1995 PLP 1061 (MLD)

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑ ‑‑‑‑S.13‑‑‑Talb‑e‑Muwathibat has to be made as soon as plaintiff gets knowledge of transaction of sale ‑‑‑Factum of Talb‑e‑Muwathibat being question of fact it has to be alleged specifically in plaint and has to be proved through evidence in Court‑‑‑Plaintiff had not alleged in plaint as to when did he come to know of transaction, as to who was the person that informed him and what was the place where he received information and who were the persons in whose presence he made immediate demand ‑‑‑Factum of Talb‑e -Muwathibat having not been alleged in plaint and same being question of fact, plaint was liable to be rejected on that sole ground. Dost Muhammad Khan for Petitioner. S. Zafar Abbas Zaidi and Abdul Rashid Khan for Respondents. Date of hearing: 24th July, 1994. Sher Dil Khan and Haqdar Ali Khan sons of Tair Khan of Seru Bada Khel, Tehsil and District Bannu successfully pre‑empted a transaction of 11 Marlas vide Mutations Nos. 8642 and 8643 dated 19‑3‑1990 on payment of Rs. 10,846 as pre‑emption money vide concurrent findings of Civil Judge, Bannu dated 24‑7‑1991 and of the Additional District Judge, Bannu dated 23‑7‑1992 whereby it also was not accepted that the exchange in question was an exchange for better management as provided under section 2(d)(iv) of the N. W. F. P. Pre‑emption Act, 1987. The vendee Akbar Nawaz Khan has challenged such findings through this revision.

2. Mr. Dost Muhammad Khan the learned counsel for the petitioner based his arguments on three‑fold grounds. Firstly, that the pre‑emptor had not proved having made `Talb‑e‑Muwathibat'. Secondly, that the pre‑emptor had failed to prove the transaction to be a sale and hence pre‑emptible, and thirdly, that the defendant‑vendee had proved on record that the disputed

4. The word "better management" is not defined in the Act and rightly so because it can vary from case to case and would remain a question of fact all the time. It is again a known principle of law that every question of fact is required to be distinctly alleged and thereafter proved. In the instant case it is not alleged in the written statement as to what was the nature of‑better management that necessitated the transaction of exchange in dispute. It was for the first time in the Court statement of defendant Akbar Nawaz Khan that 8 he came out with an excuse that the suit property was in depression, that it collected the water from the defendants contiguous property and thus used to be rendered uncultivable and hence the exchange was necessitated so that a better management is achieved. At the outset, this solitary statement is neither supported by witnesses nor is it given in support of any pleadings in the written statement and hence is not acceptable.

5. Moreover, the word better management is used with reference to the already owned property of a party for which the disputed property is obtained in exchange so that some degree of better management of the property of the transferee is attained by acquiring the suit property. The acquisition of the disputed property on the ground that it be better managed, is an utterly funny idea because the acquired property never belonged to the receiving party and the better management thereof had never been his headache or problem. In the instant case the claim that the disputed property was acquired by the defendant because it collected the surplus water of the contiguous land for being in depression, is no acquisition for better management at all and hence the exchange would be considered a simple exchange included in the word `sale' as defined under the Act and thus pre‑emptible. A pre‑emption suit is, therefore, maintainable where one property would be a valuable consideration for the other and thus the passing of money consideration would not be l necessary to be proved.

6. Next material question would be that of `Talb‑e‑Muwathibat'. The p plaintiff has claimed to have attained the knowledge of transaction prior to the attestation of mutation. Rather, the mutations in the instant case were not even allowed to be attested. No doubt under section 13 of the N. W. F. P. Pre- emption Act, 1987 a pre‑emptor is required to make `Talb‑e‑Muwathibat' immediately upon acquiring the knowledge of the sale, therefore, he may not be required to wait till the attestation of mutation, which he may, for the institution of the suit but he may make `Talb‑e‑Muwathibat' as soon as he gets the knowledge of transaction. As the factum of `Talab' is also a question of fact, therefore, with reference to the time and space, it has to be alleged specifically in the plaint and it has to be proved accordingly through evidence in Court, judged at the touchstone of the aforesaid standard, the plaintiff‑pre -emptor, in the instant case, has not at all alleged in the plaint as to when did he come to know of the transaction, as to who was the person that informed him and if what was the place where he received the information and if who were the persons in the presence whereof he made the immediate demand. The factum of `Talab' is not at all alleged in the plaint and hence being a question of fact, is liable to be rejected on this sole ground.

7. Coming to the evidence of the plaintiff, only Haqdar Ali Khan and not Sher Dil Khan appeared in the witness‑box. He never disclosed if when he got the knowledge of transaction, if who on earth was the person who broke the news and before whom had he made the immediate and jumping demand. The witnesses produced in Court namely Hayatullah and Khanadan also had disclosed noting about `Talb‑e‑Muwathibat' except that they went in `Jirga' to the vendee for surrender of land. The factum of `Talb‑e‑Muwathibat' has not at all been proved in the instant case and thus no right of pre‑emption becomes vested in the plaintiffs. The two Courts below have totally misinterpreted the evidence and have totally ignored the factum of `Talb‑e‑Muwathibat'. They have concurrently entered into illegality. The revision petition is accepted, the impugned judgments and decrees are set aside and the pre‑emption suit of Sher Dil Khan etc. is hereby dismissed, leaving the parties to bear their own costs. AA./1729/P Revision accepted.