Rab Nawaz Khan Vs Dilawar Khan & 18 others

JI]DGEMENT SHEET

IN TIIE PESHAWAR HIGH COI]RT,

BAI\INU BENCII

lJudicial Departmeng

C.R. No. 22*Bl20lE.

Rab Nawaz Khan.

Vs.

Dilawar Khan & 18 others.

JUDGEMENT

Date of hearing: - 20.06.2023 For petitioner: Mr. Salamat Shah Masood, advocate.

For respondents: Mr. Zafar Jamal Khattak, advocate.

EAZAL SUBHAN, J. The instant civil revision petition tu/s ll5, Civil Procedure Code, 1908, is filed by the petitioner and has called in question the judgments and decree passed by the learned Civil Judge-II, Takht-e- Nasrati District Karak dated 20.10.2017 and that of the leamed Additional District Judge-II, Karak dated 24.10.2018, whereby suit of the petitioner was concurrently dismissed. Through this civil revision, the petitioner has prayed for setting-aside both the judgments ofthe courts below and passing a decree in his favour.

) Brief facts of the case are that the petitioner instituted a suit for possession through pre-emption of property bearing Khata No. 497, khasra No. 1453

measnring |l-Kanal ud \3-Marlas situated at Mauza Siraj Khel, Karak, (hereinafter called suit property), sold through mutations No. 3079 and 3080, both attested ot 23.07.2013. It was contention of the petitioner in his suit that the suit property was ownership of Rehman Gul etc who sold it to the respondents through the above mentioned mutations, for sale consideration ofRs.20,000/-, however, to defeat his right of pre-emption, an exaggerated amount has been mentioned in both the mutations. That on 23.07.2013 (Tuesday), he was present at Jalssa-e-aam, Tehsil Headquarters Takht-e-Nasrati District Karak along with his sons Muhammad Ilyas Khan and Riayat Khan when at I l:00 hours, mutation No. 3079 was attested, whereafter, he immediately declared his intention to pre-empt the suit property sold through said mutation.

Similarly, at ll:15 hours mutation No. 3080 was attested, whereafter, he again stood up and declared that he would pre-empt the suit property sold through mutation No. 3080 and thereafter, he went to the revenue offrcer and informed him about his intention to pre-empt the suit property mutated through said mutations and the revenue offtcer made entries to this effect on the mutations. On29.07.2013, he along with

Muhammad Ilyas and Riayat Khan went to Amir Mohabat Khan, Deed writer, where notice of Talb-e- Ishhad were prepared and sent to the respondents through registered A.D, individually. According to him he has a superior right of pre-emption being co-owner and having contiguous property and also enjoying immunities attached to the suit property.

3 After institution of the suit, the respondents were summoned, who filed their written statement, wherein they specifically raised preliminary objections of res-judicata and further contended that despite knowledge of the sale in favour of the respondents, the petitioner did not expressed his right of pre-emption by making Talabs at the relevant time, hence, his suit is not maintainable and is liable to be dismissed.

4.From the pleadings of the parties, the leamed trial court framed issues, whereafter, both the parties availed the opportunity of producing their desired evidence. The petitioner examined Patwari Halqa Muhammad Imran and Hazat Ullah as PW-l, Postman Muhammad Ajmal Khan and deed written Amir Mohabat Khan, whereas, the petitioner himself appeared as PW-5 and produced Riaz Khan and Riayat

Khan, the two marginal witnesses of notice Talb-e- Ishhad. From the other side, Gulab Khan s/o Adab Gul appeared as attorney for respondents and then closed his evidence. The learned trial court after hearing arguments of leamed counsel for the parties, vide its judgment dated 20.10.2017, dismissed the suit of the petitioner, whereafter, he challenged the said judgment and decree through appeal No. 30113 of2017, however, it also met the same fate. Aggrieved from the said judgments and decrees, the petitioner has filed this Civil revision petition.

5 Arguments of leamed counsel for parties heard and available record gone through.

6 In a suit for pre-emption Talbas, i.e, Talb- e-Muuathibat and Talb-e-Ishhad and Talab-e- Khasumat has attained such a pivotal and decisive role that if a preemptor has proved his superior right of preemption within the meaning of section 6 of the Act, even then, he can be non suited, ifhe failed to establish that Talabs u/s 13 of the Khybver Pakhtunkhwa, Pre- emption Ac! 1987, (Act) were performed in accordance with law. At the same time where there is undeniable evidence on record that the preemptor had knowledge of the sale much earlier but he had not expressed his

intention to preempt the property sold and kept silence then the provision of section 15 of the Act shall come into play. The relevant provision is reproduced below for the sake ofconvenience and better understanding:- "15. Waiver of ,he dght o! pre-emption- The right of pre-emption shall be deemed to hqve been waived d the pre-emptor has acquiesced in the sale or has done any other act of ommission or commission which amounts to waiver of the right of pre- emption."

7 In the present case, it is on the record that the petitioner had knowledge of the sale much earlier than the date when he allegedly czrme to know of the sale in the congregation where mutations in question were attested. The statement of Patwari Halqa recorded as APW-I, shows that the sale mutation No. 3079 and 3080 were entered on 13.05.201I in the names of Zahir Shah etc (respondents) and these were attested on 23.07.2013. Though petitioner has denied to have filed any suit challenging the suit mutations through separate suit, however, PW-6 (Ilyas Iftan) in his cross- examination has admitted that they had instituted suit No. 232/l of the year 20l l but his father had not filed any preemption suit rather he instituted a declaratory suit against these mutations. He further replied in cross- examination that he had knowledge of the entry of these

mutations much early to 30.05.2011. Gulab Khan attomey of respondents in his statement produced record ofthe previous suit No. 232/l of the year 20ll dismissed on 15.01.2012, copy whereof was placed on file as Ex.DW-ll2 and contended that the petitioner had knowledge of these mutations but he did not challenged it through exercise ofright ofpreemption.

