Suit for Pre-emption

Suit filed by appellant/pre-emptor was decreed in his favour by Trial Court and Lower Appellate Court but High Court in exercise of revisional jurisdiction dismissed the suit on the ground of limitation

Validity

Mere assertion in pleadings was not beneficial at all unless established through evidence in the light of pleadings

Fraud had to be pleaded from the beginning with full particulars of fraud and then should be established through evidence

Supreme Court declined to interfere in judgment and decree passed by High Court as the suit filed by appellant/pre-emptor was barred by limitation

Appeal was dismissed.

Informer and another witness of the petitioner/pre-emptor failed to give exact time as to when the informer informed and the petitioner announced to exercise his right of pre-emption, thus, petitioner failed to prove Talb-i-Muwathibat

Petitioner claimed that he sent the notice of Talb-i-Ishhad through registered AD and although receipt of the registered post was produced in evidence and postman was examined, but he failed to bring on record the acknowledgement due

Non-production of the "acknowledgement due" card in the evidence, which was a mandatory obligation under the law, crumbled down the structure of Talbs, thus, the petitioner failed to establish the valid performance of notice of Talb-i-Ishhad

Civil revision was dismissed, in circumstances.

There is no specific provision either in the C.P.C. or Qanun-e-Shahadat, 1984 (QSO), requiring personal appearance of all the plaintiffs, however, where a "fact" is required to be proved through oral evidence, such evidence must be direct and of the primary source

Article 71 of the QSO provides the instances of the direct oral evidence regarding the proof of a fact

Foundation of direct evidence about the proof of the "fact" of Talb-i-Muwathibat, is the "person", who has made the Talb and it is he, who should appear enabling himself for the cross-examination of the other side

Article 129(g) of QSO enables the court to draw adverse inference in the eventuality of withholding the best evidence

Non-appearance of a party as his own witness, ordinarily discredits his case

Where the fact is in the personal knowledge of a person himself and he is the primary source to prove the "fact", if such person, without any sufficient cause, abstains from appearance in the court, the requisite inference shall be drawn

Civil revision was allowed, in circumstances.

Alleged notice of Talb-i-Ishhad in both the suits was allegedly by "Mr. A", Advocate on behalf of the respondent-plaintiff, though the said notice contained the signatures of the plaintiff but "Mr. A", Advocate was required to prove the notice when he issued the notice on behalf of the plaintiff to the vendee

Language of the notice stated that on behalf of the plaintiff the Advocate was issuing the notice, therefore, it was required that the Advocate should have appeared before the Court in witness-box to prove the same

Furthermore the registered post was sent on a village address whereas the plaintiff admitted in cross-examination that the vendee/defendant was living in a foreign country

When appellant/ vendee appeared as his own witness and stated that real brother of the plaintiff is also working in the same foreign country and the plaintiff knows the foreign address of vendee and even his telephone number, this fact was not disputed in cross-examination by the counsel for the plaintiff, which meant that it was admission on the part of the respondent-plaintiff

One of the vendors who was relative of the plaintiff, appeared as a witness and stated that he went to the plaintiff and stated he wants to sell his share in the suit property but the plaintiff refused to purchase the suit property

Plaintiff did not prove the performance of Talbs in accordance with law

Appeals were allowed and suit for possession through pre-emption filed by the plaintiff/respondent stood dismissed.

Pre-emptor is bound to produce both the attesting witnesses of notice of Talb-i-Ishhad.

Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, mandates that the notice of Talb-i-Ishhad must be attested by two truthful witnesses and thus in order to prove the same a pre-emptor has to produce them in Court.

Notice of Talb-i-Ishhad was not exhibited in evidence by the plaintiff on the pretext that since the original notice of Talb-i-Ishhad was sent to the vendees, therefore, the same was not exhibited under the impression that a photo state copy of the same could not be exhibited

When sending of notice of Talb-i-Ishhad to vendee was the requirement of S.13(3) and notice of Talb-i-Ishhad was required to be proved then a photostat copy of the same could be produced and exhibited.

For getting a favourable decree in a pre-emption case, a pre-emptor has to establish the performance of all the three talbs i.e. Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat.

Any admission on the part of the vendee is immaterial and even thereafter it is obligatory for the pre-emptor to prove the sending of notice of Talb-i-Ishhad by leading affirmative evidence including production of the postman, who actually delivered or served the notices upon the vendee.

