Qazil Abdul Malik Vs Qazi Atta Ur Rehman

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

(Judicial Department) C.R No. 69-A/2010

Qazi Abdul Malik.........................(Petitioner) vs Qazi Atta ur Rehman & others........(Respondents) Present: Mr. Nasrullah Khan Jadoon, Advocate for the petitioner.

Qazi Muhammad Azhar, Advocate for the respondents.

Date of hearing: 08.08.2025

JUDGMENT

SADIQ ALI, J.- This order is directed to dispose of this revision petition whereby the petitioner has challenged judgment and decree dated 27.01.2010 passed by the learned Additional District Judge-III, Abbottabad through which the learned appellant Court, while allowing appeal filed by the respondent against judgment and decree dated 12.06.2009 of learned Civil Judge-IX, Abbottabad, decreed suit of the respondent/ plaintiff.

2.Predecessor of respondents namely

Qazi Zakir ur Rehman brought suit for the grant of decree for possession by exercising his right of pre-

emption in respect of the property described fully therein. It was averred in the plaint that the suit property was sold out to defendant/petitioner but in order to defeat his right of preemption, the transfer was given the colour of exchange. It was further averred in the plaint that plaintiff got the knowledge of the suit sale on 09.04.2000 at 09:00 PM, in his house through informer Qazi Abdul Qayum and he there and then expressed his intention to preempt the suit sale, followed by issuance of notice Talab-i-Ishhad to the defendant/petitioner through registered post AD.

Plaintiff/respondent claimed his superior right over the property, being Banna Sharik, Khata Sharik and having his interests in the amenities attached to the sold land.

The suit was tried in the Court of learned Civil Judge- IX, Abbottabad where defendant was summoned, who appeared and filed written statements, wherein it was specifically claimed that the transaction preempted by the plaintiff/respondent was not a sale, rather an exchange. Contentious points of the parties were reduced into issues and the parties were allowed to produce their respective evidence. On conclusion of proceedings in the case, suit of the plaintiff was

dismissed by the learned trial Court vide judgment dated 12.06.2009. Respondents/plaintiffs filed separate appeal there-against, which was allowed by the learned appellate Court/Additional District Judge-III, Abbottabad vide the impugned judgment 27.01.2010 and the suit of the respondents was decreed. Aggrieved of the findings of the learned appellate Court, petitioner has approached this Court through this revision petition.

3.I have heard arguments of learned counsel for the parties and perused the record.

4.The right of pre-emption has been given to a co-owner, contiguous owner or owner in appurtenances to the property sold, in preference to the original owner, subject to fulfillment of the requisite demands. Under Section 5 of the Khyber Pakhtunkhwa Preemption Act, 1987, right of pre-emption would accrue in case of sale. In the instant case, the preemptor claimed that the suit property was sold in lieu of sale consideration of Rs. 30,000/- but malafidely, the sale was given the colour of exchange.

The defendants/petitioners on the other hand, claimed that the property was not purchased rather it was an

exchange for the purpose of better management of the property and for that purpose mutation No. 1037 was attested against impugned mutation No. 1036. The plaintiff when put forth the claim that the transaction was that of sale, he was burdened to prove the said claim through evidence, however, during course of evidence, nothing could be brought on record to establish that any sale consideration was paid to the vendor; the consideration was in cash or kind or where and in whose presence such consideration was paid.

When a specific sale consideration was mentioned in the plaint, it was incumbent upon the plaintiff to prove the same through evidence, but he failed.

5.The witnesses of the plaintiff have also contradicted his stance of sale. Patwari Halqa was produced and examined as PW-4, who admitted during his cross examination that the mutations were that of exchange and no consideration was paid. Under Section 2(d) (iv) of the Act, the claim of pre-emption would not stand against an exchange of agricultural land for better management. The evidence brought on record shows that the defendants/petitioners obtained property in exchange of their landed property and it

was admitted by the attorney of the plaintiff that some graves were made in the property, which was received by the petitioners/defendants in exchange of their landed property. The defendants/petitioners also claimed that the property was exchanged because they require some property for the purpose of graveyard whereas Mst. Jameela Khatoon was in need of landed property for the purpose of construction of house. In the case of “Fazal Rehman Vs. Khursheed Ali and others” (2004 CLC 359), this Court held that;

“To define and interpret the phrase "better management" no hard and fast rules can be laid down, however, some of the purposes may be elucidated as follows:--

The exchange would bear fruitful results because on account or effective control and management of the same in relation to the agriculture activities thereon.

