Suit for possession through pre-emption

Mere construction of a retaining wall or possession over part of a separate khasra cannot establish contiguity unless the appellant had ownership of the intervening land, which he did not

Claim of appellant being Shafi Jaar was contradicted by the physical layout of the land, as the appellant's land was at a higher elevation than the water channel making irrigation from a common source impossible

Informer was never produced before the Trial Court, which omission was neither explained nor justified

Importance of the informer's evidence could not be ignored, as it formed the basic foundation for the performance of Talb-i-Muwathibat

Without evidence of informer, the appellant's version regarding the time, place and manner of acquiring knowledge of the sale remained uncorroborated

Non-production of the informer may be fatal and may result in an adverse inference being drawn against the pre-emptor

Requirement of Talb-i-Muwathibat under Section 13 of the Act, therefore, remained unproved

High Court rightlyset aside the concurrent findings of the courts below regarding Talb-i-Muwathibat in its revisional jurisdiction.

Revisional court overturned the decision of the Appellate court while observing that Talb-i-Muwathibat remained unproved

Validity

Informer was never produced before the trial court throughout the proceedings without any explanation

Omission to produce the informer through whom knowledge of the sale was acquired was a significant shortcoming in the evidentiary chain

Requirement of Section 13 of the KPK Pre-emption Act, 1987, (Act) was not merely procedural but foundational for enforceability of the right of pre-emption, which mandated that the first demand (Talb-i-Muwathibat) be made immediately upon acquiring knowledge of the sale and be proven through unimpeachable evidence

Appellant's version remained uncorroborated for the most critical point that how and when he came to know about the sale

Lapse of more than three months between the date of mutation and the claimed knowledge further undermined the promptness and credibility of the alleged Talb

Without evidence of informer, appellant's version regarding the time, place and manner of acquiring knowledge of the sale remained uncorroborated

Supporting witnesses might have been present at the time of the alleged declaration/demand, but in the absence of the informer himself, the requirement of immediacy and authenticity under Section 13 of the Act remained unproven

Non-production of the informer may be fatal and may result in an adverse inference being drawn against the pre-emptor

Appellate Court's findings on the issue of Talb-i-Muwathbat were a result of misreading of evidence, thus, were liable to be set aside

High Court, in correcting that error, acted well within its powers under its revisional jurisdiction

Revisional Court is fully empowered under Section 115, C.P.C., to do so where such findings are based on misreading, non-reading, or misinterpretation of the evidence on record

Civil Appeal was dismissed, in circumstances.

Suit filed by petitioner / plaintiff was dismissed by Trial Court and the judgment was maintained by Lower Appellate Court

Validity

Evidence produced by parties had rightly led two Courts to believe that there were incurable dents in the evidence of petitioner / plaintiff

High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below

High Court in exercise of revisional jurisdiction was not supposed to reach at a different conclusion on re-appraisal of evidence, particularly when there was no case of misreading or non-reading of evidence on the issue of performance of Talb-i-Muwathibat

Revision was dismissed in circumstances.

More than sufficient opportunities were granted to petitioner / plaintiff for producing his evidence and despite putting him under caution he did not bother to avail the same

Such indolent person(s) could not be allowed to play with the process of Court and linger on the matter on one pretext or the other, that too, without any plausible and valid reason

Petitioner was granted with absolutely last and final opportunities for production of his evidence with clear cut warnings but the petitioner did not pay any heed to such orders and direction of Trial Court

Such act of petitioner / plaintiff showed his adamant attitude towards the orders of Trial Court

Supreme Court declined to interfere in the orders passed by all Courts below

Petition for leave to appeal was dismissed and leave to appeal was refused.

Pre-emptor was required under Section 13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987, to make Talb-i-Ishhad soon after making of Talb-i-Muwathibat, not later than two weeks from the date of knowledge, by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to vendee, confirming his intention to exercise right of pre-emption

Merely sending a notice in writing without establishing that such notice had been duly served upon vendee under registered cover acknowledgment due did not meet the requirement of law

Notice issued by petitioner / pre-emptor to respondent / vendee did not contain correct number of mutation

High Court was justified to conclude that petitioner / pre-emptor did not perform Talb-i-Ishhad against respondent / co-vendee with regard to property purchased through mutation

It had become partial pre-emption and bar on such pre-emption case in terms of Section 19 of Khyber Pakhtunkhwa Pre-emption Act, 1987, was also attracted

Such omission by pre-emptor constituted waiver on the part of pre-emptor to pre-empt sale in view of Section 15 of Khyber Pakhtunkhwa Pre-emption Act, 1987

Supreme Court declined to interfere in judgments and decrees passed by the Courts below

Petition for leave to appeal was dismissed and leave to appeal was refused.

