2013 PLP 2663 (YLR)

ROOH-UL-AMIN KHAN, J.

Through instant revision petition, the petitioner has challenged the judgment and decree of the learned District Judge Bannu, dated 14-12-2011, whereby the judgment and decree of the learned Civil Judge-XI, Bannu dated 20-12-2010, was set aside and petitioner's pre-emption suit was dismissed.

2. In the backdrop of instant revision petition there is a pre-emption suit filed by the plaintiff/pre-emptor Shafiullah Khan (petitioner herein) against the defendants-vendees (respondents herein) qua sale of a shop, fully described in the preamble of the plaint. Perpetual mandatory injunction has also been sought in the plaint. As per averments in the plaint, the petitioner/pre-emptor initially get knowledge that suit shop has been sold by defendant No.3 to defendants Nos. 1 and 2 hence, on 19-10-2006, he sent notice Talb-e-Ishhad to defendant No.2, who also happens to be the father of defendant No.1. Before filing of the instant suit, the petitioner contacted defendant No.2 through Rehmatullah, on the basis of which, he on 1-12-2006, (Friday) at 11-00 a.m. in his shop, through Rehmatullah, in presence of Saifullah Khan, came to know that the suit shop has been sold out/transferred in the name of Nek Muhammad Khan (defendant No.1) and he immediately performed Talb-e-Muwathibat there and then in the same sitting. Later on, in confirmation of the first Talab, he sent notice Talb-e-Ishhad on 4-12-2006, through registered letter AD to the vendees-defendants.

3. The averments of the plaint were controverted by the defendants-vendees in their written statement, which necessitated the framing of issues. Parties adduced their evidence in support of their respective stance. On conclusion of trial, suit of the petitioner/pre-emptor was decreed by learned Trial Court. Defendant No. 1/vendee, filed appeal against the judgment and decree of the Trial Court, while plaintiff/pre-emptor filed cross-objection. The appeal filed by vendee-defendant was allowed, the impugned judgment and decree of the trial Court was set aside and consequently, the suit of the petitioner/pre-emptor was dismissed while the cross-objection of the, petitioner/pre-emptor was dismissed. Hence, this revision petition.

4. I have heard the exhaustive arguments of the learned counsel for the parties and have gone through the record.

5. A look over the plaint would reveal that there are two versions qua sale of the suit shop i.e. initially the petitioner allegedly came to know about sale of the suit shop by defendant No.3 in favour of defendants Nos.1 and 2, as a consequence whereof, as manifest from the Para No.2 of the plaint, the petitioner sent a notice to defendant No.2 on 19-10-2006, and secondly, on 1-12-2006 at 11-00 a.m. on Friday, through Rehmatullah, in presence of Saifullah, he came to know that the suit shop has actually been purchased by defendant No.1, so he there and then immediately performed Talb-e-Muwathibat. About the first version, the petitioner has not stated a single word about performance of Talb-e-Muwathibat in his plaint. A look over his statement recorded as (P.W.8) would reflect a complete deviation of the pre-emptor from his earlier stance. In the plaint there is not a single word to show that on 18-10-2006, when the pre-emptor came to know that the suit shop has been purchased by defendant No.3, he declared his intention to pre-empt the suit transaction, in presence of Saifullah Khan and Rehmatullah. Whereas, in his statement at the very initial part, he has stated about the performance of Talb-e-Muwathibat on 18-10-2006. If we take the second version of the pre-emptor, according to which, he on 1-12-2006 (Friday) at 11-00 a.m., was informed by Rehmatullah, in presence of Saifullah qua sale of the suit shop to defendant No.1, then he has not specifically mentioned the place of performance of Talb-e-Muwathibat in his Court statement. It reflects from the plaint, the petitioner came to know through Rehmatullah that defendant No.3 has sold out the suit shop to defendant No.1, but contrary to it, in his statement the pre-emptor has stated that Sahib Noor defendant No.3 told him about purchase of the suit shop by his son defendant No.1. In these circumstances, Rehmatullah would not be the informer rather it would be defendant No.3, who informed the pre-emptor and the pre-emptor ought to have performed the first jumping demand in his presence, but such is not the case herein. The statement of the petitioner further contradict his version in the plaint, according to which initially he was informed by Rehmatullah about sale of the suit shop by defendant No.3 Sahib Noor, whereas in his statement he deposed that he came to know about sale of the suit shop through people. Rehmatullah informer was examined in support of claim of the petitioner. According to his statement, he after getting knowledge about sale of the suit shop by Sahib Noor defendant No.3, he conveyed the same to Shafiullah, who was sitting in his shop with Saifullah and he there and then declared his intention to pre-empt the suit sale. Thereafter, they all the three visited the suit shop and went to the house of Sahib Noor to convince him about the right of pre-emption of the petitioner over the suit shop, but he refused and on the next day i.e. 19-10-2006, notice Talb-e-Ishhad was drafted. Whereas, not a single word has been stated by the petitioner qua their visit to the house of defendant No.3. Moreover, the informer in his statement has not mentioned the date, and time when he came to know through defendant No.3 that he has received the notice and that actually the suit shop has been purchased by defendant No.1. The informer in his statement has mentioned that after few days Sahib Noor met him and told about the factum of sale of the suit shop by defendant No.1. The date of first knowledge about sale of the suit shop, as evident from record is 18-10-2006, so these few days, even if for the sake of arguments are taken, it may be a week, ten days and even if we take the same upto 29 days, the second information about the suit sale should be in the month of November, but the date mentioned in the plaint is 1-12-2006 Thus, these few days cannot be stretch from 18-10-2006 to 1-12-2006.