Such failure was a grave and blatant violation of S. 13, of Khyber Pakhtunkhwa Pre-emption Act, 1987, therefore, such notice of Talb-i-Ishhad would not be deemed to have been proved by the plaintiff.

Trial Court decreed suit filed by the plaintiff subject to depositing of sale-consideration amount relating to suit-land as mentioned in the impugned sale-deed

Appellant/plaintiff preferred appeal only to the extent of quantum of amount ordered to be deposited, however, decree and judgment was maintained by the District Court

Stance of the appellant/plaintiff was that the actual market price of the suit-land was half of what had been mentioned in the relevant registry

Validity

Record revealed that the appellant/ plaintiff, in order to prove his stance, exhibited as many as four sale deeds, however, out of them only one, being of the year of the impugned sale-deed, was relevant for determination of market price of suit-land

But the said (exhibited) sale-deed was not of commercial nature while the witnesses produced by the appellant/plaintiff admitted in their statements that suit-land was of commercial land, and thus, non-commercial land could not be held to be similar

Both the Courts below had rightly appreciated every iota of oral and documentary evidence led by the parties while reaching at a just conclusion

Second appeal, filed by the plaintiff, was dismissed, in circumstances.

Question that whether the suit-land was sold at the consideration mentioned in the impugned sale-deed or half of said consideration as asserted by the appellant/plaintiff, was a pure question of fact, which (fact) had been decided against the appellant/plaintiff concurrently by both the Courts below

Concurrent findings of facts could not be reversed in second appeal unless flagrant mis-reading or non-reading of evidence had been pointed out by the appellant or flagrant violation of any statutory law had been committed by the Courts below

No illegality or infirmity having been noticed in the impugned judgments passed by both the Courts below, second appeal, filed by the plaintiff, was dismissed, in circumstances.

Plea of vendees/appellants that subject sale deed in the present case (the sale which had been pre-empted) was executed in favour of the appellants on 12-8-2003 and the document was presented for registration to the sub-Registrar promptly, when the pre-emptor/ respondent on 3-7-2003 filed a suit for injunction against the vendor of the property, pleading that vendor should be prohibited from alienating the same to the vendees; that an injunction order was passed in that case, however, on 5.9.2003, the vendor in his written statement had brought on record the fact that the sale has already been accomplished, thus the pre-emptor was obliged under the law to make Talb-i-Muwathbat there and then, which was not so done; that the view set out by the courts below that as sale deed was registered on 4.11.2003 and therefore, TaIb-i-Muwathibat made on 9.11.2003 by the pre-emptor is valid in law, is founded upon misconception, against the facts on the record and also violative of the letter and spirit of the provisions of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987

Validity

Question of knowledge of the sale was ultimately a question of fact; it had to be determined on the basis of the evidence as led by the parties

Plea that as the sale stood disclosed in the written statement of the vendor of the property the earlier suit, the Talb-i-Muwathibat, had to be reckoned from the date thereof, which was 5.9.2003, was ultimately a question of fact

Merely because the written statement filed by the vendor was of a certain date could not mean that the knowledge of the pre-emptor must automatically, or even necessarily, be reckoned from that date or that the law raised a presumption, conclusive or otherwise, in this regard; it had to be specifically pleaded (or least proved by leading evidence on the point) that the respondent's knowledge dated to the date of the written statement or was on the basis, or in terms, thereof

Such evidence would have then rebutted the case as put forward by the pre-emptor as regards the date of his knowledge of the sale and the evidence that he led thereon (which was otherwise accepted by all three courts below)

Vendees did not lead evidence in such respect, thus, the crucial finding of fact which the vendees now urged the (Supreme) Court to make would, in effect, have to be a new finding

Indeed, the nature of such new finding would be such that it would be based (in at least important part) on surmises and conjectures

Appeal filed by vendees was dismissed with the Supreme Court expressing its reservations to the observations made in paragraph 7 of a two member bench judgment of the Supreme Court reported as Muhammad Nafeez Khan v. Gulbat Khan and others 2012 SCMR 235.

