Mehboob Khan Vs Ali Asghar Khan

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Civil Revision No. 208-A/2012

JUDGMENT

Date of hearing...................11.09.2025.................................

Petitioner (Mehboob Khan) By Mr. Muhammad Shafique Awan, Advocate.

Respondent (Ali Asghar Khan) By Mr. Amjad Khan, Advocate.

AURANGZEB, J.- Through this single judgment, I propose to decide the instant revision petition filed by Mehboob Khan alongwith the connected Civil Revision No. 382-A/2012 filed by Ali Asghar, as both involve common questions of law and fact.

Since the subject matter and legal issues are interlinked, it is deemed appropriate to dispose of them through a consolidated judgment. It is pertinent to note that the aforesaid revision petitions have been directed against the judgment and decree dated 21.04.2012, passed by the learned District Judge, Abbottabad, whereby the appeal preferred by the respondents against the judgment and decree dated 27.04.2011 of the learned Civil Judge-I, Abbottabad, was accepted.

2.The facts of the case, in brief, are that the respondent/plaintiff instituted a suit for possession through exercise of his right of pre-emption in

respect of property measuring 13 kanals 05 marlas of Khasra No.4120/3886 situated in Mauza Rajoya Tehsil and District Abbottabad transferred through mutation No.10259 attested on 23.08.2008. He got knowledge of the impugned sale on 19.10.2008 at 03:00 p.m through his son Dilawar Khan in his house, he there and then expressed his intention to pre-empt the suit property followed by notice Talb-i-Ishhad through registered A.D. He claimed his superior right of pre-emption over the suit property being co-owner.

When he asked the respondent to accept the claim of petitioner but he refused to do, hence, the instant pre-emption suit. The respondent/ defendant appeared before the learned trial court and contested the suit by filing his written statement. The learned trial court after framing issues, recording evidence and hearing arguments of learned counsel for parties, dismissed the suit of the respondent vide judgment and decree dated 27.04.2011. Not contented with the same, the respondent filed an appeal before the learned District Judge, Abbottabad, which was accepted vide judgment and decree dated 21.04.2012, hence, there revision petitions.

3.I have heard arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.

4.The three demands asserting the right of pre-emption have their own respective connotation the first demand i.e. jumping demand/Talb-i- Muwathibat is defined in the first explanation to sub-section 1 of Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, which envisages firstly, the act of prospective pre-emptor coming to know of the factum of sale, secondly, such knowledge or information emanating from a sitting or meeting and thirdly declaration of his intention to pre-empt the suit property immediately on getting knowledge of the sale, which is commonly known as Talb-i-Muwathibat or jumping demand. He shall be thereafter, required to make the demand of Talb-i-Ishhad by establishing evidence as soon as possible but not later than two weeks from the date of notice under section 13 of the ibid Act, for the knowledge, whichever, may be earlier, by sending a notice in writing attested by two truthful witnesses to the vendee, under a registered postal cover with acknowledgment due confirming his intention to exercise the right of pre-emption, then comes the

demand for Talb-i-Khusumat by filing a suit in a competent court of law for enforcing his right of pre-emption.

5.Perusal of the record reflects that it was alleged in the plaint that the knowledge of sale was conveyed to the respondent on 19.10.2008 at about 03:00 p.m., when he was present at his house. It was asserted that this information was communicated through an informer, namely Dilawar Khan (PW-4), in the presence of Sher Afzal Khan and Gul Faraz Khan, whereupon the respondent immediately made a “jumping demand” (Talb-i-Muwathibat). This version was reiterated in the notice of Talb-i-Ishhad, wherein the respondent again stated that he was informed of the sale transaction through Dilawar Khan (PW-

6.When the respondent himself appeared as PW-5 before the learned trial court, he deposed in his examination-in-chief that on 19th October he was present at his residence along with Sher Afzal and Gul Faraz, when, at about Asar time (approximately 05:00 p.m.), the son of Dilawar Khan informed him that Mehboob Khan had sold the property. At that very moment, he pronounced his intention to pre-empt the suit property.

Likewise, PW-4 Dilawar Khan, in his examination- in-chief, deposed that on the mourning he had heard that Mehboob Khan had purchased the property from Farooq Sultan. He thereafter went home and informed his father, upon which the respondent made the immediate jumping demand in the presence of Sher Afzal, Gul Faraz, and himself at about 05:00 p.m. He further specified that the day was Sunday, the date being 19th of October.

