Dawa Khan and another Vs Muhammad Izhar Khan

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IUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(ludicial DePartment) Civil Revision No. 165-P of 2020 with CM No.252'P of (Da,va Khan & another VS Muhammad lzhar Khan)

JT'DGMENT

Date of hearingt WW3.

Petitioners by: Mn Fazle Maula Khan, advocate.

Respondent by: IWs. Atta Ullah Khan Tangi and Javid Gul, advocates.

*rr*rr MOHAMMAD IBRAHIM KHAN, J.- On account of sale mutation No. 7509 attested on 29.01.20L3 as stated to be for a sale consideration of Rs. 40,000/- but an inflated rate of Rs. 135,000/- has been mentioned therein; this transaction has been preempted by Muhammad lzhar Khan by introducing his suit bearing No. 4ll instituted on 13.12.2016 which finally came for its decision before the civil Court on 26.09.2018. The superior right has been claimed on account of co-sharer in the suit property and likely under compliance of the mandatory talbs, the prayer has been set in the plaint on the basis of

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cause of action.

2.This suit was hotly resisted on the basis of various legal and factual objections. The averments taken in the pleadings of the parties were reduced into the following issues: -

I. Whether the plaintiff has got a cause of action? OPP

2.Whether plaintiff is estoPPed to sue the defendants? OPD

3.Whether plaintiff has waived of his right of preemption? OPD

4.Whether suit of the plaintiff is within time? OPP

5.Whether plaintiff has fuffilled all the requirements of talabs?

OPP

6.Whether plaintiff has got the superior right of preemption?

OPP

7.Whether the sale consideration has been faed and paid in good faith? If not, then what is the market value of the suit

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t t/,. property? OPP

8.Whether the plaintiff is entttled to the decree as pralied frr?

OPP

Relief,

3 The learned Civil Court, on the basis of the list of witnesses so furnished, gave fair chance to

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both the parties to adduce their evidence and accordingly, while examining their own witnesses, the suit was finally decided by the learned civil Court by giving its obsenrations on each issue; thus, under the relief, the suit was found not competent for the grant of a decree; hence, it was dismissed vide judgment dated 26.09.2018. Next, the plaintiffl respondent Muhammad Iztrar Khan preferred a Civil Appeal No. 381t3 against the observations and findings of the learned civil Court before the learned appellate Court. In the meanwhile, the learned appellate Court also received civil appeal No. 36113 on behalf of Dawa Khan & another in collision with Muhammadlzhar Khan as cross objection appeal on issues No. 2, 3,4 & 6 andpartially on issue No. 5.

Both these appeals were consolidated and vide judgment dated 30.11.2019 the learned appellate Court allowed the appeal No. 38113 filed by / Muhamm ad lzhar Khan; accordingly, the decree of the learned trial Court was set aside and the suit was decreed in his favour. He was also directed to deposit the remaining 213'd of the preemption amount within thifty days whereas, the cross objection appeal fiIed by Dawa Khan & another was found devoid of merits and was dismissed.

4.Dawa Khan and Nadir Khan, both father and son, have preferred this revision against the judgment of the learned appellate Court dated 30.11 .2}lg which, according to them is against the canons of justice and that the appeal preferred by Muhammad lzhat Khan bearing No. 38113 was wrongly allowed and the appeal preferred by the petitioners bearing No. 36113 was also wrongly dismissed.

5.Heard. Record gone through.