Petitioner/plaintiff contended that someone via cellular phone informed him about the pre-empted sale and he, all of sudden, expressed his right of pre-emption over the same

Validity

Petitioner did not appear in person in the witness-box and all the proceedings were conducted through his attorney

Thus, the petitioner did not come to the witness-box to prove his contention that two witnesses were present in the sitting on the eventful night while he, after having come to know about the impugned sale through telephonic conversation, fulfilled Talb-i-Muwathibat

Statements of informer and alleged witnesses were fully inconsistent with the stance of the petitioner regarding the performance of Talb-i-Muwathibat, thus the petitioner failed to prove the same through trustworthy and reliable evidence

No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below

Revision petition was dismissed, in circumstances.

Trial Court dismissed the suit of the petitioner/plaintiff, which judgment and decree was maintained by the Appellate Court

Validity

Petitioner did not appear in person in the witness-box and all the proceedings, including preparation of alleged notice Talb-i-Ishhad, were conducted through his attorney

Therefore, his statement regarding performance of Talbs was based on hearsay knowledge

Revision petition was dismissed, in circumstances.

Trial Court dismissed the suit of the petitioner/plaintiff, which judgment and decree was maintained by the Appellate Court

Validity

Petitioner examined the Registry Clerk, who furnished evidence of having issued the registered letters purportedly containing the notice; he did not mention that the Acknowledgment Due (A.D) Cards also accompanied the registered post

No evidence was produced to prove that the notice was delivered

Other factual evidence relating to writing of notice Talb-i-Ishhad, its signing/thumb-impression by the marginal witnesses and its delivery to the respondent were materially contradictory

No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below

Revision petition was dismissed, in circumstances.

Petitioner/ plaintiff instituted suit against one vendee only in respect of said vendee's alleged relevant Khasra number alone

Trial Court dismissed suit of petitioner/plaintiff, which judgment and decree were maintained by Appellate Court

Validity

Record revealed that the impugned sale-mutation, the land-in-dispute was not only sold out to two persons (i.e. the respondent/defendant and another), but the same (land) consisted of two Khasra numbers including the one disputed by the petitioner

Thus, the petitioner brought the suit for partial pre-emption against only one vendee (respondent/defendant) in respect of the share sold out in disputed Khasra number

When the suit was filed, instead of sale-mutation, fard Jamabandi was attached with the plaint , which was in respect of one (disputed) Khasra number only

Trial Court while considering the fard Jamabandi directed the petitioner to deposit an amount ( as Zar-e-Shufa) which was one third of the price he himself had mentioned in the plaint

Said sale price, having been mentioned by the petitioner , was too less and even less than the amount appearing in the relevant Fard Jamabandi in respect of suit-property; and also mush less than the sale consideration mentioned in the relevant mutation

Appellate Court had taken notice of said fact whereas the petitioner himself did not come up to the Court for the said deficiency

Petitioner brought the suit against one vendee only, which was hit by partial pre-emption being one of the vendees in respect of one Khasra number

No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below

Revision petition was dismissed, in circumstances.

Revision was allowed.

Limitation was not always a mixed question of facts and law, which varied from case to case but in presence of a special law where the limitation was provided as 120 days, the same could not be condoned particularly when the case of the appellant was not that the requisite requirements of S. 30 of the Azad Jammu and Kashmir Pre-emption Act, 2016, pertaining to issuance of notice, registration of sale deed had not been complied with and on account of which it could safely be concluded that registration of sale deed was itself a proclamation for which the case of appellant fell within the ambit of S. 29(a) of the Azad Jammu and Kashmir Pre-emption Act, 2016

As per S. 29 of Azad Jammu and Kashmir Pre-emption Act, 2016, the period of limitation for filing a suit to enforce right of pre-emption had been defined as 120 days from the date of registration of sale deed

Registration of sale deed was a notice to the general public at large

Appeal was dismissed.

Petitioner/pre-emptor deposed that the pre-empted land was adjacent to his land with common source of irrigation but during cross-examination he stated that there was no official canal/irrigation rather the lands were irrigated from a river

Pre-emptor's witness also showed ignorance to khasra numbers of passage and source of common irrigation; he further admitted that there was no Warabandi and neither the pre-emptor was co-sharer in the Khata, nor there was any sanctioned khal

Patwari Consolidation had also deposed that there was no joint khata between the parties and, there was no passage or common source of irrigation nor any sanctioned water

Pre-emptor in his evidence deposed that he made Talb-i-Muwathibat on 27-08-2009 but in his cross-examination he admitted that in the last week of August 2009 he was in a different city