7.However, PW-5 Gul Faraz, when examined before the trial court, did not, in his examination-in- chief, specify the day, time, or place where the alleged jumping demand was made. In his cross- examination, however, he denied that Dilawar Khan had come at 03:00 p.m. to inform the respondent of the sale. He further volunteered that the correct time was degar vela (approximately 05:00 p.m.). Similarly, PW-6 Sher Afzal Khan in his examination-in-chief stated that the day was Sunday, the date was 19th, and the time was around 05:00 p.m., again describing it as degar vela.

8.From the above depositions, it is manifest that the witnesses have contradicted the time of information and demand. While the plaint alleges

the time of knowledge to be 03:00 p.m., the oral depositions of the witnesses shift the time to around 05:00 p.m. during Asar or degar vela.

Moreover, all the witnesses, including the respondent, have failed to mention the year in which the transaction and demand allegedly took place. Such contradictions in time, absence of year, and variance between the plaint and testimonies cast serious doubts on the authenticity of the alleged immediate demand (Talb-i- Muwathibat), which is a sine qua non for maintaining a pre-emption claim.

9.It is pertinent to mention here that the respondent, while filing the plaint, did not disclose the names of the witnesses of the notice of Talb-i- Ishhad. The omission of such material particulars is of considerable significance because under the settled principles of law relating to pre-emption, the notice of Talb-i-Ishhad must be proved through credible evidence and the attesting witnesses play a pivotal role in establishing its authenticity. The absence of their names in the plaint not only weakens the evidentiary value of the claim but also casts doubt upon the veracity of the proceedings alleged to have been undertaken in compliance with the mandatory requirements of

law. Such concealment of essential details creates a serious infirmity in the respondent’s case, thereby adversely affecting the substantiation of his right of pre-emption.

10.Furthermore, it is important to scrutinize the testimony of the informer, Dilawar Khan (PW-4). In his examination-in-chief, he deposed that he heard the sale transaction in the mourning. However, this version of events gives rise to significant legal and factual concerns. Most notably, who is claimed to be the primary source of information regarding the sale transaction, was not produced as a witness by the respondent before the learned trial court.

The failure to summon and examine that person, a crucial link in the chain of events leading to the demand, seriously undermines the credibility of the respondent’s claim. Since the information about the sale and the identities of the buyers originated solely from that person who informed the informer, his non-production leaves the testimony of PW-4 uncorroborated and raises a reasonable doubt as to whether such information was ever reliably conveyed. In the circumstances, presumption would be that had person been produced he might not have supported the stance of the petitioner. The fate/effect of non-production

of informer in a pre-emption case cropped up before the Hon'ble Supreme Court in case, titled, "Muhammad Mal Khan v. Allah Yar Khan" (2002 SCMR 235), wherein one Tayya Khan was the informer of suit sale, who, during trial could not be produced. The Hon'ble Supreme Court held that:-

"It was also not clarified/explained by the plaintiff in his statement as to why Tayyab Khan could not be produced as it was not stated that he was either won over by the other side or that he had turned hostile towards him for some other reasons or that out of fear of the defendant or for some other consideration the defendant was successful to prevent him to deposed in favour of the plaintiff. Article 129 (g) of Qanun-e- Shahadat reads:-

"That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."

Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan from examining as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him.”

11.Same view has been reiterated by the Hon'ble Supreme Court in case titled, "Abdul Rehman v. Haji Ghazan Khan" (2007 SCMR 1491), in the following words:-

"A pre-emptor claiming right of pre- emption, as a matter of prudence, ought to seek corroboration to satisfy reasonably the judicial mind of the Court that Talb-i-Mwathibat was made by him enabling him to make the other demand (Talb-i-Ishhad). In this case, failure to put the informer in the witness-box, seen from that angle as well, raises a logical presumption that appellant feared that the witness, if examined, could not stand the test of cross- examination or that the witness would not support him or that his evidence would be against him".

12.In case titled "Subhanuddin and others v.

Pir Ghulam" (PLD 2015 Supreme Court 69), the Hon'ble Supreme Court has held the non- production of informer in a pre-emption suit is a sufficient ground for dismissal of the pre-emptor's suit. For the sake of convenience, the relevant part of the judgment is reproduced below:- "It was, the respondent's case that upon his return from Punjab he was informed about the sale by his brother (Taj Ali). Taj Ali, lives in the same house as the respondent, but did not know whether the respondent was in the village when the sale took place, nor when the respondent returned from the Punjab and that he was informed about the sale by his nephew Nazir. The initial burden of proof with regard to these facts (the conveying of the information of sale and price) lay upon the respondent, and to establish the same Nazir could have been called to give evidence, as the evidence in this regard (which was oral), was required to be direct and of the witness who saw, heard or perceived

it himself (Article 71 of the Qanun-e- Shahadat Order, 1984), but Nazir was not produced as a witness.