6. Saifullah witness of notice Talb-e-Ishhad has been examined as P.W.10. He has furnished quite different story about the episode occurred after performance of Talb-e-Muwathibat. According to him, the pre-emptor after performance of Talb-e-Muwathibat in his presence as well as in presence of informer Rehmatullah, they all the three visited the suit shop and went to the house of Nek Muhammad and requested him to withdraw from the suit sale, but he refused. Statement of the pre-emptor and informer Rehmatullah, reflect no such visit to the house of Nek Muhammad, rather according to Rehmatullah they visited the house of Sahib Noor after performance of Talb-e-Muwathibat by the pre-emptor. No such visit is evident from the statement of Saifullah witness of notice Talb-e-Ishhad. So which of the three versions is correct, would be best known to the P.Ws., however, creates doubt about credibility and veracity of the witnesses that they are not truthful.

7. For successful exercise of right of pre-emption, the proof of superior right of pre-emption, performance of Talb-e-Muwathibat and then Talb-e-Ishhad, in their respective chronological order, are sine qua non. If the case of the pre-emptor is deficient of any one of these legal requirements, his suit is bound to fail. No doubt, the petitioner/pre-emptor has given detail about the date, day, time and place of performance of the first requisite Talb viz Talb-e-Muwathibat, but mere mentioning of all these details in the plaint would not be sufficient to prove the stance of the petitioner unless proved through cogent, coherent and confidence-inspiring evidence. The performance and proof of Talb-e-Muwathibat, is not a mere technicality. The right of pre-emption is not activated unless Talb-e-Muwathibat is performed. The principles set by the Hon'ble Supreme Court in Mian Pir Muhammad's case (PLD 2007 SC 302), are not meant just to mention the details of date, time and place of performance of Talb-e-Muwathibat in the plaint, but it is also requirement of the law, as per the ratio of the judgment (supra), that these details, must be proved through cogent evidence in the Court. The requirement of mentioning of all the details in the plaint is imperative, so that the pre-emptor may not improve his case during the trial, or to make a departure from his pleadings. The right of pre-ratio of the judgment (supra), that these details, must be proved through cogent evidence in the Court. The requirement of mentioning of all the details in the plaint is imperative, so that the pre-emptor may not improve his case during the trial, or to make a departure from his pleadings. The right of pre-emption being a feeble right is to be proved strictly in accordance with law, with cogent, coherent and trustworthy evidence.

8. For what has been discussed above, the petitioner/pre-emptor has failed to prove performance of the first mandatory Talb which play the role of ignition in combustion the engine of pre-emption. It is settled law that the pre-emptor might be clothed with superior right of pre-emption but he would be non-suited, if he, fails to prove performance of Talb-e-Muwathibat and Talb-e-Ishhad. For successful exercise of right of pre-emption, the proof of superior right of pre-emption, performance of Talb-e-Muwathibat and then Talb-e-Ishhad, in their respective chronological order, are imperative. If the case of the pre-emptor is deficient of any one of these legal requirements, his suit is bound to fail, which is the case of present petitioner.

9. For the reasons discussed above, the learned Appellate Court was justified in setting aside the judgment and decree of the learned trial Court and dismissing the suit of the petitioner. There is no illegality or any irregularity which may warrant interference of this Court in its revisional jurisdiction. Accordingly, this petition stands dismissed. JJK/388/P Petition dismissed.