P L D 2010 Peshawar 73 (PLP)

MIAN FASIH-UL-MULK, J.

This revision petition under section 115, C.P.C. has been filed against the judgment and decree dated 6-7-2007 passed by learned District Judge/Zilla Qazi Buner, whereby the appeal of petitioner against the judgment and decree dated 20-4-2006 of the learned Civil Judge-III, Buner was dismissed.

2. Briefly stated, the facts of the case are that Muhammad Karim son of Muhammad Akbar brought a suit for possession through pre-emption against Zuljalal son of Biladar and one Adam son of Ahmad Din of village Dawar Haidera, Tehsil Dagar, District Buner. It was averred in the plaint that the petitioner had superior right of pre-emption for which he had made Talb-e-Muwathibat on 19-6-2005 when the transaction had become known to him on the same day at 10-00 a.m. at Dera Umar Saeed situated near Tangai Sangar Amnore through Gut Awan son of Toti Khan resident of Kagoora Kaz Shammal in presence of Umar Said son of Muhammad Karim. Notice of Talb-e-Ishhad was sent through registered A.D. on 20-6-2005 followed by the aforementioned suit on 27-6-2005.

3. The suit was contested and after recording evidence, the learned Civil Judge/Illaqa Qazi vide his judgment dated 20-4-2006 and the learned District Judge/Zilla Qazi vide his judgment dated 6-7-2007 non-suited the petitioner.

4. The learned trial Court arrived at conclusion of dismissal of suit, mainly on the grounds of non-performance of Talbs in accordance with law, having no superior right of contiguity and waiver of pre-emption right, while the learned appellate Court upheld the judgment and decree of the learned trial Court on the ground that Talb-e-Muwathibat could not be made legally through an agent, therefore, the remaining evidence, in his view, needed no discussion. Petitioner being aggrieved of the aforementioned judgments has challenged the concurrent findings through the instant revision petition.

5. Mian Fazli Amin Advocate, learned counsel for the petitioner has vehemently argued that the required Talbs were made in accordance with the spirit of sections 13 and 14 of N.-W.F.P. Pre-emption Act, 1987 (hereinafter referred to as the Act) and the findings of trial Court are based on misreading and non-reading of evidence. It was further argued that the respondents had not specifically denied the superior right of petitioner on the ground of contiguity in their written statement nor any question was put to the plaintiff witnesses in cross-examination. Findings of the learned trial Court with regard to the contiguity in absence of any evidence are based on surmises and conjectures and therefore not tenable. Learned counsel referred to section 15 of the Act ibid and Article 242 of Muhammadan Law (2006 Edition by Mullah) and submitted that the right of pre-emption does not waive or is lost before sale as such right accrues to the pre-emptor after sale. It was finally argued that the learned appellate Court has not interpreted section 14 01 the Act in correct perspective and has passed the impugned judg0h illegally and with material irregularity reliance was placed on 2004 CL 359, 1992 MLD 2536, 2000 CLC 1654, 1991 CLC 209 and PLD 2007 SC 26.

6. On the contrary, Mr. Asif Ahmad Advocate learned counsel for the respondents controverted the contentions, so raised by the petitioner and submitted that as per dictum laid down by the superior Courts, the concurrent findings of fact, how erroneous the same may be, cannot be interfered with in revisional jurisdiction. Reliance was placed on PLD 2003 SC 315, 2010 SCMR 5, 2007 SCMR 870 and 2003 MLD

625. On merit, it was contended that the performance of talbs is to be proved beyond reasonable doubt and right of pre-emption being a feeble right should not be considered as routine matter. The performance of Talb being a personal act must be performed by the pre-emptor himself and not through an agent. Learned counsel invited the attention of Court to 2009 YLR 90, 2004 YLR 202 in this respect, it was further contended that the superior right of pre-emption on the ground of contiguity though not specifically denied in the written statement but was denied in general terms. It was maintained that since the pre-emptor was in the knowledge of sale transaction prior and after the sale therefore, he has waived his right, if any, by not demanding the talbs on due date and time. Finally, it was argued that the findings of both the lower Courts are based on record and thus warrant no interference.

7. I have heard the learned counsel for the parties at great length and perused the record with their able assistance.

8. The question for determination as to whether the petitioner was rightly non-suited by both the Courts below on the grounds mentioned in the impugned judgment require discussion for a just decision.

