Khalil Ullah Vs Awas Khan

IT]DGMENT SHEET

IN THE PESHAWAR HIGH COURT, BANNU BENCH

C.R No. O9-B/2o19

Khqlil Ulloh Versus Awos Khon etc

For petitioner Muhammad Usman Khan. Advocate For respondents Nemo

Date of hearing: 10.10.2019

JUDGMENT

SAHIBZADA ASADULLAH, J.- Through the instant Revision Petition filed under section ll5 Code of Civil Procedure, 1908, the petitioner has impugned the judgment and decree dated 26.9.2018, rendered by learned Additional District Judge-II, Bannu, whereby his appeal against the judgment and decree dated 21.2.2018 passed by learned trial court was dismissed

2.The facts in brief leading to this Civil Revision are that the suit property sold in favour of the respondents vide mutation No. 1914 dated 17.12.2013 was sought to be pre- empted 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

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ground that the petitioner had no preferential right nor performed Talabs in accordance with law. The learned Trial Court on divergent pleadings settled issues and called upon the parties to adduce evidence in support of their respective claims. After trial, the suit of the petitioner/plaintiff was dismissed vide judgment dated 21.02.2018 and appeal preferred thereagainst was also met the same fate vide judgment and decree dated 26.9.2018

3.Dissatisfied from the judgment and decree of appeal Court, the petitioner has now impugned the same before this Court through this Revision Petition.

4.Orders of the trial Court, as well as, the appeal Court were examined in light of arguments at preliminary stage

5 Opening brief the learned counsel for the petitioner has submitted that the impugned judgments and decrees are against law and facts of the case; the same suffer from gross misreading and non-reading of the material available on the record. He also contended that learned Courts below have acted mechanically while dismissing the suit of the petitioner, which is not sustainable in the eye of law as the learned Courts below have failed to apply section 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 in its true spirit;

as such the findings of the learned Courts below on issues

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No.3 is erroneous. He further maintained that the learned Courts below have failed to exercise vested jurisdiction in accordance with law and by travelling beyond the same, non- suited the petitioner mere on the basis of surmises and conjectures. Therefore, by allowing the petition in hand, impugned judgments and decrees may be set aside and suit instituted by the plaintiff/petitioner may be decreed as prayed for

6.First of all this Court has to dilate upon the question whether the plaintiff/petitioner has performed talbs in view of section 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 or not. For proving the jumping demand, it is the duty of the plaintiff to plead the date, specific time and specific place of performance Talab-i-Muwathibat in the plaint and it should also be re-asserted in the evidence. Perusal of the record reveals that plaintiff/petitioner appeared as PW-6 who narrated the same stance as averred in the plaint regarding performance of Talb-e-Mawathibat. He stated in his examination in chief the date of performance of talb-e- Mawathibat as 25.12.2015 which is in negation of his stance in the plaint. The petitioner also testified that PW Sanaullah (informer) gained knowledge of the disputed sale mutation on the day of its attestation who appraised him on the same day of the alleged sale transaction. If this evidence is placed and

seen in juxtaposition with plaint, it can be easily noticed that sale mutation No. 1914 under pre-emption, has been attested on 17.12.2013, whereas in plaint, he has mentioned the date of knowledge of sale mutation followed by performance of Talb- e-Mawathibat as 25.12.2013.

7 In legal parlance, departure from pleading is not permissible under the law. I have no doubt in concluding that lapse of 08 days in performing Talb-e-Mawathibat is fatal to right of pre-emption and claim of the plaintiff/petitioner also fails on this count. It is worth mentioning here that the right of pre-emption is the special and personal act of the pre-emptor, conferred by the Shariah which later became the part of Islamic Jurisprudence. In the present case, the informer S anaullah has c ate gorically admitted during cro s s-examinati on that he has filed the suit on behalf of the plaintiff/petitioner declare him no preferential right of pre-emption over suit property. Likewise, he was pursuing the case in the status of attorney for plaintiff/petitioner, this ground too, is incurable on the part of petitioner and badly dent upon his case. Besides, the petitioner failed to establish his case by producing truthful witnesses and there are strong contradictions between the stance of plaintiff and his wifiresses. In such circumstances, the petitioner/plaintiff miserably failed to prove Talb-i- Muwathibat in accordance with law. Reliance is placed on the