Sale in question was completed but petitioners/pre-emptors failed to file their pre-emption suit under section 31(d) of Khyber Pakhtunkhwa Pre-emption Act, 1987

Suit of petitioners/plaintiffs was rightly dismissed by two Courts below as it was barred by limitation

Petitioners/pre-emptors had knowledge of sale much prior to alleged date of knowledge as shown in suit

Such blunder was a stumbling block in the way of petitioners/pre-emptors to exercise their right of pre-emption

Supreme Court declined to interfere in judgments and decrees passed by High Court and Lower Appellate Court, as petitioners/pre-emptors failed to establish their first jumping demand of Talb-i-Muwathibat and such deficiency alone was sufficient to disentitle them from exercise of their right of pre-emption

Petition for leave to appeal was dismissed and leave to appeal was refused.

For ascertaining right of pre-emptor as being Shafi Sharik under the law requirement was that the pre-emptor must be co-owner in the corpus of the undivided immovable property sold to other person

Term co-owner in the corpus of undivided immovable property was a different term than co-owner in the Khata

Entire Khasra could not be taken as a corpus particularly when the nature of property had been changed into Abadi at the spot, which was in possession of different persons

Ownership in a specific Khasra number, does not automatically make a co-owner to be a Shafi Sharik in the pre-empted land

Pre-emption is a right of substitution and once it is established that pre-emptor remains no more co-owner and also no contiguity exists, the suit would not be maintainable

Petitioner did not have right to pre-empt the suit property within the contemplation of S. 6 of the Khyber Pakhtunkhwa Pre-emption Act, 1987

Civil revision was dismissed, in circumstances.

Claim of the respondent/subsequent purchasers was that requisite Talbs were not performed by the petitioner qua the subsequent purchase despite the fact that sale deed was executed prior to performance of all Talbs upon the first purchaser

Plea of the petitioners was that since the sale deed was registered after the performance of the Talbs, therefore, it took effect from the date of its registration instead of execution

Validity

Petitioner allegedly performed the requisite Talbs i.e. Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusamat before the registration of sale deed executed in favour of subsequent purchasers/ respondents, but admittedly said Talbs were performed after execution of the sale deed

Provision of S.52 of the Transfer of Property Act, 1882, would be attracted only and only when the lis was pending, however, the further sale made by the vendee prior to the institution of pre-emption suit could not be brought within the four corners of lis pendens and such further sale would be a new transaction, thus, the petitioner, if interested in pre-empting the said sale, should have instituted a suit against the latest sale, instead of the previous one

Although the sale deed was incomplete till the formality of registration had been gone through, but once that requirement was fulfilled the sale took effect from the date of its execution, thus, in view of S.47 of the Registration Act, 1908, its application could not be confined only to the parties to the document, rather it equally applied to a third person or for that matter to a pre-emptor

Civil revision was dismissed, in circumstances.

Existence and enforcement of right of pre-emption are two distinct and different phenomena and merely having a superior right of pre-emption by itself is not sufficient to succeed in a suit for pre-emption

Pre-emptor has to establish the performance of necessary Talbs as required under S. 13 of the Act in order to succeed in a suit for pre-emption

Pre-emptor received information through PW.2 on 17.02.2011 at 10:00 a.m., when he was present in his house in presence of PW.3, however, while appearing as PW.1 the pre-emptor did not mention the time on which information was received from PW.2

Pre-emptor in his plaint stated that he attained knowledge about the sale of the suit land while sitting in his house, but plaint was silent about the exact portion of the house, which was a vast place and non-mentioning of the exact portion by itself was fatal to right of pre-emption

PW.3 did not make clear statement about the place of Talb-i-Muwathibat

PW-3 in his statement only deposed about the date of Talb-i-Muwathibat and did not state about the month and year regarding such material fact, which was fatal for pre-emption suit

Concurrent findings arrived at by both the courts below were based on proper appraisal of evidence and there was no misreading or non-reading of evidence on part of any of the court below

Revisional jurisdiction is to be exercised by High Court while keeping in view the principles enshrined in S .115 of the C.P.C.

Civil revision was dismissed, in circumstances.

Where a pre-emptor dies after making any of the demand under S. 13 of the Punjab Pre-emption Act, 1991, (Act), the right of pre-emption shall transfer to his legal heirs.

Petitioner/vendee was aggrieved of judgment and decree passed by Lower Appellate Court whereby suit was decreed in favour of respondent/pre-emptor

Validity

Record reflected that no date of Talb-i-Ishhad was mentioned in the plaint, which made it uncertain whether the same was made within two weeks as required under S.13(3) of the Act

Non-mentioning of exact time of notice of Talb-i-Ishhad in the plaint was fatal for the cause of the respondent/plaintiff

As borne out from the evidence, the fulfillment of condition of Talb-i-Ishhad, by way of service of notices, got sketchy, inter-alia, in terms of statement made by postman

Talb-i-Ishhad was to be established by way of a solid piece of evidence led by the respondent/plaintiff

Plaint did not disclose any details regarding Talb-i-Ishhad with respect to its performance, which was fatal to the case of the respondent/plaintiff

