Said Ghani VS Sher Rahman

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Civil Revisiow No ?, of tat-s I

Khan Rio Batar' Said Ahani S/o Zaib Ullah Petitioner Daggar, District Buner

VERSUS

Sher Rahvlnan 5/o Sirur'tt h Ultah Khaw R/o Batai' Gadezai' Tehsil Daggar, District Buwer Jehan Ara Raees Khan sons G) Mst' (2) Zarwali Khan (3) Sher Khan residents Khela wid"oru of Sardar (daugh'ter) (5) Mst' Khan Tehsil Etaggar District Bune ' ' " 'ResPondents of Bhatai ' Gadezai '

read with 7-7-5 C'P'r1' ol LqoS ' Revision Petition l)/S Regul'ttion 2'ooi ' para Lo (8) of tlae Nizatv'-o-'ordal dated 2oio6/2o1-s of and decreet against the judgvnent Zitlr Qrlzi Buvter at Daggar' wherebg District Judge / +-he beaving No' 7 5'/7-3 of 2DL4 while disv'tissing 'tlleal Sher r"ahyv.an etc'" ' upheld the titled" "laid Ghani Versus passed bg Civil amd decree dated o3/L2J2oL4' iudgvnent bg which he lllaqa Qoai ll Buner at Daggar' Judge / ol: ?-o73 titled d,isvnissed the suit bearing No zl+q/l' H$'il ?ti.h'tiQhlf-c,'iiI

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IUDGMENT SHEET i

IN THE PESHAWAR HIGH COURT,

MTNGORA BEI{CH (DAR-UL-QA7_A ), s (Judicial Department) r ....,- ..', tl . -j C.It. No. 246-]0f/2015 , -j\ \ ) !1 , JUDGMENT ) t 'r't*i) ) ":'

Dale ofhearine:- 2l-0 9.2017 :.'r'ii:

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Petilioner:- ( Soii Ghani) by Mn Abdul Halim Khan, Advocate,

Respondents: (Sht Rahman & others) by Mr. Mushlaq Ahmad Khon, A vocole

MO HAMMAD IEIRAHIM KHAN I Here is this Civil Revision with the prayer:- "lt is, therefore, humbly proyed thot with the occeptonce of the instont Revision Petition, both the impugned judgments ond decrees mentioned obove moy pleose be set aside ond the suit o.f the petitioner/plointill be declored as prayed for, Any other reliet which is just, oppropriote ond efficociou:; moy olso be oworded though not specificolly proyed Jor, but the interest ol the justice demonded so."

2 The Court of learned Civil Judge- f, ll/lllaqa Qazi Buner at Dagger by its ultimate findings tn the judgment and decree dated

ATTESTE

E xat t:le e:sl'a ,,.J ir I iilr.ill C'lur Bench u l.O ira S\dat.

ri li il Criir J NflwBb (S.8.) Hon'ble Mr. Juslicc MohtunNad lbrahinr Khsn

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bS.rZ.zOf+ dismissed the suit bearing No. (('b' 249/'.1 of the year 2013 titled as ,, Soid Gh ont vs Sher Rqhmon ei:c

3 Ne>:t off, the matter was taken up before the Court of learned District Judge/Zila Qazi gunsr at Dagger while maintaining findings in ther judgment and decree of the learned Civil Court, dismissed the appeal bearing No.7li/13 of the year ZOl4 on 4 By introducing the suit for

obtairiing possession through exercising the right of pre-emption, it was with regard to sale in Khotto Khotooni No.268/319 bearing Khasra No.792 land m-,asuring 28 kanals 6 marlas, out of whicfr 2 kanals were settled for this sale according to the Ford-Jomobondi for the year 2O1,O/2O1,L situated within territorial g' ,J- jurisdiction of Mauza Batai Gadezai District Buner. This piece of land was purchased by

AT TESTE

Sher Rahman 'or an amount of Rs. 600,000/- Exrtrrt lle ts,1r, ch ,r tir(il1 CoL SY/3t Feshall :,, !l lri\t'ctoti'''" Nnrvab (S 0.) Hon'bte Mr. Jrsurc Mohannnad tbrahir:r Ktran

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through oral sale acknowledged in the statement of Shah Wali Khan son of Sher Rehnran, Respondent No. L under an affidavit.