Pre-emptor's witness in his cross-examination stated that at the time of reducing the notice of Talb-i-Ishhad, no person was present except the pre-emptor but to make some improvement, voluntarily stated that another witness was also present

Pre-emptor's witness in his examination-in-chief stated that notice of Talb-i-Ishhad through registered post could not be delivered to the vendee as there was no person by the name of the pre-emptor and he returned the notice of Talb-i-Ishhad

Attesting witnesses of the notice of Talb-i-Ishhad did not depose to have the knowledge of contents of the notice of Talb-i-Ishhad

All the courts below had concurrently reached to the correct conclusion that the pre-emptor had miserably failed to fulfill the legal requirements of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with the law

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

Details of performance of Talb-i-Muwathibat had been given in the plaint, and the same were proved through producing the informer, the witness before whom the said talab was performed, and the appellant-pre-emptor himself

Suit for pre-emption filed by the appellant had rightly been decreed

Appeal was allowed.

For the performance of Talb-i-Ishhad, the attesting witnesses of the Talb-i-Ishhad, along with the appellant-pre-emptor testified and their evidence had not been rebutted

Notices of Talb-i-Ishhad were sent to the respondents-vendees on their given addresses along with acknowledgement due cards but the same were returned un­delivered as the vendees had refused to accept the same

When the addresses appearing on registered envelopes were the same and had not been denied by the vendees then it could safely be held that the same were not accepted intentionally as an attempt to hamper and extinguish the right of pre-emption of the appellant

Available record confirmed that the pre-emptor, as per requirement of law, had performed his legal obligation

Non-acceptance of registered letters, in the given circumstances, would simply mean that the vendees knowingly refused to accept the same and their said act, in no way, could affect the rights of the pre-emptor

When the postal receipts, AD Cards and properly addressed registered envelopes containing the notices of Talb-i-Ishhad were present on file and tendered in evidence in the Court, then this would amount to sufficient compliance of the law

Suit for pre-emption filed by the appellant had rightly been decreed

Appeal was allowed.

In the present case there were two defects; the date mentioned in the pleadings for gaining knowledge was 2-4-2003 but plaintiff/pre-emptor himself when appearing as his own witness stated the said date was 2-8-2003 while son of the plaintiff narrated it as 2-3-2003

Moreover, the postman had also not been produced to prove the delivery of notice of Talb-e-Ishhad or its refusal by the addressee

Pre-emptor argued that the contradiction in date of Talb-e-Muwathibat was due to a slip of tongue, however he could not answer as to what stopped him from moving the Trial Court for correction of the dates mentioned in his statement and that of his son

Nothing on record was shown that any effort was made in such regard by the pre-emptor before the Trial Court or even before the first appellate court, thus, the interpretation by the first appellate court that it was either a slip of tongue or wrongly recorded testimony was based on findings not permissible under the law

First appellate court did not have the jurisdiction to record such like findings when there was no material for declaring so

Suit for pre-emption was rightly dismissed

Appeal was dismissed.

To succeed in a suit for pre-emption the first and foremost condition was that plaintiff had to plead that before filing of suit he had fulfilled the requirements of Talabs and thereafter he had to prove the performance of Talb-e-Muwathibat and Talb-e-Ishhad

For proving Talb-e-Muwathibat there must be specific time, date and place of knowledge pleaded in the plaint as well as in the notice of Talb-e-Ishhad

Thereafter plaintiff was required to prove the same by proving the gaining of knowledge at specific place, time and date followed by sending of notice attested by two truthful witnesses through registered post where the postal facilities were available and thereafter to prove the delivery of notice to the addressee/vendee/­defendant or its refusal by producing a Postman in the Court while producing evidence to prove the pleadings.

Description of property was written in registered deed in Urdu numbers on basis of which notice of Talb-i-Ishhad was issued and plaint was drafted

All other numbers were in English

Neither the officials of revenue hierarchy nor lawyers could read or write Urdu and Persian numbers nowadays, nor those were taught in schools

Scribe of plaint and notice of Talb-i-Ishhad had inadvertently read the numbers in Urdu in registered deed "22" as "44" with respect to its similarity/resemblance

Law required the adjudication on merits rather than technicalities

Revision petition was allowed with cost and suit was deemed pending before Trial Court.