Admittedly, the petitioners/defendants were minors

Statement of post man did not mention as to where the service was made on the said minors, or it was made on anyone else on their behalf, nor was there any endorsement of refusal on the envelope or the acknowledgment due

Respondent/plaintiff admitted that the original notices were not sent

According to the statements of witnesses, the notices were written by hand

Talb-i-Ishhad or demand by establishing evidence means calling of two witnesses by pre-emptor to attest his making of the first demand/ Talb-i-Muwathibat in order to strengthen his claim of pre-emption

Mandatory upon the pre-emptor to have stated the names of witnesses for Talb-i-Ishhad in the plaint and then prove their attestation by producing them in the Court

From the perusal of the plaint, it appeared that no such disclosure had been made by the respondent/plaintiff

Said omission was again fatal to the claim of the respondent/plaintiff

Respondent/plaintiff (pre-emptor) had failed to prove performance of the essential conditions attached to the exercise of right of pre-emption

As a result, claim of pre-emption could not hold field for not having qualified the mandate of law under the Act, in terms of making of Talbs

Consequently, civil revision was allowed, accordingly.

Petitioner/vendee was aggrieved of judgment and decree passed by Lower Appellate Court whereby suit was decreed in favour of respondent/pre-emptor

Validity

As regards the first Talb i.e. Talb-i-Muwathibat, statement of pre-emptor was relevant wherein he admitted in cross-examination that he had gained knowledge of the sale after filing of the suit

Pre-emptor also admitted that he had filed another suit for pre-emption against the petitioners/defendants

Said stance of the respondent/plaintiff as to knowledge was corroborated by the informer

According to the statement of informer, the knowledge about the sale was gained about 4.5 years ago

Said statement was made by informer on 16.02.2012

Thus, if time was calculated from the date of statement, it would come around 16.07.2007, which furnished a ground to believe that no meeting was held for Talb-i-Muwathibat and it was not performed

Possession of the suit property was delivered on the date of sale, which was a notice to public at large

Hence, the pre-emptor had, for all practical purposes, gained the knowledge immediately but did not make a jumping demand

Such delay was fatal to a successful claim of pre-emption

Respondent/plaintiff (pre-emptor) had failed to prove performance of the essential conditions attached to the exercise of right of pre-emption

As a result, claim of pre-emption could not hold field for not having qualified the mandate of law under the Act, in terms of making of Talbs

Consequently, civil revision was allowed, accordingly.

Respondent intentionally mentioned a lower price of the suit property in order to obtain an undue advantage and when an undue advantage is sought to be gained on the basis of a completely unsubstantiated statement, the same is not permissible as it can contravene the provisions of Shari'ah which have been made specifically applicable to pre-emption cases and it would disentitle a Shafi to claim pre-emption

Civil revision was allowed, in circumstances.

Plaintiff/pre-emptor is required to deposit the 1/3rd amount within 30 days from the date of filing/ institution of suit.

One of the pre-emptors announcing his right to exercise right of pre-emption one or two minutes after the other pre-emptor

Delay of one or two minutes in the making of Talb-i-Muwathibat by one of the pre-emptors

Effect

Fatal for the pre-emption suit

Record of the present case showed that one of the pre-emptors waited for the other pre-emptor to complete his declaration of Talb-i-Muwathibat before making his own declaration, resulting in a brief delay of one or two minutes

As soon as the pre-emptors acquire knowledge of the sale of the pre-empted property, they should make an immediate demand of their desire and intention to assert their right of pre-emption without the slightest loss of time

Pre-emptor in question failed to prove the validity of his Talb-i-Muwathibat for exercising his right of pre-emption over the suit land

Petition was converted into appeal and allowed and judgment of the trial Court dismissing the suit of pre-emptors was restored.

One of the pre-emptors did not appear as a witness before the trial court to substantiate his claim nor did he attempt to produce an attorney on his behalf

It was also not the case of said pre-emptor that he was suffering from some disability to appear before the court

Therefore, his failure to appear in the witness box would adversely affect his right of pre-emption

Clearly the evidence of said pre-emptor, which would have been the best evidence has been withheld by the pre-emptors

Consequently, in accordance with Article 129(g) of the Qanun-e-Shahadat, 1984, an adverse inference can also be drawn against him

Although one of the pre-emptors appeared as a witness, but it did not provide any help to the pre-emptor who did not appear

Suit, to the extent of non-appearing pre-emptor, is liable to be dismissed, therefore, no partial or full decree can be passed in favour of the other pre-emptor

Petition was converted into appeal and allowed and judgment of the trial Court dismissing the suit of pre-emptors was restored.