Suffice it to say, that the parties had entered mutation No. 20L8 but due to lack of interest the same was rejected. The statement of pW-1 Syed Ali Shah Office Qanungo and in the remarks column of lhe jqmobandi for the year 20L0/2O]-l and the contents of mutation are evident to, however, possession of the suit land was transferrr-'d. The Plaintiff herein the Petitioner considering himself able to pre-empt this sale transaction holding the right to be I Shofi Shoreek, Shafi Kholeet ond Shofi Jar in order to fulfill the conditions as laid down in Section 1-3 of the Khyber Pakhtunkhwa Pre- emption Act, 1987 made the demands of pre- emption in its order:- ,tJ-

l. Tolb-i-Muwathibot ri

ll.' Tolb-i-tsh'had lll. Tolb-i-Khusumot

ATTEST

Ilxatrr i ner Pesh;viar ll i.rlr Col Bci'cll Mirr g ol;llLl r.rrIi;rzr S11:l Nawab (S.B-) tlon'ble Mr Jusricc Mohammad lbrahin Khan

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5 This suit tivas hotly contested by the Defendants 1,2&4 (hereinafter called the Respondents) raising various legal and factual objections. The learhed Civil Court on the basis ot av,erments taked in the pleadings of the partir-,s framed the fillowing issues:- o* oppr ?ty bU t,,z_U/1J t l :r OePt 7rO ij.V, :t,=,. rt o: t :. cFt t5 l rt! rZ OPPI c:Y",11$S t, 'g' oPDr 7Ut i Jr; t d o,{f ? f * a tg,tJ t,r! :+ oror 7e,lJ u f g g,r1,s c,,

orvrT-cf b€g jv.tv,-rut/tt u{,e {-L,lt ct}v J.W.:ttt otb L6 ,{ ,l gppt uA

f U 9,, l'u at jr!,P At,t Lf v,r/,t oppr76+i OPPI a- 1 ;> (. *,s5,L $ r{ :S -$tt:

It is very much significant to mention here that the plaint was amended for I ,a want of impleadment of Zar Wali Khan, Sher Raees Khan, lvlst Jehan Ara and Mst. Khan Khaila, among:;t whom Mst. Jehan Ara had sold ATTE STE out this piece of land measuring 2 kanals in i1e EYatr.' 0 ci ctr

Fesh (firlqc Nawab (S.8.) Hon'ble Mr. Juslice Moharnmsd lbrahirn Khan

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favour of Sher Rahman, the Respondent No. L herein

6 According to the list of witnesses bein5g furnished, the parties examined their resperctive witr:esses. On behalf of the plaintiff (herein the Petitioner), Said Ali Shah O.e.

Dagger appeared as pW-j., Fawad Ali Shah Halqa Patwari ;rs PW-2, Fazal Rahimlpostman as PW-:i, the Plaintiff/Petitioner Said Ghani as pW_ 4 anrJ in his support the witnesses of noticd.df Tolb-i-lsh'hod PW-5 Abdul Baqi Khan and pW-6 Sher Muhamnrad Khan were also examined.

After closure cf the evicience on behalf of the Plaintiff (hereirr the Petitioner) the witnesses of the other part were also given chance to prove their stance as alleged in the written statement, thrtrefore, Fawad Ali Shah Halqa Patwari appeared as DW-1, Shah M/ali Khan as 6' DW-2 and Zar Wali Khan as DW-3.

7 By the judgment contained in suit f.r.rF_srFgl No. 2491L of :he year 2013 the decision was ',",:sfi}:l{iltul Nflwab (S.8.) Hor'ble Mr. JrEtice Mohnllnnad tbrahirr Khan

\w followed under the findings on 03.12.2014 whereby for all the reasons mentioned therein particularly under issue No. 7 which reads as OPP|6 L c, t, t ytiti rJ.b< :u. o r)hL g" t/,the Plaintiff (herein the petitioner) was non-suited as altogether no fault was pointed out with regard to making of Tolb-i-muwothibot and the suit treing.held within tirne presented not over the' span of 120 days, but because of the following findings the plaintiff (herein the Petitioner) was not held entitled for the decree of pre-emption as prayed for:-

