Mehboob Shah Vs Sardar Ali Khan through L.Rs

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Mehboob Shah Versus Sardar AIi Khan and 10 others

For petitioner Hafiz Muhammad Hanif, Advocate For respondents Haji Habibur Rehman Advocate Date of hearing 27.02.2020

JUDGMENT

ASAD H. J.. The petitioner, Mehboob

Shah, through this Civil Revision Petition under Section 115 Code of Civil Procedure, 1908 has challenged the judgment and decree dated 07.11.2015 passed by the learned District Judge, Lakki Marwat who affirrned the judgment and decree dated 19.9.2012 passed by the learned Senior Civil Judge, Lakki Marwat, whereby his suit lbr possession through pre- emption was dismissed.

2.Precisely the facts giving rise to the instant Revision Petition are that the suit property sold in favour of the respondents vide registered sale-deed No. 6i dated 20.9.2010 was sought to be pre-en-rpted by the petitioner on the ground of his being shafi-sharik, shafi-Khalit and shafi- Jar with the assertion that he had performed the requisite Talabs in accordance with law. The suit was contested by the respondents, inter alia, on the ground that the petitioner had no

preferential right nor performed Talabs in accordance with law. The leamed Trial Court on divergent pleadings settled issues and called upon the parties to adduce evidence in support of their respective claims. After close of the evidence the parties were heard at length where the petitioner/plaintiff failed to convince the trial court and as such vide judgment dated 19.02.2012, suit of petitioner/plaintiff was dismissed' On appeal preferred by the petitioner, learned appeal Court dismissed the same vide judgment and decree dated 07 .l I .201 5, hence this Revision Petition.

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

4.The petitioner pre-empted the sale which was effected through sale-deed No.67 dated 20.9.2010. It is the case of the petitioner that he attained the knowledge of the sale in question on 10.10.2010 through Faqir Hassan, where he pronounced that he wilt exercise his right of pre-emption as he has a superior right qua the vendees. Since sale in question was in favour of the respondents/defendants so as per stance of the petitioner he sent notices of Talb-i-Ishhad to them on 13.10.2010.

5.For the purpose of properly appreciating the matter in issue, issue No.4 is relevant which was framed with regard to the performance of talbs. The learned Courts below held that the petitioner/plaintiff has failed to establish performance of Talb-i-Muwathibat and Talb-i-Ishhad. I

have examined the relevant evidence as well as the findings arrived at by the learned District Judge, Lakki Marwat qua the performance of talbs. I am of the considered view that the findings of the learned Additional District Judge, Lakki Marwat finds support from the available evidence' Admittedly the sale-deed was effected in favour of the respondents/defendants. It is discernable from the record that Raees Khan recorded his statement as PW-6 wherein he has made contradiction regarding the time of availability of petitioner in his baithak and thereafter pronouncement of talab-e-Mawathibat, in cross-examination, he stated that at 03.30 P.M, Faqir Hassan (informer) arrived at his baithak and informed the petitioner about sale transaction upon which the petitioner made his jumping demand of exercising of his right of pre-emption over the suit land. Thus not only the petitioner but the witness in whose Baithak talab-e- mawathibat was made is not clear about the timing, rather he has contradicted the narrative contained in the plaint wherein the time of knowledge has been shown as 04:00 PM. Admittedly in order to succeed a pre-emptor must prove the essential condition for exercise of such right of pre-emption in accordance with section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 but the petitioner has desperately failed to prove it.

6.It is a settled principle of law that where a fact is required to be proved through oral evidence, such evidence

must be direct and of the primary source. The foundation of such direct evidence in the case about the proof of the fact of Talb-i-Muwathibat, is the person who had made the Talab. If the pre-emptor in his plaint narrate time of knowledge as 04:00 P.M, whereas his informer took different stance of such facts cannot be considered trustworthy and acceptable. In this regard reference may be made to the case of Humayun Naseer Cheema and 3 others Vs. Muhammad Saeed Akhtar and others Q007 CLC 8191 and Haji Muhammad Usman through his legal heirs Vs.

Muhammad Paryal (!257 CLC-552. Thus, I am persuaded to hold that the petitioner had failed to prove making of Talb-e-Muwathibat in accordance with Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.

7.It has been provided in Section 13(3) of Khyber Pakhtunkhwa Preemption Act, 1987 that where a pre-emptor has made Talb-i-Muwathibat under sub-section 2 of Section 13 of the Act Ibid he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing, attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption. The plaintiff has averred that on 03.10.2010 he dispatched notice of Talb-i-Ishhad to the defendants which were duly attested by truthful witnesses, however under the law mere sending of notice of Tatb-i-

Ishhad by pre-emptor is not sufficient and acknowledgment due slip must be signed by the vendee and not any other person and it is now the settled principle of law laid down through case law reported as "Allah Ditta throagh L.Rs and others Vs. Muhammad Anar' (2@Ml|-8,!!)that:- "Affirmative onus to prove the receipt of notice of Talb-i-Ishhad was on the pre- emptor, therefore, notwithstanding any admission of the attorney of the vendee, it was obligatory on the pre-emptor to have proved the sending of notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman"

8.In this case no affirmative evidence has been produced by the plaintiff to establish that notice of Talb-i- Ishhad was dispatched to the defendants or received by them. Moreso, PW-4 (Postman) in his cross-examination admitted that on return of registry envelops, he has not marked attendance of any private person nor recorded statement of witness thereto. This all depicts that sending of notice of Talb-i-Ishhad to the defendants has not been proved.

g. Besides, it has also been noted that scribe (petition writer) of notice has not been produced in wifiress box and plaintiff himself conceded that the notice was dispatched to the defendants through registered post, in such a situation the scribe of notice was necessary to be produced

in witness box but he has not been produced in trial. It has been laid down in case law reported as "Muhammad RaJique Vs. Muhammad Shajique and others" (].Q-LJ)W 1t!!) wherein it has been held as under:-

"The clerk who had wriffen notice of Talb-i- Ishhad was not produced as witness in case, therefore, pre-emptor had not successfully proved Talabs in accordance with law"

10.As discussed above, pre-emptor is not only required to prove the requirements of Talb-i-Muwathibat but also that he is bound to establish requirement of Talb-i- Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgment due to the vendee confirming their intention to exercise the right of pre-emption but the evidence produced by plaintiff has been found with material contradictions and the plaintiff despite burdened to prove the requirements of Talb-i- Muwathibat and Talb-i-Ishhad has failed to prove the same and once the plaintiff fail to prove performance of Talbs in accordance with law no decree for possession through pre- emption can be passed in their favour.

11.Petitioner has failed to point out any illegality or legal infirmity in the concurrent findings of learned Courts below, which appear to have been passed in terms of the statutory provisions and evidence brought on record, warranting no interference of this Court in the exercise of its revisional jurisdiction. Even otherwise, this Court seldom

interferes in concurrent findings arrived at by learned Courts below while exercising power under section 115 C.P.C.

unless and until findings on the face of it are against evidence or so patently improbable or perverse that to accept the same could amount to perpetuate a grave miscarriage of justice or if there has been any mis- application of principles relating to appreciation of evidence or if findings could be demonstrated to be impossible, absolutely illegal and unwarranted under the law.

t2. In view of the above discussion, this petition, being devoid of merits, is hereby dismissed, with no order as to costs.

Announced Dt:27.2.2020 Hasnain/* JUDGE

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s1, (S.B)

Hon'ble Mr. Justice Sahibzaila Asailullah