Person who conveys the information of the fact of sale must be a person who has observed the fact of sale and it is he who can then pass on the said fact to another person(s)

Thus, the chain of information regarding the sale, starting from the very first person with direct knowledge and passing it on to the person who lastly informs the pre-emptor, must be complete

Only the complete chain of the source of information of the sale can establish the essential elements of Talb-i-Muwathibat, which are: (i) the time, date and place when the pre-emptor obtained the first information of the sale, and; (ii) the immediate declaration of his intention by the pre-emptor to exercise his right of pre-emption, then and there, on obtaining such information

In the present case, such chain of the source of passing on the information, as to the fact of the sale of the suit land has not been proved as person "B" in his evidence categorically stated that he refused to meet and share the information about the sale of the suit land with the informer

Entire case of the pre-emptors (respondents) regarding the issuance of Talb-i-Muwathibat built on the hearsay evidence of the informer faIls to the ground due to an incomplete chain of information about the sale of the suit land

Therefore, the trial court correctly observed that when the source of information provided by the informer is not proved, the transmission of this information to the pre-emptors also becomes highly doubtful

Pre-emptors failed to prove the validity of Talb-i-Muwathibat made by them for exercising their right of pre-emption over the suit land

Petition was converted into appeal and allowed and judgment of the trial Court dismissing the suit of pre-emptors was restored.

Tendering of the notice of Talb-i-ishhad through a printed format/pro forma does not fulfill the conditions laid down under section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.

Sale, as per the definition provided in section 2(d) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, does not include a gift

In the present case, the land was first sold to "M", and before this sale could be pre-empted by the respondent (pre-emptor), it was further transferred to "M's" sons (present appellants) by way of gift mutation

Person is entitled to evade law of pre-emption by all lawful and legitimate devices, like gift, exchange etc.

So, in the given circumstances of the case, respondent (pre-emptor) could not ignore the gift mutation while making his demand

Appropriate course for him was to say, firstly, that the second transaction was a sale (dubbed as a gift), meant to defeat his right of pre-emption; and secondly, that he had made all the requirements of Talbs regarding the second transaction

On the contrary, a perusal of the contents of the plaint showed that neither any Talb was made to pre-empt the second transaction nor any notice of Talb-i-ishhad was sent to the present appellants, which was fatal for his case

Appeal was allowed, and order of Revisional Court, whereby it rejected the plaint of the respondent, was restored.

Suit filed by plaintiff for possession of suit land through pre-emption being contiguous owners in possession to the suit property was dismissed

Plaintiff filed an appeal but it was met with the same fate

Validity

Record reflected that the petitioner got knowledge of the sale in question on 12.07.2011 at 06.30 p.m. in his baitak after performing Asar prayer through Mr. "K" in the presence of two witnesses

Petition alleged that he performed Talb-e-Muwthibat soon thereafter

In that regard, petitioner No. 2 deposed that on 12.07.2011, he after performing Asar prayer in his Masjid at 06.30 p.m., straightaway went to his baitak

In those days, Asar prayer timing was 6.30 p.m.

Said petitioner took 4 or 5 minutes in performance of prayer and took 05 minutes on the way to his baitak from the Masjid

Said petitioner after shaking hands with the guests, went to his house for bringing tea

Other witness deposed that on the day of Talb-e-Muwathibat, he performed Asar prayer in his house at 06.00 p.m. as in those days Asar prayer time in the Masjid was 05.45 p.m. and when he reached the baitak at 06.15 p.m., three persons including two petitioners were present there and none else was there until they left the baitak

Informer deposed that he got knowledge of the pre-emption sale from Mr. "A"

Said witness performed Asar prayer in the Masjid at 06.00 p.m. and then went to the baitak of petitioners

Distance in between the Masjid and baitak was 20 minutes

Informer after shaking hands with the inmates of the baitak drank water and then informed them of the pre-emption sale

Said contradictions and discrepancies suggested that the petitioners could not substantiate their case with regard to the performance of Talb-e-Muwathibat through firm, reliable, cohesive, and trustworthy evidence

Appeal was dismissed, in circumstances.

Suit filed by plaintiff for possession of suit land through pre-emption being contiguous owners in possession to the suit property was dismissed

Plaintiff filed an appeal but it was met with the same fate

Validity

Respondents had clearly denied the performance of Talb-e-Ishhad, whereas, it was the duty of petitioners to establish the factum of Talb-e-Ishhad through reliable and trust worthy evidence but the petitioners/pre-emptors failed to do so as no notice was received by the respondents/vendee

General law of "service by post" was not applicable in respect of pre-emption as the same was attended to by the specific law on the subject, i.e., S. 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, ('Act, 1987') which 'stipulated registered cover acknowledgment due' and not just dispatched by registered post

Vendee/respondent had denied receipt of the notice of Talb-e-Ishhad

Postman produced receipts of registries regarding the dispatch of notice of Talb-e-Ishhad but during his cross-examination, he showed ignorance as to whether the referred registries had been received by the respondent or not

No proof was on record that the notices of Talb-e-Ishhad had been served upon the vendees/ respondents in accordance with law, as the pre-emption was attended to by its own law, which provided the manner for sending notices

General law as contained in S. 26 of the General Clauses Act, 1956, would not be applicable

Section 13(3) of the Act, 1987, stipulated "under registered cover acknowledgment due, whereas, the words "acknowledgment due" were not mentioned in S. 26 of the General Clauses Act, 1956, applicable to the Province of Khyber Pakhtunkhwa

Even, the petitioners/pre-emptors had not exhibited the alleged notices of Talb-e-Ishhad in their evidence and only attached its photocopy which could not be legally considered, whereas, the statements of alleged witnesses of Talb-e-Ishhad notices were contradictory, and not believable

Appeal was dismissed, in circumstances.

