2013 PLP 1638 (YLR)

QAISER RASHID KHAN, J.

This revision petition is directed against the concurrent judgments and decrees dated 25-3-2010 and 7-5-2011 passed by the learned Civil Judge-IV D.I. Khan and Additional District Judge-I D.I. Khan respectively, whereby the pre-emption suit filed by the petitioner/plaintiff Iftikhar Ahmad Khan against the respondent/ defendant Abdul Majeed Khan and appeal thereagainst were dismissed.

2. Briefly stated facts of the case are that Iftikhar Ahmad Khan plaintiff filed a suit for pre-emption against Abdul Majeed Khan defendant in respect of the land fully described in the plaint and mutated in his name through Mutation No.6401 attested on 31-1-2006 claiming his superior right of pre-emption qua him on the basis of contiguity, co-sharership, immunities and appendages to the suit-land. It was also averred in the plaint that the defendant had actually purchased the suit-land for a sum of Rs.67500 from its original owner, namely, Siddiqullah Khan son of Ajab Khan, resident of Kot Adil, District Bannu, but in order to defeat his pre-emptive rights, and exaggerated and inflated amount of Rs.1,35,000 was mentioned in the suit mutation.

3. The defendant contested the suit and filed written statement. The divergent pleadings of the parties gave rise to the framing of ten issues including the relief.

4. The learned trial Judge on evaluating the evidence brought on record and considering the arguments advanced at the bar by the learned counsel for the parties dismissed the suit of the plaintiff, whereagainst his appeal also met the same fate and hence this revision petition.

5. I have carefully gone through the available record of the case and considered the arguments of the learned counsel for the petitioner.

6. Section 13 of the N.-W.F.P Pre-emption Act, 1987 envisages that the right of pre-emption of a person shall be extinguished unless he makes demands of pre-emption in the following manner, namely:-- (i) Talb-e-Muwathibat, i.e. immediate demand by a pre-emptor in the same sitting/majlis where he came to know about the sale transaction declaring his intention to exercise of his right of pre-emption. (ii) Talb-e-Ishhad, i.e. demand by establishing evidence and, (iii) Talb-e-Khasumat, i.e. demand by filing a suit.

7. As far as the performance of Talb-e-Muwathibat is concerned, in the matter-in-hand the petitioner/plaintiff had filed two separate suits in respect of two mutations both executed in favour of the respondent/ defendant. The other Mutation No.6387 dated 31-1-2006 is the subject matter of the connected C.R. No.413 of 2011. However, in a stereotype manner, in both the suits the petitioner/plaintiff averred that he came to know about the sale of the suit property on 27-3-2006 at 5 p.m. at his baithak through Muhammad Yousaf son of Abdullah. As is evident from the contents of the two plaints, the petitioner/plaintiff never simultaneously performed Talb-e-Muwathibat in respect of both the mutations in quick succession but rather averred that at 5 p.m., he performed Talb-e-Muwathibat on being informed by Muhammad Yousaf meaning thereby that only one talb was made. Thus of the two mutations, which one preceded the other in respect of performance of Talb-e-Muwathibat or was it that only one talb was made by the petitioner/plaintiff leaves much to be desired and rather raises serious question marks about such Talb in respect of both the mutations. By way of damage control, while recording his statement as P.W.6, the petitioner/plaintiff alleged that he was informed about the two mutations by the informer and he accordingly performed the Talb-e-Muwathibat. Though trying to play smart, but still he missed to mention that he made two talbs in respect of the two mutations. Even otherwise, through the said statement, the petitioner/plaintiff contradicted the averments in the plaint and, therefore, it is held that he did not perform the Talb-e-Muwathibat in respect of either of the two mutations within the mandate of law.

8. The petitioner/plaintiff had also failed to prove Talb-e-Ishhad. In his examination-in-chief, he stated that the notice of Talb-e-Ishbad was sent to the defendant through registered post but in cross-examination he changed his version by stating that it was handed over to Munir Ahmad for posting and he was not certain as to whether Muhammad Munir had sent the same or not. Munir Ahmad on his turn while recording his statement further materially contradicted the petitioner/ plaintiff by stating that after signing the notice, he went to his house and not to the post office. The plaintiff is further contradicted by P.W.5 Muhammad Yousuf Qureshi who in his examination-in-chief stated that he signed the notice of Talb-e-Ishhad on 30-3-2006 but again stated that it was written by the petition writer on 30th or 31st March and that he did not remember the exact date. Likewise, P.W.1 Muhammad Ramzan, Record Clerk of GPO D.I.Khan also did not support the petitioner/plaintiff who stated that the AD card Exh.P.W.1/2 did not bear the name and address of the person to whom it was sent and he had neither booked the same nor delivered it and he could not say as to what was there in the envelope.

9. From the above narration it is clear that the plaintiff/petitioner had not performed and proved both the talbs according to law and thus his suit was rightly dismissed by both the courts below through the impugned judgments and decrees.

10. Even otherwise, the concurrent findings of the courts below based on/facts cannot he set at naught by this court in exercise of its revisional jurisdiction unless it is established through cogent and tangible evidence available on record that the same are either perverse, fanciful or are based on non-reading/ misreading of material evidence in view of the dictum handed down by the apex court in the judgments reported as 2000 SCMR 346, PLD 1994 Supreme Court 291 and PLD 2002 Supreme Court 293.

11. For the reasons stated above, I find no substance in this revision petition which is accordingly dismissed in limine. JJK/80/P Revision dismissed.