*p*. p'w-+lt ,;t *u J; ,lt 15 * if L6 tqlgttt 7,Jl(L,1,! 7 !b, S/,>t*,2= t'VtJb j j&i,zl&,-,l f' -+{ ,hax. PW-3 ,P.tr36 ,,trosl oq, 1f r,'t 7{& f e1 (,>t a, o,/), L -d Ltl.,i'B*. PW i I 2 ,,ox. Pw -l I t, H /zs.ot .zort ; ,r { :tft )b J i 2 ,ft -- I ! *(.,4/ .ze rt t 6, d *v, { r,c,/,/ 7 {' .:nJr;h/ *v),Vt.) ji -/;tjr i : L $ t, :,7t|fi !-,> i tVt q! t L $ t a D t t

:,,t 7r/ ft z-t ql L,Vt,<b j ;, L, ATTESTE ',fi1 6 .t -( 7t bl: tr) q -.-t! tft Jti,l I O Exal11 er i c1.ri' Bench P nqhlvrl,''1i!ih I Clrz -t S\Y at. lllll(ior'l 1) Nnw6b (S.8.) Hon'ble Mr. Justice Mohnmmad tbrahim Khtur

l (\ t { cti'g ,ti'fr l't3 -,ttt) -LtA t d;t; --2 L -f{vEov'Qt v cl it; tz -t t,.:.; { 6',,t € l, 4o, t) ;s a2 tJ

j J l r-,9', 6 -:t, -bv, -*,t;r =y i .zE <-i,(t t.ut crsV vt! )d Z; -.-6, -7t; rt|,/ [ 7 *,!'V' r* J i bv, ci,t *: L 6.0 ! 7v x * d ;sitt;, t: g l,,r 7{ I vy eE ; 4u u ct t

oi 7 at{ & G,,,!,ty cs. -* 5 O u,r,U, *OV t! *:,,':,!'tit Jt 1ft ur

Whpreas there is no such findings under anv issue nocuous for restraining the Plaintiff (herein the petitioner) to obtain a decree for pre-emption with regard'to the land measuring 1 kanal out of the 2 kanals which has also been ardmitted under issue No.6 (oPt'tc.- ,fvdt A ds2b.ti$t{,Jt 54 in the following manner:- t

Jtgsti,:)tv ,rlfr/ a ):4;.u,v'ct;E .-2 Ynf V{.Prft,t,V( r,tur€^1; € t ' d,t-p€ 3 d 6, t-Lx :,-t;.t)L o"/)z.,tr c- Ex. .jb 6t*il/th i.,8, t- -E 4 --& -c-L- n g- d- ,6 'P (ut ! 7ex (t .-tw-zlr & gn

uP d rrt et j, I / *V -u rrr 6,t 4 -.--lt J It 7rF,f vt O is{6 u.,,tactgtq;:6d ATTESTE o, rt { vt i,, { tt1,*. g,t.o ( t tl 6,> i.

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Exr rii' Co il Bcnch Peshatr:r-lli J, SYJat.

a -,,1'0 N'lrttc1ct'attl

Nawab (S B.) Llor'ble Mr. l(stice Mohammad tbrahirn Khan

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I While going through the findings in \\ the judgment oF the learned appellate Court in Civil r\ppeal No. 75113 decided on 20.06.2015 the findings in lhe judgment and decree of the learnhd trial Court were mainthined to the effect that no ntisreading or non-reading found therein, thus the appeal was dismissed accordingly.

9 Valuable arguments of learned

coun:;el for t re parties were heard with vehernence anrl available record dplved deep into rvith their able assistance.

10.The legal controversy to declare the Plaintiff (here'nafter called the Petitioner) entitled for the: grant of decree for possession throtrgh pre-enrption with regard to 1 kanal of land as obviously the parties are co-owners and os pr31 wisdonr contained in 7993 SCMR 543 I a- "Kolo Khan v.; Ayub Khan" the parties are I entitled to the extent of 50% shares, thus, tn ATTES view of the findings of learned Civil Court duly PeShal'.,r E xJtrr ffi i r i'lirrl' C oLrri Benc ly',irtriot;tiiilit'tt l-(ii::J SY/3t Nawab (S.B.) Hon'b,e Mr. JLrstice Mohannnad lbrahim Khan

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maintained by the learned appellate Court, the Plaintiff (herein the Petitioner) would be 0t entitled to 1 kanal out of the sale being effected subjer:t to the pre-emption prayer.