Respondents / plaintiffs claimed their superior right of pre-emption on the basis of co-sharers of the estate in the village

Judgment and decree passed by Trial Court was maintained by Lower Appellate Court

Validity

No one could be held guilty without any proper inquiry, scrutiny and providing him/her fair opportunity to plead and defend his/her case

Without any such inquiry the appellants/defendants were held culprits of tampering with thumb impressions of respondents/plaintiffs on the plaint and Wakalat Nama

Such practice could not be stamped by endorsing the same and no one could be held responsible until and unless a thorough inquiry into the matter was carried out

Veracity of documents in question were disbelieved and discredited due to the observations with regards to super imposing of thumb impressions

Such observations were based on self-conceived and biased approach, without any backing i.e. findings on the basis of thorough inquiry into the matter

High Court declined to approve findings germane to the documents as Lower Appellate Court while passing judgment and decree failed to exercise vested jurisdiction as per mandate of law and had totally misread evidence on record and had committed illegalities

High Court set aside judgment and decree and remanded the appeal to Lower Appellate Court for its decision afresh

Second appeal was allowed accordingly.

No partial decree is possible in a pre-emption suit as the right of pre-emption is one of substitution, even in the case of pre-emption under statute law, unless the statute itself has made a departure in this regard to any extent

From the doctrine that the right of pre-emption is one of substitution it follows that, unless the statute conferring the right of pre-emption otherwise provides, the pre-emptor must take over the whole bargain, that is to say, the pre-emptor must seek pre-emption of the whole of the subject-matter of the sale and pay the entire price paid by the vendee as consideration

This, however, is subject to certain limitations which, at any rate, do not include the vendor's defective or want of title

Pre-emptor is not bound to seek pre-emption of the whole of the property sold and pay the full sale price if his right of pre-emption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not

In case of any such limitation, partial pre-emption on payment of proportionate price may be permitted as of necessity and not because the pre-emptor wants it.

Petitioner (pre-emptor) produced two witnesses before the Trial Court to establish Talb-i-Muwathibat, however neither of the two witnesses deposed regarding the date on which the petitioner made Talb-i-Muwathibat

On of them also deposed that he was not aware of the other witnesses/signatories to the notice of Talb-i-Ishhad, and merely speculated as to who they could be, and was unaware of the contents of the notice and its recipients

Moreover, neither of the two witnesses deposed any specific date on which Talb-i-Ishhad was made

No receipt of acknowledgement due was produced in evidence, nor was any evidence or witness brought to show that the respondents (vendees) had refused to be served with the notice

It was for the petitioner to produce the postman during the evidence stage in order to establish the factum of Talb-i-Ishhad, which he failed to do

Suit for possession through pre-emption was rightly dismissed

Petition for leave to appeal was dismissed and leave was refused.

Mere signing and sending a notice to the vendee without confirming the intention to exercise the right of pre-emption is not sufficient for purposes of making Talb-i-Ishhad.

It is mandatory for the plaintiff/pre-emptor to state the names of the witnesses for Talb-i-Ishhad in his plaint and then prove their attestation by producing them in Court.

Benefit of such omissions must go to the vendee.

Such right is strictissimi juris (strict rule of law) and the slightest deviation from the formalities required by law will prevent its accrual.

In the present case the notice of Talb-i-Ishhad did not bear the signature or thumb impression of any of the pre-emptors/plaintiffs, but the signatures of both the witnesses and the counsel for the plaintiffs were there

Talb-i-Ishhad can be done by an agent, as provided in section 14 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, but this is only an exception in the case of person who is unable to make the demand personally

Such exception cannot supersede the general rule

In the present case the pre-emptors/plaintiffs could not be allowed to avail themselves of this exception as it required them to prove two things: first, what was the disability which prevented them from making the demand themselves?; and second, was the agent specifically authorized to do so in explicit terms before making the demand

Evidence brought on record showed that the pre-emptors/plaintiffs were not suffering from any disability due to which they could not make a demand on their own

On the contrary, the statement of the one of the pre-emptor/plaintiff proved that he himself first made the Talb-i-Muwathibat and later he himself went to the lawyer and got the notice written

Same statement of the plaintiff also unfolded that no express authority was given to the lawyer before making the Talb-i-Ishhad

Such deficiency was sufficient to dismiss the pre-emption suit

Appeal was dismissed.

If performance of a single Talb is skipped or not proved, the superstructure and edifice of the suit for possession through pre-emption falls on the ground.