Consequently, an important and relevant fact was not proved by the respondent and on this ground alone the suit merited dismissal as Talb-i- Muwathibat is required to be made immediately upon learning of the sale."

13.Placing reliance and driving guidance from the judgments (supra) of the august apex Court, I am firm in my view to hold that the respondent has failed to prove Talb-i-Muwathibat in accordance with law.

14.As regards Talb-i-Ishhad, the respondent has asserted in his plaint that after making Talb-i- Muwathibat on 19.10.2008, he complied with the second mandatory requirement by issuing a notice of Talb-i-Ishhad, allegedly duly signed and attested by witnesses, and dispatched the same to the petitioner through registered post accompanied by an Acknowledgement Due (AD) card. However, in order to establish this essential step, the respondent was bound to produce cogent and convincing evidence before the learned trial court. Unfortunately, he failed to discharge this burden. Neither was the concerned Postman, who could have verified the actual service of the registered article upon the petitioner,

produced as a witness, nor was Malik Masood ur Rehman Awan, Advocate, the scribe of the notice, examined to prove its execution and attestation.

The non-production of these crucial witnesses and supporting documentary evidence, particularly the AD card which constitutes the primary proof of service of such notices, creates a serious evidentiary gap. In pre-emption cases, strict compliance with the statutory requirements of Talb-i-Muwathibat and Talb-i-Ishhad is a sine qua non, and any lapse therein renders the claim vulnerable. The absence of credible proof of service of Talb-i-Ishhad not only undermines the respondent’s assertion of having complied with the mandatory legal formality but also raises grave doubt as to whether the second demand was ever validly made and served in accordance with law.

Such deficiencies, being material in nature, go to the root of the respondent’s case and substantially weaken the foundation of his pre-emption claim.

The apex court in case reported as Munawar Hussain v. Afaq Ahmed (2013 SCMR 721) the apex Court has held that:-

"So far as Talb-e-Ishhad is concerned, admittedly the service on one of the two petitioners- defendants/vendees namely Muhammad Akram was not personally effected and according to

learned counsel for the respondent, it was effected on his brother and co- vendee Munawar Hussain appellant. The afore-referred service is not a service in the eyes of law. It is not the case of respondent/plaintiff either that service of notice of Talb-e- Ishhad on the said vendee was made through registered post acknowledgement due. The contention that service on the co- vendee should be presumed as service in law is not backed by any provision of law and therefore, is not tenable."

15.The same view has been reaffirmed by the Honourable Supreme Court in case titled Sardar Muhammad (deceased) through LRs Vs Taj Muhammad (deceased) through LRs and others (2023 SCMR 1113).

16.In light of the foregoing discussion, it is evident that the learned appellate court, while passing the impugned judgment and decree, committed a gross illegality and material irregularity by accepting the appeal filed by the respondent. The appellate court failed to properly appreciate the factual discrepancies and legal deficiencies in the respondent’s case, particularly with regard to the procedural requirements of Talb-i-Muwathibat and Talb-i-Ishhad. Its decision appears to be based on an erroneous interpretation of the evidence and a misapplication of the relevant legal principles. As such, the

impugned judgment and decree is not sustainable in the eyes of law and warrants interference by this court in its revisional jurisdiction.

15.For the reasons discussed above, this revision petition is hereby accepted.

Consequently, the impugned judgment and decree passed by the learned appellate court is set aside, having been rendered without proper appreciation of the facts and misapplication of the settled legal principles. As a result, the judgment and decree passed by the learned trial court, being well- reasoned and in accordance with law, is restored in its entirety. The respondent’s claim, having failed to meet the mandatory legal requirements for the exercise of the right of pre-emption, stands dismissed accordingly.

17.Since the primary suit of the respondent has already been dismissed on merits, the very foundation of his connected revision petition ceases to exist. It is a settled principle of law that when the main lis stands adjudicated against a party, any ancillary or connected proceedings dependent upon the fate of that lis cannot be sustained independently. In this view of the matter, the connected revision petition bearing No.382-

A/2012, being devoid of any merit and having lost its substratum, is accordingly dismissed.

Announced:

Aftab PS*/ JUDGE