2010 PLP 2303 (YLR)

ZIA-UR-RAHMAN KHAN, J.--The petitioners have called in question the judgment and decree dated 13-4-2005 recorded by learned Additional District Judge/Izafi Zila Qazi, Malakand at Dargai whereby while dismissing the appeal of the petitioners, the judgment and decree dated 27-4-2004 decreeing the suit for pre-emption of the respondent with regard to the suit property, has been upheld.

2. Short facts of the case are that respondent in the capacity of plaintiff filed a suit for possession through pre-emption before the trial Court against the present petitioner qua the disputed property having been purchased by the petitioners from one Abdul Malik on the ground of his being co-sharer, participator in the immunities and appendages and also on the basis of contiguity. It is averred in the plaint that the sale was kept secret and when on 1-10-2000 on Sunday at about 5-00 p.m., the pre-emptor got knowledge through Haji Gul Rose, he there and then in presence of the said informer and two other persons namely Taj Muhammad and Ziarat Khan announced his superior right of pre-emption and in this way the legal formalities of section 13 of the N.-W.F.P. Pre-emption Act were observed. Notice Talb-e-Ishhad was given to the petitioners on 4-10-2000 through their counsel. The present petitioners appeared and opted to contest the suit by filing written statement wherein they raised several legal and factual objections. The learned Court after framing of issues put the parties on trial and after recording the evidence of both the parties, the trial was concluded and thereafter keeping in view the predominant nature of the suit passed a decree for possession through pre-emption against the sum of Rs.2,20,000 on 27-4-2004. Being dis satisfied with the said decree the petitioners filed an appeal but the same was dismissed on 13-4-2005.

3. Learned counsel for the petitioners submitted that the respondent has failed to observe the formalities of Talb-e-Muwathibat and Talb-e-Ishhad and also that the disputed property does not situate in Khasra No.895 but in the plaint it is shown to be in the said Khasra number and due to misdescription of the suit property, the suit of the respondent is liable to be dismissed.

4. On the contrary, the learned counsel for the respondent decree-holder supported the impugned concurrent judgments and decrees recorded by the two Courts below and according to him no exception can be taken to the said judgments.

5. The record shows that the plaintiff-respondent besides recording of his own statement as P.W.4 has examined five more witnesses in support of his assertions alleged by him in the plaint. Statement of Aslam Khan Patwari is recorded as P.W. 1 who through his evidence has proved the superior right of respondent qua the suit property. Likewise, one Noor Rahim has appeared as P.W.2 who has also made it crystal clear that respondent is recorded as owner in Khasra Nos.895,

894. The statement of Post Master Zamin Khan is recorded as P.W.3 who has confirmed the delivery of the registered receipt No.1440 Exh-P.W.3/1 and Exh.P.W.3/2. The statement of the informer Haji Gul Roze is recorded as P.W.5 who has duly supported the version of the respondent recording the observance of formalities of Talb-e-Muwathibat. He is also marginal witness of the notice of Talb-e-Ishhad. Similarly, the statement of Taj Muhammad is recorded as P.W.6 who through his statement has further imparted strength to the version of the respondent about the observance of the legal formalities. In rebuttal, the petitioners produced four witnesses. As the respondent was enforcing his right of pre-emption qua the suit property against the petitioners therefore, he was burdened with the initial responsibility to prove his superior right of pre-emption and the observance of the legal formalities of Talb-e-Muwathibat and Talb e-Ishhad. In this case, the respondent has succeeded in producing cogent and reliable witnesses in whose presence all these legal formalities were observed. The statement of all these witnesses are in line and in consonance with each other and the petitioners despite subjecting the said witnesses to a lengthy cross-examination had not been able to shatter their testimony or to prove the claim of the respondent as a false one. The sale in favour of the petitioners is based on un-registered sale and as at the time of sale they were already in occupation of the disputed property which is a residential one, therefore, there was no change of possession which could put the respondent on the alert for filing a suit for pre-emption. The two Courts below after scanning the entire evidence on record have rightly held the respondent entitled to the decree for pre-emption and as the petitioners were able to prove some improvement in the disputed property therefore, while delivering judgment on issue No.8, the learned trial Court apart from holding the sale price as Rs.1,50,000 has also held them entitled to the amount of compensation as Rs.70,000 and as the respondent pre-emptor is not disputing the fixation of sale price and the amount of improvement, therefore, the learned trial Court has committed no error in this respect. The learned counsel for the petitioners has not been able to make out a case for indulgence of this court within the purview of section 115, C.P.C.

6. In view of the above discussion, this revision petition being without substance and in the absence of any material irregularity, illegality, misreading and non-reading of evidence or juris dictional defect, it is hereby dismissed leaving the parties to bear their own costs. H.B.T./183/P Petition dismissed.