In the present case to prove the notice of Talb-i-ishhad, although the plaintiff/pre-emptor had produced the Postman, however, a bare perusal of his statement showed that the notices were not directly delivered to the defendants/vendees "T" and "R"

Postman stated that it was defendant/vendee "B" who had received the notices on behalf of the other two defendants/vendees

Similarly, the notice sent to defendant/vendee "AJ" was received by another defendant "AG"

Such fact was also admitted by the plaintiff himself in his amended suit filed by him before the learned Trial Court

Suit for possession through pre-emption had been rightly dismissed

Appeal was dismissed.

Service of Talb-i-ishhad is a pre-requisite and if the performance of the same is not proved beyond any shadow as well as in the prescribed form, then the whole structure falls on the ground.

Suits filed by rival pre-emptors were dismissed by Trial Court but Lower Appellate Court allowed the appeals and decreed the suits under the provisions of S.20 of Khyber Pakhtunkhwa Pre-emption Act, 1987

Validity

Power of attorney did not reflect a valid reason which could be considered as a justification for appearing of attorney for pre-emptors instead of their personal appearance in witness box

No plausible reason or explanation was mentioned in power of attorney

Attorney was allegedly witness of Majlis where first Talb was made by pre-emptors and said attorney could depose to substantiate contentions of pre-emptors

Without any valid reason or justification attorney could not appear as witness to prove Talb-i-Muwathibat by pre-emptors

Both pre-emptors did not explain in plaint that who made Talb-i-Muwathibat first followed by the latter

Pre-emptors were required to make a specific reference pertaining to date, time and place of their Talb

Due to non-appearance of pre-emptors personally in witness box and that too without any valid reason/justification, they failed to make Talb-i-Muwathibat, which was root for suit of pre-emption

High Court in exercise of revisional jurisdiction set aside findings of Lower Appellate Court as the same were result of misreading and non-reading of record/evidence and misapplication of law and dismissed the suits filed by respondents/pre-emptors

Revision was allowed, in circumstances.

There was no reasonable ground available to petitioner/plaintiff for non-production of those documents during trial of the suit

Petitioner/plaintiff was conscious of the questions involved in the suit but he did not produce documents in question

No explanation was offered by petitioner/plaintiff that why evidence which was sought to be produced before High Court for the first time was not tendered before Trial Court

Discretion of Court should not be exercised in favour of a person who had remained indolent for years and such person should suffer consequences of his failure

Petitioner/plaintiff failed to take any step to produce evidence in question for so many years

High Court declined to exercise discretion under O. XLI, R. 27, C.P.C., in favour of petitioner/ plaintiff as he lacked vigilance which lasted for years

Documents in question were not required by Court to decide the lis on merits and to reach a just conclusion

Petitioner/plaintiff failed to prove his right of pre-emption as suit property had changed its character from agricultural land to commercial factory land

Right of pre-emption was only to safeguard privacy of Muslim families and the same could not be enforced in case of commercial property

Question of disagreeable neighbours in such cases did not arise

Suit land was a Sakni land therefore petitioner/plaintiff could not assert to be one of proprietary bodies of the village or owner in the estate in order to claim right of pre-emption

There was no evidence on record which suggested that custom of pre-emption existed in town/sub-division

High Court declined to interfere in judgment and decree passed by Lower Appellate Court

Revision was dismissed, in circumstances.

If acknowledgement card carried an endorsement of "refusal" or "not accepted" a presumption of service would arise unless rebutted

It was duty of pre-emptor to have produced postman through whom notice was allegedly served upon the vendee to prove that notices were actually sent to him at the right address and he received it or refused to receive it

In order to establish Talb-i-Ishhad, pre-emptor had to prove that notice was sent to vendee through registered post acknowledgement due card and its acknowledgement receipt was received by respondent/pre-emptor after its service on appellant/vendee

Only sending of notices through registered envelope was not sufficient

Intention of law was to ensure that notices were sent to proper address and "served" or "not served" report would show that condition of Talb-i-Ishhad was fulfilled or not

Lower Appellate Court did not rightly conclude issues on the basis of available record and evidence was not properly appreciated

Some of the documents and statements were not only misinterpreted but also were overlooked by lower Appellate Court

Issue regarding Talbs was not proved by respondent/pre-emptor

High Court set aside judgment and decree passed by lower Appellate Court and restored that of Trial Court

Second appeal was allowed, in circumstances.

Assertion of a pre-emptor as to having come to know of the sale of the land on a particular date and making of Talb-i-Muwathibat on that date, being his personal and private act, cannot ordinarily be contradicted by the vendee through direct evidence; he can rebut such assertion, mostly by circumstantial evidence

Where two witnesses come up with an oral version of obtaining and conveying the first information of the sale, which are their personal and private acts, the authenticity of it can be examined only by testing the chain of the source of passing on and obtaining such information, as well as by establishing the circumstances that are inconsistent with their such version.

