P L D 2011 Peshawar 102 (PLP)

ATTAULLAH KHAN, J.

Through this revision petition filed under section 115, C.P.C., Haji Amanullah Khan etc.; defendants/ petitioners herein, have called in question the concurrent judgments and decrees dated 14-1-2010 and 25-2-2010 passed by the learned Civil Judge Paharpur and learned Additional District Judge-II D.I. Khan, whereby the pre-emption suit of Abdur Rashid Khan, plaintiff/respondent herein was decreed.

2. According to the averments made in the plaint by the plaintiff Abdur Rashid Khan, the defendants Amamillah Khan etc.; had purchased the suit-land measuring 11 kanals, 7 marlas situated in Mouza Wanda Feroz through a registered deed dated 25-11-2002 fully detailed in the heading of the plaint for an actual amount of Rs.74,000 but in order to defeat his pre-emptive rights, an exaggerated amount of Rs. Five lacs was mentioned in the said registered deed. He thus pre-empted the said transaction by filing the present Suit No. 437/1 on 18-2-2003 on the basis of contiguity, immunities and appendages and having superior right of pre-emption.

3. The defendants were summoned who contested the suit by filing written statement and during pendency of the suit, they also submitted an application to the trial Court for verification by the Finger Print Expert Peshawar the thumb-impression of Bahadur who was the marginal witness of the notice of Talb-e-Ishhad. However, the said application was rejected by the trial Court whereagainst appeal of the petitioners also failed and hence this revision petition.

4. Needless to mention here that the petitioners had earlier too filed a similar application before the trial Court but was turned down by both the Courts below whereagainst Writ Petition No.206 of 2007 was filed in this Court but was withdrawn with permission to file another application if the recorded evidence was deemed insufficient for just and proper decision of the issue in question. Now this is the second round for the same purpose.

5. Learned counsel for the petitioners argued that the thumb-Impression of Bahadur Khan P.W.7 is fake on the notice of Talb-e-Ishhad, therefore, it is necessary to get it compared through a handwriting Expert in order to reach to a correct conclusion regarding the fact that whether the said notice is actually thumb impressed by the witness or not.

6. On the other hand, learned counsel for the respondent argued that there is no need of sending the thumb-impression of P.W.7 to the Handwriting Expert because the witness has confirmed that the notice was issued and he was the attesting witness thereto.

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

8. The statement of the said witness P.W.7 has been recorded by the trial Court and he is the marginal witness to the notice of Talb-e-Ishhad. According to his statement, he thumb impressed the notice which by itself is sufficient' to justify that he has thumb impressed the notice of Talb-e-Ishhad. Even if the notice is not thumb impressed or signed by him, it would' not make the notice of Talb-e-Ishhad defective because he himself appeared in the Court and stated that the notice was issued in his presence and affirmed his witnessing it. It has been held by the Apex Court in the case titled Abdul Malik v. Muhammad Lateef reported in 1999 SCMR 717 that the service of registered notice containing the names of two truthful witnesses amounts to satisfactory compliance of the provisions of the N.-W.F.P. Pre-emption Act, 1987.

9. In view of the above verdict of the Apex Court if notice is served and the names of two attesting witnesses are mentioned therein, then the notice would be deemed to be in accordance with the requirements of law.

10. In this case, P.W.7 has appeared in person whose thumb impression is impugned and has confirmed that he is marginal witness of the notice of 'Talb-e-Ishhad. The plea of the petitioners in their application before the trial Court that the witness is an educated person and he used to sign documents, therefore, his thumb impression is fictitious, is without substance because it is the sweet will of the person either to sign it or to thumb impress it. Otherwise, the formalities required under the law for Talb-e-Ishhad stand duly complied with, therefore, no exception can be taken at this stage.

11. Learned counsel for the petitioners miserably failed to point out any illegality, irregularity mis-reading or non-reading of evidence in the impugned concurrent orders of the Courts below so as to warrant interference by this Court in the exercise of its revisional jurisdiction which are accordingly maintained.

12. Resultantly, in view of the dicta handed down in the cases of Abdur Rahim and another v. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 Supreme Court 291) and Muhammad' Rashid Ahmad v. Muhammad Siddique (PLD 2002 Supreme Court 293), I find no merit in this revision petition which is accordingly dismissed leaving the parties to bear their own costs. S.A.K./4/P Petition dismissed.