6.In order to get a favourable verdict of the Courts in preemption suits, the provision of Section 13 of the Preemption Act, regarding the mandatory talbs is utmost necessary without which, the suit for preemption cannot achieve the target for favourable decree where the plaintiff/ respondent Muhamm ad lzhar Khan has tried his level best by examining important witnesses i.e. the patwari halqa It/ who produced the relevant revenue record alongwith mutation concerning the sale transaction, relevant registration clerk of Post office Tangi and village Postman Post office Tangi. These witnesses have confirmed that the registered deed whereby notice of talb-e-ishhad was communicated was rightly served upon the defendants/ petitioners. It is on record that

the amount of Rs. 40,000/- is not the market rate while an amount of Rs. 135,000/- though pleaded to be inflated but has been fixed in good faith being the real price of the sale consideration on the basis of which, the land measuring 1 kanal 5 marlas in the suit khasra numbers has been purchased. Even otherwise, the suit of the plaintiffl respondent was dismissed by the learned civil Court for other reasons and even the appeal against the same verdict was accepted for certain other reasons, however, the important aspect for the grant of decree is that the very initial talb i.e. talb-e-Muwathibat is to be proved through those persons who communicated the information regarding the sale transaction. In this respect para-3 of the plaint is worth perusal, which is reproduced below: -

/ A-r.r de ts oJ.fL e+i JS deY aS ,.rrt 5:00 e.ija crl.;-c+ jr* $ 31.01.2013 d,&le r,en .tlg d*ite lLe nqpa .FA4

4 l$ oJ+r ljA ^,13 + rtrj r.sl gSl-, "l.3p s3A +rl; 6ti ll*l rl!. #.S..S.o 7 Coming to the statement of PW-4

Muhamm ad lzhar Khan, he was present in his Huira

alongwith his brother Muhammad Ibrar Khan situated at Ahmad Abad Tehsil Tangi, District Charsadda on 31.01.2013 Thursday at 5.00 PIWAsar Time, when the informer Imad Ashiq came there who stated that he had heard from the persons that Dawa Khan and his son have purchased the property in the suit khata and accordingly, he expressed his intention to preempt the suit being its co-sharer, participator in amenities and appendages and contiguous owner with the suit property. In support of this statement, while statement of PW-5 Imad Ashiq is gone through, in his examination in chief he states that on 3 1 .01 .2013, Thursday, he came out of his Huira two persons, whom he knew by faces but do not know their names, were talking that Dawa Khan and his son have purchased the property in the suit Khata.

From there, he came to the Huira of Muhammad lzhar Khan and informed him in presence of his

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brother.

8.What actually is necessary to account for essential elements of talb-e-Muwathibat are the time, date and place when the preemptor obtained the first information of the sale and the immediate declaration of intention by the preemptor to exercise his right of preemption, there and then on obtaining

such information, there must be need to maintain the chain of source of information as to the fact of sale from the very first person who has the direct knowledge or pass on the same to the person who tastly informed the preemptor, which must be complete. The wisdom was derived from the judgments of the Hon'ble Supreme Court of Pakistan reported in PLD-2015-SC-69 and 2022-SCMR- l23l wherein it has been held mandatory to examine the person who either conveyed the sale information to the person who informed the preemptor or from the conversation in between those two persons who had learnt about the sale which was funher communicated to the PreemPtor.

g. This Court, following the wisdom of the Hon'ble Supreme Court of Pakistan while disposing of Civil Revision No. 370-P of 2017 titled "Sardar Muhammad Khan VS Rais Khan Afridi" in similar

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situation, had held that the persons who had informed the informer about the sale transaction while talking about it when have not been examined, as such, the essential elements of talb-e-Muwathibat have not been fulfilled.

10.Obviously, the statements of PW-4 Muhamm ad lzhar Khan and PW-5 Imad Ashiq are

silent with regard to naming those persons who at first instance had obtained the knowledge of the sale transaction and while those have not been even named and nor even examined, thus, if at all, other mandatory talbs i.e. talb-e-Ishhad and talb-e- Khusumal are made in accordance with law, the same will be of no useful purpose and the plaintiff/ respondent cannot be granted decree for preemption' 1 1. The findings in the judgment of the leamed appellate Court cannot sustain in the eyes of law in view of observations above; hence, while allowing this revision, the judgment of the learned appellate Court is set aside resultantly, the suit of the plaintiffl respondent stands dismissed.

Announced, Dt: 16.02.2023 TADGE Zia/r

(S.B.) Hon'ble Mr. Justice Mohammad Ibrahim Khan' J