Person who conveys the information of the fact of sale must be a person who has seen the fact of sale and it is he who can then pass on the said fact to another person(s)

Thus, the chain of the source of information, as to the fact of sale, from the very first person, who has the direct knowledge thereof and passes on the same to the person who lastly informs the pre-emptor, must be complete

Only the complete chain of the source of information of the sale can establish the essential elements of Talb-i-Muwathibat, which are: (i) the time, date and place when the pre-emptor obtained the first information of the sale, and; (ii) the immediate declaration of his intention by the pre-emptor to exercise his right of pre-emption, then and there, on obtaining such information

Where the entire case as to making of Talb-i-Muwathibat is built on the hearsay evidence of a witness, it would raise doubts on the veracity and truthfulness of the witnesses produced by pre-emptor.

When the first and primary Talb, that is, Talb-i-Muwathibat, is found to have not been proved, the Court need not examine the evidence on the making of the second Talb, that is, Talb-i-Ishhad, as where Talb-i-Muwathibat is not proved to have been made then the performance of Talb-i-Ishhad and all other requirements to successfully enforce the right of pre-emption cannot withstand

Foundation of the right of pre-emption rests on the making of Talb-i-Muwathibat; if it is not made in accordance with the law, the entire superstructure collapses.

In terms of Article 129 of the Qanun-e-Shahadat, 1984 read with section 27 of the General Clauses Act, 1897, a presumption of service does arise if a notice sent through registered post with acknowledgement due is received back with the endorsement of "refused" by the postal authorities but if the addressee appears in Court and makes a statement on oath disowning receipt of notice, the presumption under the said provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the postman who made the endorsement.

Since the appellant/defendant denied such fact in his written statement, it was the duty of the plaintiff/respondent to prove not only the issuance of notice of Talab-i-Ishhad in accordance with law and sending of notice to the vendee/defendant through registered post, acknowledgment due but also the service of notice upon vendee/defendant or refusal thereof by producing the Postman and acknowledgment receipt

Admittedly the plaintiff/respondent has not produced the original postal envelope if returned to him on refusal to receive the same by vendee/defendant, neither the receipt of acknowledgment of delivery of notice was produced nor the postman

Plaintiff failed to prove the performance of Talab-i-Ishhad in accordance with law.

In a suit for pre-emption, plaintiff is required to prove his right of pre-emption at the time of sale of land, at the time of filing of suit and at the time of decree.

"Fard Intikhab" of Register Haqdaran Zameen is not a substitute of the complete Register Haqdaran Zameen which carries the presumptions of correctness.

According to the informant he acquired knowledge about the first two sales at 11:00 a.m. in the village and went to the district courts, located 70 miles away from the village, to inform the pre-emptor

In his evidence the informant mentioned that he informed the pre-emptor at 11:00 a.m., which meant he needed to travel at the speed of light to reach the district courts at the same time as getting information about the impugned sales

Moreover disclosure of all three sales through the same source and conveyance of information to the pre-emptor in the same bar room of the district courts presented a story that may not find a prudent buyer

Civil court had rightly dismissed the pre-emption suits

Appeals were allowed.

Sale was transacted by the vendee through a Court decree and he was judicially declared to be owner in possession of the suit land with effect from 12-5-1995 and, thus, the suit ought to have been filed by the pre-emptor within a period of 120 days therefrom as was mandated by clause (c) of S. 31 of the Khyber Pakhtunkhwa Preemption Act, 1987

Since the pre-emptor failed to file his suit within such mandated time period, he was rightly non-suited by the courts below for his failure to perform Talb-i-Khasumat within the prescribed period of time

Appeals were allowed.

Petitioner-pre-emptor contended that value and area of exchanged property were disproportionate and transaction was given colour of exchange to defeat right of pre-emption

Validity

Intention of parties was to be gathered from contents of document and ostensible exchange transaction should not be dis-believed unless it was established positively that the same was in fact a sale transaction

To controvert ostensible nature of transaction of exchange and to prove it as a sale, petitioner-pre-emptor was required to lead some evidence to show as to when parties to the exchange agreed for sale but with an object to circumvent right of petitioner pre-emptor and diverted the transaction as exchange

Evidence led by petitioner-pre-emptor was vague and sketchy

No proof of date, day, time, place and nature of negotiations between respondents-defendants regarding sale was available

No witness produced in whose presence, price was settled or paid by respondents-defendants

Entire evidence was hearsay evidence and not sufficient to prove transaction of sale

Once it was established that at the time of institution of suit, vendees by way of exchange mutation diverted rights in the property but petitioner-pre-emptor did not even fulfil requirements of "Talb" under S.13(2) of Punjab Pre-emption Act, 1991

Revision was dismissed, in circumstances.