case of "Muhammad Anwar Vs. Safeer Ahmed and 5 others" 2017 S C M R 404. wherein-it has observed as under:- ---S. 13--- Suit for pre-emption... Talb-e- Mawathibat .... Scope and proof ....'Talb-i- Mawathibat was a sine qua non for maintaining a suit for possession through pre-emption .... Time, date and place of Talb-e-Mawathibat must necessarily be pleaded in the plaint alongwith the source of information of the sale pre-empted.

8 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-e-Muwathibat, is the person who had made the Talab. If the pre-emptor in his examination-in-chief neither states nor explains about the facts regarding Talb-e-Muwathibat i.e.

date, month and year then statement of such facts by his witnesses cannot be considered trustworthy and acceptable. In this regard reference may be made to the case of Humayan Naseer Cheema and 3 others Vs. Muhammad Saeed Akhtur and others (2007 CLC 8D and Haji Muhammad Usman throagh his legal heirs Vs. Muhammad Paryal (U!7 CLC.

55?.Thus, I am persuaded to hold that the petitioner had failed to prove making of Talb-e-Muwathibat in accordance

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with Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 9 Pursuant to the above discussion, even if it is admitted that the respondent performed and proved Talb-e- Ishhad, non-proving of primary talb i.e Talb-e-Muwathibat is sufficient to disbelieve the version of the respondent, as performance and proving of all talbs is essential in order to succeed in such suit. When the respondent/plaintiff has failed to prove performance of Talbs, as per requirement of law enunciated under section 13 of the Khyber Pakhtunkhwa Pre- emotion Act, 1987, no decree for possession on the basis of pre-emption, even if the pre-emptor enjoys superior right, can be passed in his favour. Reliance is placed on Mst. SAHIB JAMALA v. FAZAL SaBHAN and 11 others (PLD 2!!5- Suoreme Court 977t wherein it has observed as under:- ---S. l3--- Right of pre-emption... Provision of S. 13, Punjab Pre-emption Act, l9l3 are based on the concept of Talbs which are recognized as rule of Islamic Law of PLre- emption --- Fulfillment of requirement of Talbs is essential for exercise of right of pre- emption and without Talb-e-Mawathibat and Talb-e-Ishhad, right of Talb-e-Khusumat is extinguished.

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10.Even otherwise, concurrent findings of facts cannot be upset by this Court in its revisional jurisdiction in a casual manner. The same cannot be set at naught unless it is proved that the same are either perverse or erroneous in view of dicta handed down in the cases of "Abdur Rahim and another. Vs. Mst. Jantay Bibi and others" (2000 SCMR 346). "Haji Muhammad Din. Vs. Malik Muhammad Abdullah' (PLD 1994 SC 291) and "Muhammad Rasheed Ahmad. Vs. Muhammad Siddique" @LD 2002 SC 293). It is settled proposition of law that each and every case is to be decided on its own peculiar facts and circumstances. It is also settled law that finding on question of fact or law, erroneous the same may be, recorded by the court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section I 15 Code of Civil Procedure, 1908 unless such findings suffer from illegality or material irregularity and caused serious miscarriage ofjustice

l1 The resume of above discussions is that learned Courts below have properly exercised the jurisdiction vested with them and the orders passed by them are in conformity with the law to which no exception can be taken.

12.The upshot of the above discussion is that the Revision Petition has no force and therefore, the same is hereby dismissed in limine with no order as to costs Announced Dt: 10.10.2019 4.a Hasnain/*

JADGE

Hon'ble Mr. Justice Sohibzodo Asodulloh

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