(ii)To bring the land within the common or sole irrigation system and better channelisation of water therefor.

(iii)To prevent/thwart disruptive and damaging effects of unwanted discharge of water of one land over the other.

(iv)To amalgamate the land got in exchange with other land of the vendee making it a compact block out of scattered pieces so that it is brought within the fold

and command of one irrigation channel or for the purpose of getting one and the same crop therefrom.

(v)By such exchange to get an access to a path/road leading from the farm to the road or to the market.

(vi)To secure and safeguard the standing crop over there from being damaged by the animals frequenting there or other factors of the These factors might not be all encompassing and may vary from place to place, from person to person and from one class of land to other class of land which may be considered in each case on the basis of evidence and circumstances of that case, however, the sole object must be the .one to achieve better results from agriculture point of view byway of exchange of land.”

Reliance may also be made on the case of “Amir Nawaz Khan and 2 others Vs. Rehmatullah Khan” (2010 CLC 1474), “Ahmad Ali Khan and others Vs.

Bibi Ro and others” (2011 YLR 2494), “Muhammad Ashraf Vs. Haji Muhammad Yar and 3 others” (2012 MLD 1426). The material available on record would suggest that though the mutation was that of exchange but it could not be proved that the land was agricultural one and the exchange was aimed at its better management in that very context, thus the requirement

to exclude the transaction from the right of pre- emption was missing.

6.The foremost step to be taken in order to bring home a suit for pre-emption is the demand of Talab-e-Muwathibat, which according to Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, means immediate demand by the pre-emptor in the sitting or Majlis in which he/she has come to know of the sale by declaring his/her intention to exercise the right of pre-emption. The word ‘immediate’ used in the Section ibid signifies greater importance in so far as a slight delay in its performance might entail greater loss by crumbling down the whole exercise to the ground.

The preemptor in this case was Qazi Zakir ur Rehman, the predecessor of the respondents. In the plaint, he though mentioned that he received knowledge about the suit sale through Qazi Abdul Qayyum. Said informer appeared in the witness box as PW-6, who deposed that he informed the plaintiff about the suit sales and he there and then expressed his intention to preempt the suit sales. He further stated that he got the knowledge about the suit sales through Patwari Halqa.

7.The Patwari Halqa, through whom the informer claimed to have received the information about the suit sales, could not be produced and examined despite the fact that PW-6 mentioned his name during his evidence. Therefore, the chain of information about the sale from the very first person to the informer, was found missing in the instant case. In the case of “Muhammad Riaz Vs. Muhammad Akram and others” reported as 2024 SCMR 692, it has been observed by the august Supreme Court of Pakistan that;

“On the other hand, Muhammad Basharat Ali, from whom PW-2 (the informer) received information regarding the sale of the suit land, appeared as DW-3 and contradicted the account given by PW-2 (the informer). He asserted that he did not meet the informer in Pasrur on 05.02.2004, nor did he inform him about the sale of the suit land. We believe that the fact of the sale of the suit land is a fact that can be seen, such as, by observing or taking part in the sale transaction or by seeing the sale deed or sale mutation. The 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. Reference in this regard may be made to the case of Farid Ullah Khan v. Irfan Ullah Khan (2022 SCMR 1231). 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 Muhammad Basharat Ali

has categorically refused to meet and share the information about the sale of the suit land with Ghulam Mustafa (the informer). The entire case of the respondents regarding the issuance of Talb-i- Muwathibat built on the hearsay evidence of Ghulam Mustafa (the informer) falls to the ground due to an incomplete chain of information about the sale of the suit land. Therefore, the learned trial Court correctly observed that when the source of information provided by the informer is not proved, the transmission of this information to the respondents also becomes highly doubtful. However, both the learned first appellate court and the learned High Court failed to take note of this important fact of the matter and set-aside the judgment and decree of the learned trial court. Therefore, we feel no hesitation to hold that the respondents failed to prove the validity of Talb-i-Muwathibat made by them for exercising their right of pre-emption over the suit land.”