Right of pre-emption is considered to be a special right granted to pre-emptor whereby he exercises his preferential right of acquiring property against established right of vendee accrued on the basis of lawful purchase of property

Provisions of S.13 of Punjab Pre-emption Act, 1991 are of special character and mandate are required to be strictly interpreted with regard to compliance of stepwise procedural requirements starting from Talb-i-Muwathibat by announcing immediate demand and soon thereafter Talb-i-Ishhad by sending notice for exercising right of pre-emption

Necessary pre-conditions have been provided in S. 13 of Punjab Pre-emption Act, 1991, for imploring and enforcing superior right over immovable property

Obligatory on pre-emptor to discharge onus of performance of first and second Talb in accordance with prescribed procedure of S. 13 of Punjab Pre-emption Act, 1991

Petitioner/pre-emptor was not proved to be owner of any adjacent land nor he was co-owner of suit property in the year, when sale of suit land took place

Petitioner/pre-emptor had no right to purchase suit property through right of pre-emption which was sold to respondents/ defendants

Revision was dismissed, in circumstances.

Suit was dismissed on two counts; firstly, that zar-e-soem was deposited one day beyond the time required by first proviso of S.24 of the Punjab Pre-emption Act, 1991; secondly, the performance of requisite demands was not duly proved

Validity

Starting and ending day of thirty days could not be excluded for making good 1/3rd of the sale price, as such the Trial Court had justifiably concluded that its deposit was one day beyond the statutory period

Study of plaint though reflected that notices were dispatched, yet it nowhere disclosed to have been made through registered post accompanied by Acknowledgement Due Card

Impugned judgments were perfectly rendered by the Courts below

Revision petition was dismissed, in circumstances.

Plaintiff filed an application for correction of order and incorporation of direction therein to deposit sale price of decreed land less the amount of Zar-e-Soam stipulating the time

Trial Court corrected the amount of sale price but refused to extend time to deposit the corrected amount

Revisional Court granted time to the plaintiff to deposit sale price

Contention of defendants was that time to deposit the decretal amount could not be extended after stipulated period

Validity

Trial Court while passing order for compromise decree neither mentioned the amount therein nor the time was fixed for deposit of sale price

Plaintiff moved application for correction of said order and price of suit land was corrected

Refusal to extend time by the Trial Court for deposit of sale price was neither justified nor sustainable in the eye of law

Trial Court had failed to fulfill its obligation by not granting time when it had made correction in the price of land

Appellate Court was justified to exercise its jurisdiction provided under the law for granting time to deposit sale price less already deposited amount of Zar-e-Soam

Court had power to extend time for deposit of sale price once good cause had been established from the record

Trial Court while making correction in the order and decree should have extended time itself already consumed for deposit of price of decreed land

Constitutional petition was dismissed, in circumstances.

Suit was dismissed against which appeal was filed wherein attorney of defendant got recorded his statement that he had no objection on acceptance of appeal and suit was decreed

Applicant filed application for setting aside of judgment and decree on the ground that fraud and misrepresentation had been committed

Application for setting aside of impugned judgment and decree was dismissed

Validity

Petitioner was bound to plead, explain and mention the mode and manner in which fraud was played before the Court and facts were misrepresented

Applicant had not given factum of fraud and misrepresentation in the application

Attorney was required to get permission of principal whenever an act was to be done on the basis of powers so delegated but when said powers had not been disputed then no such permission from principal was required

Statement of attorney had been recorded on behalf of principal within the powers so delegated and he had stated that he had received the sale consideration of suit property

Applicant had failed to prove the fact of misrepresentation before the Court below at the time when statement of his attorney was recorded

Attorney was equipped with all the powers of principal to plead before the Court

Attorney had been authorized with power of attorney executed in his favour to enter into compromise on behalf of principal

Principal could not plead otherwise once the powers had been given and admitted by him in favour of attorney

Revision was dismissed in limine, in circumstances.

Names of witnesses of notice of Talb-i-Ishhad, date and place where it was written had not been mentioned in the plaint but the copy of such notice was appended therewith

Plaint, rejection of

Scope

Plaint was rejected on the ground that pre-emptor had not mentioned in the plaint names of witnesses of notice of Talb-i-Ishhad, date and place where it was written

Validity

Notice of Talb-i-Ishhad did contain its witnesses, date and place where it was written and same had been signed by the pre-emptor and other witnesses

Notice of Talb-i-Ishhad had been sent to the vendee through registered post acknowledgement-due and it had been appended with the plaint

Non-mentioning of date, time and place of Talb-i-Muwathibat and names of witnesses before whom pre-emptor had declared his intention to exercise the right of pre-emption in the plaint was fatal for the pre-emptor

If notice of Talb-i-Ishhad containing all the details with receipt of acknowledgement due had been annexed with the plaint then omission to mention the said details in the plaint was not fatal

Pre-emptor had annexed notice of Talb-i-Ishhad with the plaint containing all the necessary details in the present case

Pre-emptor was not required to specifically mention the names of witnesses of notice of Talb-i-Ishhad, date and place in the plaint where the said notice was annexed with plaint containing all such details

Courts below had committed illegality while passing the impugned judgments and decrees

Impugned judgments and decrees passed by the Courts below were set aside

Plaint was to be deemed to be pending before the Trial Court

Revision was allowed, in circumstances.