E From the record it is an irrefutable fact that the vendees @espondents) purchased the suit property and mutations No. 3070 sand 3080 were entered which were challenged by the petitioner through a declaratory suit. Statement of Patwari Halqa recorded as APW-I, also reveals that as a consequence of sale, possession was also handed over to Hazrat Gul etc (respondents) and are shown in possession in sketch Ex.APW-l/2, but the petitioner did not performed Talb-e-Mmoathibat or Talb-e-Ishhad at the relevant time. Sale has been defined in section 54 of the Transfer of Propefi Act, 1882, as "a lransfer of ownership in exchange of a price or promised or part paid and part promised" md delivery of tangible immovable property is suffrcient to complete the sale, pending the formality of transfer through instrument, i.e, registered deed or mutation and therefore, once sale of the suit property has come into

the knowledge of the preemptor, then he need not to wait for attestation of mutation or registration and was to was to perform Talabs there and then. In the case of "Muhammad Younus and 3 others v. Ghulam Yasin and 10 olhers", reported in 2014 CLC (Peshawar) 711, itwas held that:-

" ----------Expression "sale" given in section li(3) of the Act ibid has not subjected the same to the attestation of any instrument nor excluded the oral sale or efected through unregistered agreement to sell from the ambit of sale. The non-attestalion of sale mutation or registlation of deed would have no effect upon the transaction entered into in respect of immovable property in lieu of sale consideration. Latter attestation of the instrument or for that matter the cancellstion of the same would not in any way defeat the right of the pre-emptor as cause of action to exercise right accrued in his fovour, the moment the transaction took place."

Similar observations were made by the august Supreme Court of Pakistan in the case of "Muhatntnad Nazeef Khan v. Gulbal Khan and others" reported in 2012 SCMR 235,thati "For the purpose of exercise of the right of pre-emption, sale must be complete in all respect in accordance with its definition given tn section 2(d) of the Act, nanely, perm1nent transfer of the property and payment of valuable consideration. The right, therefore, cannot be exercised until the two conditions exist. The sdid definition of "Sale" becomes relevant when controversy arises as to whether or not the property in question was sold, conferring right of

preemption on the pre-emptor/plaintiff The fulfilment or otherwise of the two conditiow mentioned in section 2(d) of the Act, however, mdy not be relevant in the context in which the word t'Sale" in subsection (3) of section 13 of the Act has been used. The lalter provision mandates the pre-emptor to malre immediate demand in the some si ing or meeting in which he acquires knowledge of the sale.----

9.Thus, as per statement of Patwari Halqa, the suit propefty was already transacted for valuable consideration and possession thereof was also handed over to the respondents thereby completing the sale and the petitioner had knowledge of the sale in the year 20ll but he did not exercised his right ofpreemption at the relevant time but preferred to assail it through declaratory suit, hence, making Talb-e-Mtrwathibat arrd Talb-e-Ishhad at the time of attestation of mutations, in the circumstances, would not be considered to be in accordance with provision of section 13 of the Act. It is, therefore, held that by not exercising his right of preemption soon after coming into the knowledge of sale in the year 2011, the petitioner by his act of omission has waived his right of preemption and was rightly non-suited by the two courts through impugrred judgments.

10.From the record it is evident that petitioner while filing suit for preemption, has purposely

concealed the factum of earlier suit. At the same time, the relevant record of previous suit was also not annexed with this civil revision, hence, such conduct of the petitioner would amount to concealment of material fact.

11.The petitioner himself appeared in the witness box to assert his right of pre-emption and also produced the two marginal witnesses of the Talb-e- Ishhad, however, as discussed in the earlier part ofthis judgment, that the petitioner had knowledge of the "sale" much earlier than 23.07.2013, when the two.sale mutations were attested, hence, it was a failed attempt on the part of petitioner to maintain that he got knowledge of the sale in congregation in Tehsil Headquarter and there he expressed his intention to pre- empt the suit property, hence, petitioner having previous knowledge of the sale in the year 2011, the alleged Talabs made in the year 2013 in Jalssa-e-aam are not in accordance with law, hence, he has failed to perform Talabs uls 13 of the Acl

12.So far as question of superior right of preemption of the petitioner is concemed, he is admittedty mortgagee in the suit Khasra numbers and a specific portion of it is in his possession. The right of

preemption can successfully be exercised firstly, by the co-owner in an undivided immovable property, secondly, participator in the special rights attached to the immovable property sold and thirdly, by an owner ofadjacent property. The petitioner being mortgagee in the suit Khasra numbers falls in the second category of class ofpreemptor being participator in special rights of passage, right of passage of water and right of irrigation etc, hence, the learned trial court was correct to hold that petitioner had a superior right of preemption in the suit property.

13.For all the above reasons, it is held that the judgments passed by the leamed trial court and maintained by the learned appellate court does not suffer from any illegality, irregularity or jurisdictional error, hence, the instant civil revision petition being bereft of any merit stands dismissed.

An nounced.

rlmranullah PSI

JUDGE

(S.B) Hon'ble M?. Jastlce Fawl Subhan

(t.r^L\!:lt

MA 3 1 JUL 202 3

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