Defendant assailed judgment and decree passed by Appellate Court whereby the suit of plaintiff for possession through pre-emption was decreed and the judgment and decree passed by Trial Court was set aside

Validity

Plaintiff did not have superior right of pre-emption to file the suit

Even otherwise on account of death of original pre-emptor the plaintiff had stepped into his shoes and had become pre-emptor

Such was important for pre-emptor to have superior right on three stages of pre-emption, at the time of sale, at the time of filing of the suit and at the time of decree, certainly that aspect went against the plaintiff

Even on the point of inheritance, if his status as pre-emptor was admitted as correct he did not qualify to make statement to establish Talb-i-Muwathibat

Plaintiff's evidence regarding Talb-i-Muwathibat was hearsay evidence which was inadmissible

Neither the plaintiff was present at the time of making Talb-i-Muwathibat nor was present at the time of notice of Talb-i-Ishhad, his evidence was not in accordance with law, as required under S. 13 of Punjab Pre-emption Act, 1991

Other witnesses of Talb-i-Muwathibat were also not consistent and they were not sure about time, date and place

Postman although had died but the person who had appeared to make statement on his behalf was not legally entitled to make the same

Suit of the plaintiff was dismissed.

Pre-emptor being male descendant fell within the category of residuary, whereas second vendee as female successor-in-interest went out of said list

Second vendee became remote to the vendor as compared to the pre-emptor

Latter being nearer per settled principle had to exclude the remote, thus superior right of pre-emption was perfectly adjudicated upon in favour of pre-emptor

Second appeal was dismissed, in circumstances.

Defendant/vendee in a suit for pre-emption claimed that he had purchased the land vide sale receipt by making advance payment, when allegedly possession was also delivered to him, whereas remaining sale price was paid at the time of attestation of sale deed, thus institution of suit beyond one year of the basic sale was time barred

Validity

Onus probandi was upon the defendant to prove that the sale indeed was basically effected upon payment of advance payment

On his part there was his solitary statement, who being witness tendered receipt, which did not find mention that possession was also delivered thereunder

Neither original vendor nor anyone out of two marginal witnesses of sale deed despite availability were produced

Sale deed was found mute as well qua any prior deal, whereas none of the copies of khasra girdawaries were got exhibited by the defendant to expose that possession under purported sale was ever delivered

Mere exhibition of receipt was of no help to the latter to hold that suit was barred by time

Contention of the defendant was turned down

Second appeal was dismissed, in circumstances.

Right of pre-emption is a feeble right and evidence for exercise of such right, being oral, is required to be direct, confidence inspiring and duly supported by the witnesses.

Contradictions in the statements of witnesses as to how/when pre-emptor was informed about sale-in-question could not be lightly brushed aside, particularly in a case of pre-emption where strict adherence to the requirements of law for making Talb-i-Muwathibat was necessary.

Held, that two star witnesses (including informer) had not specifically disclosed the date and time when appellant/pre-emptor received information about disputed transactions and made Talb-i-Muwathibat; instead said witnesses, in general terms, stated that so- and-so years/months/days ago, the appellant was informed

Law insisted on utmost promptitude in making of Talb-i-Muwathibat

Convincing, reliable and consistent statements of witnesses, to prove the factor of time, were mandatory requirement of law as from the date and time of making Talb-i-Muwathibat, the period for sending notice of Talb-i-Ishhad was calculated.

Held, that admission of the defendants/respondents did not confirm that Talb-i-Ishhad was made in accordance with law rather plaintiff/appellant was required to produce evidence including the postman to prove that in fact notice of Talb-i-Ishhad was served upon defendants/respondents

Appeal of pre-emptor was dismissed, in circumstances.

Not only the mention of the date, time and place of performance of Talb-i-Muwathibat in the plaint was a legal requirement, but also the plaintiff was legally bound to prove the same through cogent and trustworthy evidence before the Court because the contents of plaint could never be considered as evidence and by mentioning such details in the plaint , the plaintiff could not be absolved from the duty to prove the same through reliable and truthful evidence

Burden of proving Talb-i-Muwathibat, in the present case, had not been discharged in accordance with S.13 of the Punjab Pre-emption Act, 1991

Talb-i-Muwathibat was the foundation for exercise of right of pre-emption

Without proving performance of Talb-i-Muwathibat, requirement of Talb-i-Ishhad, even if proved, would be of no consequence

Appeal of the pre-emptor was dismissed, in circumstances.