9. Taking up the first ground of Talb-e-Muwathibat it would not be out of place to mention that performance of Talb-e-Muwathibat is pure question of fact which in the instant case was not only alleged in the plaint but the pre-emptor has examined sufficient evidence in this behalf. Under section 14 of the Act, where a person is unable to make demands under section 13, his guardian or agent may make the required demand, on his behalf. It is gathered from record that pre-emptor was stated to be 100 years old who appointed his son namely Said Nazar as a special attorney vide Deed Exh.P.W. 4/1. 10 In order to determine the powers delegated to the attorney by the petitioner, it is necessary to see the language of the document. It would be therefore expedient to reproduce the contents of the said power of attorney below:

11. The superior Courts have time and again held that general rules of construction of documents and deeds, which the Court can call in aid to discover the intention of the author can be categorized as under: - (i) In the first instance the intention of the parties is to be collected from the documents itself and not by the Court presuming an intention. If the words in a document are express and clear, effect must be given to them and any extraneous inquiry into what was intended by the parties is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. (ii) To find the intention of parties expressed by the words used in a document, the document must be read as a whole. The words of each clause must be so interpreted as to bring them into harmony with the other provisions of the document. If that interpretation does no violence to the meaning of which they are susceptible. Effect must, as far possible, be given to every word and every clause. (iii) If there be two methods admissible for the construction of document, one which will give effect to all the clauses therein shall be preferred and the construction which will render one or more of the clauses nugatory shall invariably be avoided.

12. Viewing the special power of attorney of the present case in the context of above rules, the intention of pre-emptor was clear and unambiguous to authorize his agent in terms of section 14 of the Act, to do all requisite acts for performance of demands of pre-emption as he was unable to perform these acts being an aged person.

13. Taking up the second ground of superior right of contiguity for discussion, it is evident from Shajara Kashtwar Ex. P.W. 1/3 that the suit property consists of Khasra Nos. 951 and 952 whereas khasra No.950 is `Ghair Mumkin Rasta' which is adjacent to the property of vendor, vendee and pre-emptor. Their remains no doubt that the pre-emptor had proved contiguity with the suit property through evidence.

14. It brings us to the third ground of waiver. To appreciate its legal import Article 242 and Article 243 of Muhammadan Law are of paramount consideration. It has been laid down in unequivocal terms that as the right of pre-emption accrues after the completion of sale, it is not lost because before the completion of sale, the property was offered to the pre-emptor and he refused to buy. The same principle has been enunciated in 1991 CLC 209 as well. The findings recorded by trial Court on all these grounds are devoid of any force as the same are based on misreading and non-reading of evidence. The learned appellant Court has also erred in law by holding that Talb-e-Muwathibat could not be made legally through agent. As earlier mentioned the pre-emptor being an agent person was unable to perform various acts and therefore, could exercise right of pre-emption in terms of section 14 of the Act. This view gets support from the judgments reported in 1992 MLD 2536 and 2000 CLC 1654.

15. Adverting to the exercise of revisional jurisdiction, suffice it to say that concurrent findings of facts shall not be interfered with in revisional jurisdiction provided such findings do not suffer from controversial defects, illegality or material irregularity. Even otherwise the apex Court in the cases reported in PLD 2007 SC 609 and 2007 SCMR 1714 have observed that the concurrent findings are not sacrosanct and if some material irregularities, non-reading, misreading is found in the findings of the Courts below, High Court can interfere in the matter and revision is competent.

16. Though there are no findings recorded by the learned trial Court qua the fixation of correct market value of the suit property but in view of statements of plaintiff witnesses and more particularly when the market value as mentioned in mutation was not questioned at all by the learned counsel for petitioner, I do not deem it fit to remand the case for the said purpose and proceed to fix the market value of suit property as that mentioned in the sale Mutation No. 220 dated 28-5-2005.

17. Consequently upon what has been discussed above, the instant revision succeeds. The impugned judgments and decrees of both the Courts below are set aside. Pre-emption suit is hereby decreed in favour of petitioner and against respondents in the sum of Rs.5,60,

000. The pre-emptor is required to pay the balance of amount in addition to the one already deposited by him at the time of institution of suit as pre-emption money within a period of one month from the date of announcement of this judgment failing which the suit shall stand dismissed. H.B.T./131/P Petition accepted.