case of petitioner, while in my humble view, the statement of a witness cannot be discarded on the mere reason that he has been declared hostile, unless the credibility of such witness is shaken during cross-examination by either side and the Court can come to its own conclusion after a consideration of whole of his evidence. In the instant case, except denying information of impugned sale mutation by informer to the petitioner/plaintiff and performance of Talb-e-Muwathibat in his presence, he did not deny affixing his thumb impression on the notice Talb-e-Ishhad. If he was won over, he should have denied all the things, rather he stated that he has good relations with petitioner/plaintiff and has come to the court with him. In his cross-examination he declared it incorrect that he is giving false statement being won over or on the pretext of his any relation with respondents/ defendants. In such view of the matter, this court holds that during cross-examination learned counsel for the petitioner has failed to shatter the testimony of hostile witness and thereby arrived at the conclusion that the petitioner/plaintiff has failed to prove performance of Talb-e-Muwathibat under section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. The learned trial court as well as appellate court has rightly appreciated the facts and circumstances of the case and arrived at just conclusion, on this issue.

8. 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 the petitioner/plaintiff (PW-3), Qutqab-Din stated that he gave detail to Inayatullah Advocate, so that he may scribe notice Talb-e-Ish'had, but in cross-examination he stated that he has given only detail of co-sharership and price of land in dispute and except this he stated nothing to Inayatullah advocate, while the PW-4, Amir Nawaz stated that Inayatullah advocate scribed notices Talb-e-Ish'had in his presence, whereas other marginal witness to the notice Talb-e-Ish'had namely Rasool Ghulam, PW-5, who has been declared hostile, stated in cross-examination that on the day of scribing notice he had come with petitioner/plaintiff, he affixed his thumb impression on the notice, but he did not know what was in the notices. From the preponderance of evidence it is manifest that the petitioner/plaintiff has not asked the Inayatullah Advocate that he wanted to confirm his intention to exercise his right of pre-emption by scribing notice Talb-e-Ish'had; nor the alleged witnesses, appeared in witness box, have stated that petitioner/plaintiff in order to confirm his intention of exercise of right of pre-emption has asked the said advocate for scribing notice Talb-e-Ish'had. Thus, the story narrated in the notice Talb-e-Ish'had was prepared by the Inayatullah Advocate. 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), proves that the petitioner/plaintiff has failed to have exercised his right of pre-emption in accordance with the provision of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. The relevant portion of judgment of the apex Court is reproduced as under:-- "

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."

9. The respondents/defendants have denied the receipt of notice Talb-e-Ish'had in written statement as well as in court on oath. In such a situation the petitioner/ plaintiff was under legal obligation to produce post man, to prove service of notice Talb-e-Ish'had, as held by the apex Court in cases titled "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) and "Basheer Ahmed v. Ghulam Rasool" (2011 SCMR 762). In the instant case, petitioner/plaintiff produced one Muhammad Ismail Khan clerk PO, district complex Lakki Marwat, as PW-1, who in cross-examination categorically stated that 'It is correct that neither he is post man, (delivery clerk), nor the respondents/ defendants reside within the limits of this post office. The petitioner/plaintiff has not produced the postman in order to prove delivery of registered envelops, hence, he has failed to prove delivery of notices Talb-e-Ishhad in accordance with law.

10. It needs 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. As in the instant case, the plaintiff has failed to prove performance of Talb-e-Muwathibat and sending notice Talb-e-Ishhad, in accordance with the provisions of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.

11. The scope of revisional jurisdiction is very limited in which the court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor it can upset the same, unless these findings are shown patently illegal, without jurisdiction, based on conjectural presumptions or erroneous assumption. No such infirmity has been pointed out by the learned counsel for the petitioner in the impugned judgments, which may warrant interference of this Court in its revisional jurisdiction. In this regard reference can be made to case titled " Muhammad Rashid Ahmad v. Muhammad Saddique" (PLD 2002 SC 293) and "Muhammad Idrees and others v. Muhammad Pervaiz and others" (2010 SCMR 05).

12. In light of the above, the suit of the petitioner/plaintiff is not sustainable. The learned both the Courts below have rightly dismissed the suit of petitioner/plaintiff by rightly relying on the well settled principle laid down by the apex Court. Hence, this petition being devoid of merits, stands dismissed. No order as costs. ZC/23/P Revision dismissed.