Court had to apply the law and to exercise powers vested by the law instead of abdicating the same for avoiding misuse and abuse of process of law

No intervention of parties was required and court could exercise such powers suo motu.

Since the very foundation of the pre-emptor's claim was his ownership of the adjacent immovable property on the basis whereof he asserted superior pre-emptive rights of a Shafi Jar, it was necessary for him to assert his ownership, which was not only a material fact but an essential one

However the plaints did not state that the pre-emptor owned the immovable property, on the basis whereof he claimed rights of Shafi Jar to the two plots, and the same was the position with regard to his replies to the application under O. VII, R. 11, C.P.C.

No document was available on record which disclosed the pre-emptor's ownership to the immovable property on the basis of which he claimed the right of a Shafi Jar

As the plaints did not state that the pre-emptor was the owner of the adjacent property, therefore, he should not be permitted to lead evidence to assert and then to establish his ownership of the adjacent immovable property

Plaints in both suits were rejected under O. VII, R. 11, C.P.C.

Petitions for leave to appeal were converted into appeals and allowed.

Such delay was fatal to a pre-emption suit.

Mutation of sale qua subject property was attested on 14-2-1990; this was the interregnum period i.e. from 1-8-1986, to 28-3-1990 when no law of pre-emption was there and all such cases pending/instituted were to be decided in accordance with general Islamic law of pre-emption and on promulgation of the Punjab Pre-emption Act, 1991 ('Act of 1991') legal protection was given to such cases under S. 35 of the Act of 1991

Sale of subject property was effected on basis of a decree passed by civil court in a suit

Pre-emptor (petitioner) remained a party to the said suit and was fully aware of the sale transaction in favour of vendee (respondent)

Story narrated in the plaint by the pre-emptor regarding his knowledge was nothing but a fictitious one for the purpose of justifying his story of Talabs

Pre-emptor alleged that he approached the vendee himself with a witness for purposes of Talb-i­-Ishhad but this was not established in accordance with law and in a similar attempt to prove Talb-i-Ishhad he allegedly sent a notice after about 3-1/2 months but that too had not been established according to law

Although some relaxations under Ss. 13 & 30 of the Act of 1991 were provided to such pre-emptors vide subsection (2) of S. 35 but there was no such relaxation in the provisions of subsection (2) of S. 6 of the Act of 1991

Courts below had rightly dismissed the suit for pre-emption

Petition for leave to appeal filed by pre-emptor was dismissed and leave was refused.

Petitioners/plaintiffs challenged registered deed whereby two vendees(defendants) had purchased the property, but they had not sent separate notices, through registered post with Acknowledgment-Due (AD) cards, as required in terms of S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987

One of the respondents had categorically denied receiving any notice in the written-statement whereas one of witnesses of the petitioners had admitted the said fact in the cross-examination

When receipt of notices was denied by the defendant then production of postman as petitioners' witness was sine qua non

Sending notice through registered post without Acknowledgment Due (AD) could not be construed to have met the requirement of S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987

Revision petition was dismissed.

Petitioners/plaintiffs contended that non-production of informer was of no consequence as he had proved the Talbs in accordance with law

Held, that neither the informer nor anybody else, in whose presence Talb-e-Mawathibat was allegedly made, was produced as at the time of making said Talb, several persons were assembled on the return of one of the petitioners after performing Hajj

Talb-e-Mawathibat could easily be proved by production of anyone from the persons/witnesses in whose presence the Talb was made but, in the present case, except the son of one of the petitioners, no one else was produced

No reasonable or plausible explanation was given by the petitioner for non-production of the informer

Petitioners had failed to prove their case

No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below

Revision petition was dismissed, under circumstances.

Talb-i-ishhad was not proved as the notice was not served upon the respondent/vendee rather the same was received by another person

Talb-i-ishhad could not be considered to have been proved, in circumstances

Revision petition was dismissed.

Informer deposed that he obtained knowledge about the sale at about 7:45 a.m.; had breakfast; proceeded to the petitioner's village and informed him at 8:00 a.m. about the sale

Held, informer's story did not appeal to a prudent mind, thus, both the courts below had rightly held that the petitioner could not prove Talb-i-muwathibat

Revision petition was dismissed, in circumstances.