8.The petitioner thus failed to establish a foundation whereupon, his suit of pre-emption could stand. Coming to the performance of Talab-i-Ishhad by sending notice to the defendants through registered post Acknowledgment Due, in presence of two truthful witnesses; in the case in hand, though the plaintiff mentioned that the notice of Talab-i-Ishhad was scribed and sent to the defendant, in presence of the witnesses, but the names of the witnesses were not mentioned in the plaint. The apex Court in the case of “Kashmali Khan and others Vs. Mst. Malala (2023 SCMR 1176)” has observed that the omission to mention the names of witnesses of notice Talab-i- Ishhad in the plaint would be fatal to the case. Relevant findings of the apex Court are reproduced below;

“This brings us to consider that whether the formalities essential for making Talab-i-Ishhad were duly observed by the plaintiffs. Before going into that, it is important to mention here that by Talab- i-Ishhad, or demand by establishing evidence, is meant the calling of two witnesses by the pre-emptor to attest his making of the first demand (Talb-i- Muwathibat) to strengthen his claim for pre-emption. The calling of witnesses is

not necessary for the validity of his claim for pre-emption, it is on the other hand, intended to provide the pre-emptor with proof when the vendee denies the demand (Talab). This position of law unequivocally suggests that proving the presence of witnesses is one of the material facts, within the contemplation of Order VI, C.P.C., which establishes that the essential formalities for making Talab-i-Ishhad were observed by the pre- emptor. As such, it was mandatory for the plaintiffs to first state the names of the witnesses for Talab-i-Ishhad in their plaint and then prove their attestation by producing them in Court. Keeping this legal obligation in mind, we examined the contents of plaint to ascertain whether the names of the witnesses of Talab-i-Ishhad had been disclosed therein. On perusal, it was found that the plaintiffs had omitted to mention the names of such witnesses in the plaint. The right of pre-emption is but a feeble right. As it disseizes another who has acquired a property in bona fide manner for good value, it entails that the ritual of the Talbs must be observed to the letters, and nay departure, howsoever slight it may be, defeats the right of pre-emption. We, therefore, hold that the aforesaid

omission is fatal to the claim of proffered by the plaintiffs.”

9.Moreover, during the pendency of the

suit, the original plaintiff unfortunately passed away, following which his legal heirs were brought on record as substituted plaintiffs. However, among these legal heirs, only one individual appeared before the Court and deposed as PW-5. Although this witness held a power of attorney on behalf of the remaining legal heirs, no satisfactory or plausible explanation was offered for the non-appearance or non-examination of the other legal heirs of the deceased pre-emptor. It is a well-established principle that the right of pre-emption is a personal right, which, upon the death of the original pre-emptor, devolves individually and collectively upon all his legal heirs. Consequently, each legal heir is required to assert and substantiate this right through personal appearance or examination before the Court. In circumstances where one or more legal heirs fail to appear, it is imperative that a cogent and legally acceptable justification be provided for such absence. The mere execution of a power of attorney does not absolve the other legal heirs from the responsibility of asserting their personal right of pre-

emption, especially in the absence of any compelling reason preventing their appearance. Referenc may be made to the case of “Ghulam Hussain Vs.

Muhammad Rasheed” (2018 MLD 117 Lahore)”.

The attorney of the plaintiff though claimed that he along with Qazi Muhammad Azhar, Advocate were present nearby the plaintiff when he made Talab-i- Muwathibat, but said fact is in contradiction to pleadings, therefore, amount to improvement and renders the evidence of PW-5 to be doubtful.

10.Cumulative effect of the aforesaid narration is that the plaintiff failed to prove performance of Talabs in accordance with Section 13 of the Pre-emption Act. The chain of information could not be established during the evidence and the name of witnesses of notice Talab-i-Ishhad were not mentioned in the plaint. The Patwari Halqa was not produced in order to establish the chain of information and all the pre-emptors i.e. the legal heirs of the deceased pre- emptor have not asserted their right of pre-emption personally nor any cogent reason was put forward for their non-appearance. Thus the element of Talab-i- Muwathibat and Talab-i-Ishhad could not be legally

proved. Reliance is placed on “Subhanuddin and others Vs. Pir Ghulam (PLD 2015 SC 69), Umar Ayar Vs. Abdu lSatar Khan (2017 MLC 378), Noor- ul-Basar Vs. Sher Ali (2018 CLC 323)”.

11.The learned appellate Court failed to properly appreciate the evidence and fallen into error while reversing the judgment and decree passed by the learned trial Court, which requires interference of this Court in its revisional jurisdiction.

12.In light of what has been discussed above, this revision petition is allowed and while setting-aside judgment and decree of the learned appellate Court, the suit of the plaintiffs/respondents stand dismissed.

Respondents would be at liberty to withdraw preemption amount from the learned trial Court.

Announced Dt: 08.08.2025

Sd/JUDGE

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