Two pre-emptors filed separate suits for possession through pre-emption, however, the vendee/defendant entered into compromise with one of them

Petitioner (pre-emptor with whom the vendee entered into compromise) contended that the Appellate Court had wrongly discarded his evidence observing the same as beyond imagination that why the informer (a student) informed the pre-emptor on the way (outside the mosque) and why not at home of the pre-emptor

Held, that the presumptions and speculations could be different in different minds, so the same should be avoided for the purpose of determining the factum of Talb-i-Muwathibat; rather the evidence and the manner in which the same was produced should be considered

If the evidence of the informer, pre-emptor and the witnesses of Talb-i-Muwathibat was in line but was discarded on the analogy that it seemed to be a drama that they had formed the Majlis for the pronouncement of Talb-i-Muwathibat and if the evidence was not supporting each other and the suit of the pre-emptor was dismissed on the ground of discrepancies/contradictions, then in such eventualities, the law would stand defeated

If the findings of the Appellate Court (as to why the pre-emptor was not informed at pre-emptor's home) was to be believed as true then it would mean that the information might not be given in the natural course but the informer should have waited and planned that the information would be given at home of pre-emptor

If Talb-i-Muwathibat was allowed to be analyzed on the basis of probabilities and presumptions then the suits would not be decided in accordance with law

Appellate Court also discarded Talb-i-Muwathibat performed by the rival pre-emptor without any proper appraisal of evidence

Witnesses of both the pre-emptors had given their statements in a comprehensive, direct and natural way and though they (witnesses) were cross-examined, not only by the vendee/defendant but also by the respective rival pre-emptor, but none of them had been able to create a dent in their statements

Talb-i-Muwathibat was rightly performed by the pre-emptor

High Court decreed the suit of the petitioner/pre-emptor in whose favour the vendee had entered into a written compromise

Revision petition of the said pre-emptor was allowed and that of the rival pre-emptor was dismissed, in circumstances.

Two pre-emptors filed separate suits for possession through pre-emption, however, the vendee entered into compromise with one of them

Contention of the petitioner/rival pre-emptor (with whom the vendee had not entered into compromise) was that the vendee had refused to receive the notice of Talb-i-Ishhad from the postman

Validity

Vendee had categorically denied the refusal or receipt of notice of Talb-i-Ishhad

When it was alleged that vendee had refused to receive the notice of Talb-i-Ishhad from the postman then the pre-emptor was required to prove sending of said notice to the vendee

Even if the vendee had admitted the receipt of notice of Talb-i-Ishhad, the pre-emptor was required to prove sending of the same

For proving the factum of notice of Talb-i-Ishhad, the production of postman before the Trial Court was inevitable

Non-production of the postman or his predecessor-in-office by the rival pre-emptor was fatal to his case

Talb-i-Ishhad was not proved, in the present case, as required by the law so the pre-emptor was not entitled for decree and was rightly non-suited by both the Courts below

Concurrent findings to that effect could not be reversed being not perverse, against the law and fact

High Court decreed the suit of the petitioner/pre-emptor in whose favour the vendee had entered into a written compromise

Revision petition of the said pre-emptor was allowed and that of the rival pre-emptor was dismissed, in circumstances.

Two pre-emptors filed separate suits for possession through pre-emption, however, the vendee/defendant entered into compromise with one of them

Petitioner (rival pre-emptor with whom the vendee had not entered into compromise) contended that High Court earlier had remanded the matter concurring with his version that compromise between pre-emptor and the vendee could not be effected in suit for pre-emption

Held, that presumption drawn in the impugned order was not correct as earlier High Court remanded the matter but not on the basis that pre-emption suits could not be decided through compromise

High Court had actually remanded the matter to Appellate Court for re-writing of judgment, as the evidence was not properly construed in true perspective/mandate of O.XLI, R.31, C.P.C

Matter was remanded irrespective of the fact of compromise so that the rights of rival pre-emptor might not be adversely affected keeping in view the provisions of S.20 of Khyber Pakhtunkhwa Pre-emption, 1987

Had there not been the suit of rival pre-emptor, there was no hurdle for entertaining compromise for the purpose of amicable settlement and decision of the suit filed by the pre-emptor with whom the vendee had compromised

When the case of rival pre-emptor was not in field, then there was no hurdle for the Court from accepting the compromise and decreeing suit in favour of pre-emptor on the basis of statement made by the vendee who was present in Court and had no objection if the suit was decreed in favour of the other pre-emptor

High Court decreed the suit of the petitioner/pre-emptor in whose favour the vendee had entered into a written compromise

Revision petition of the said pre-emptor was allowed and that of the rival pre-emptor was dismissed, in circumstances.

Contradictions were found in the statements of marginal witnesses of notices as one witness deposed in cross-examination that after scribing of notices, they (witnesses) dispersed whereas other witness stated in cross-examination that after scribing the notices they proceeded to their village in the same vehicle, as such the witnesses were not truthful as required under S.13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987

Petitioner failed to make out his case for interference

Revision was dismissed, in circumstances.

Contents of the plaint showed that the plaintiff had alleged specific date, time and place ( his house ) when he made Talb-i-Muwathibat in the presence of witnesses on revelation of the informer

Informer adduced in his evidence that he was at his own residence when he came to know about disputed transaction deposing the same time and then he went to house of the petitioner to inform him which meant that at exactly the alleged time the petitioner was not informed and Talb-i-Muwathibat was not performed in the mode and manner as alleged by the petitioner/plaintiff

Slightest delay in making Talb-i-Muwathibat could not be ignored

Petitioner failed to make out his case for interference

Revision was dismissed, in circumstances.

Neither Islamic Law nor the Legislature had intended that the Talb-e-Muwathibat should have been made in presence of more than one person as the gathering, meeting, majlis or sitting could be of only two persons i.e. the pre-emptor and the informer

Plaintiff, in the present case, had averred in the plaint that he made Talb-e-Muwathibat in the presence of the informer alone whereas in his statement he introduced yet another person/witness, which was against the pleading, as such the same was not in consonance with law on the said subject

Suit was rightly dismissed.

Contention of the petitioner/plaintiff was that he had produced documentary evidence (extract of jamabandi/record-of-rights etc. ) to prove his claim

Held, that all Khasra numbers mentioned/incorporated in the extract ( of jamabandi produced by the plaintiff) pertained to "Shamilat Akazai" and he had not produced the list of " proprietary body " /" Fihrist-i-Malikan " which could determine the status of petitioner as to whether he was original owner (Asal Malik) or Malik-e-Qabza

Mere placing on record the extract from jamabandi could not ipso facto be a conclusive proof of plaintiff's ownership in the "Shamilat", thus said extracts of jamabandi were not helpful to him

Even " Aks Shajra kishtwar " produced by the plaintiff was without any proof that in which Khasra he was the owner, so the same had also not contributed any premium to him

Plaintiff had alleged to become owner of property contiguous to the suit-property by virtue of a Iqrarnama but he had not produced marginal witnesses and vendor of the said Iqrarnama

Record showed petitioner placed his documents on record through his solitary statement which (act) was objected by the defendant so the plaintiff was required, under the circumstances, to establish his case through well-founded and credible evidence

Plaintiff could not prove his preferential right of pre-emption

No illegality or infirmity was found in the impugned decrees and judgments passed by both the Courts below

Revision petition was dismissed in limine, in circumstances.

When the defendant had categorically stated that no Talb-e-Ishhad was made, then the plaintiff was legally required to prove that not only the notice ( of Talb-e-Ishhad ) was scribed but the same was served upon the respondent/vendee also

Postman was, admittedly, not produced in the present case and record clerk post office was produced who adduced that neither he booked the registered letter nor delivered the same

Another witness produced by the plaintiff as the record keeper stated in his evidence that he was appointed as peon in the post office who neither received registered letter/notice nor delivered the same

"Acknowledgment Due" card, placed on file, bore a signature on its overleaf, however, the document/sale-deed, by virtue of which the property was purchased by the respondent/vendee, bore his thumb-impression

Special attorney of respondent got the sale-deed exhibited in his evidence but regarding signature and thumb-impression no question was put to him (special attorney)

Suit was rightly dismissed.

Held, that both the informer and plaintiff , while adducing their evidence, added that another person was also present at the time of making Talb-e-Muwathibat; and said person/witness also deposed the same in his own statement wheras said fact was neither mentioned in the notice of Talb-e-Ishhad nor in the plaint

Said witnesses had also contradicted with regard to the specific place (whether the veranda or the room of the petitioner's house) where the Talb-e-Muwathibat was allegedly made

Witnesses , in the present case, were not truthful which was the mandate of law, thus no Talb-e-Muwathibat was made by the petitioner

Suit was rightly dismissed.