Here in order to resolve ' the findings AS referred to above under issqe No. 7 OPP saL LtJ { cl}s cluz:ty.:.tb Lg t"r! there it refers to the sending of notice of Talb-e-ish'had r.rnder section 13 of the ibid pre- emption Act (demand of pre-emption) sub- section 3 which reads as under:-

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3.[Subject to his ability to do so, where) o pre-empbt mode Tdlb-i- Muwatt.ibot under, subsection (2), he sholl os soon thereafter as possible but not loter thon two weeks from tfie dote oJ nottce under section (32), or knowledge, whichever moy be eorlier, moke Tdb-i-tshad b 5 n o notice in writino ottetted bv two truthful witnessr5 under registered cover r a- ( ocknow,'edgement due to the vendee, confirming his intention tq exercise the right of ore-emption.

11.On behalf of learned counsel for

A?TEST

the Plaintiff (hereinafter called the Petitioner) E x.r rr ne Peshavrrr Hirlh Cou Bench ,^l irtf,c ra, D,r - l!l-Qiz S',!a I Narvab (S.8.) Hon'ble Mr. Juslic€ Mc,hannnhd lbrah r Khan t

l0 utu the following wisdom contained in the judgnrents of Hon'ble superior Courts have been referred to, cited as 2O0g MLD i07 uhom od 5horif vs Muha mmad Yousaf", 2(n6 SCMR 4"Pervdiz ond onother ys Muho mod Nttwob" PLD 2 003 Pesh qwor 779 "Yor Muha msd Khan vs Bqshir Ahmed". PLD 2 Peshq wqr 27 ,, HOii Din Muho mmad

th lt hLRsv Mst Ho B ton others PLD 2010 Peshdwa r80 Haii Aurono zeb Khan ys Hobib Khqn 2008 SCMR 7444

Homee dullqh lhan vs Mst. Ze enat Khatoon" qnd 2006 clc 777s ILohord " Wo li Khon vs

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Noor Ahmud qnd another" and

prayed for the acceptance of this petition.

While on the other hand, learned counsel for the Defendants (hereinafter called the Respondents) relied up on PU 2077 Peshowar

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J- 777 " Ubaidullo h tqn vs Mumtaz Kh on qnd 3 others, 2075 SCMR 377 " Khan A fsor vs Afsor Kho n ond others' 2074 YLR 277/5 showa ) lf!'t-r-

Li.lrriirt!'

" Noor Muh eet vs Attaulloh qnd o thers", PLD Nrwab (S.B.i Hon,ble Mr. ,uslrc. MohaDnnad lbrahill KhEn

2071 Peshowtr 776 Amir Muhamm ud thioush LRs vs Muhamma d Ashrof" qnd 2077 CLC tt99 lPesho wor) " Samond ar Kha n vs Khon Agfuld and thereby prayed for utter dismissal of the present revision petition.

t2. Where the language of section 13 sub-:;ection 3 ef the ibid Khyber pakhtunkhwa Pre-ermption Art 1987 is quite clear and it has to be follcrwed for demand making Talb-i-lsh'hod by sending a notice in writing attested by two truthful witnesses, under registered cov,:r acknowledgment due to the vendee, confirrning his intention to exercise the right of pre-enrption. This needful has utterly been done, but because of non-examining of the , postman who served these registered notit:es upon the Defendant (hereinafter called ,/-rn" Respondert No. 1) Sher Rahman and in view of the referred judgments by the learned couusel for the Defendants (hereinafter called 4r}esr: the Responderts) it was incu,mbent upon the rte ';;n';iirl)Cnirr 0Eitcri N wab (S.B. r Ho['ble Mr. Jusrice MohnmNad lbrahim Kharl

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Plaintiff (herein the Petitioner) to produce u& postrnan to pr(rve service/delivery of notices of Talb-i-lsh'hod tn compliance with set requirement of law. lt would have been very much necessary, had the Defendant (hereinafter called the Responflent No. 1) by the rrame of Sher Rahman to have appeared in the rvitness-box and denied ,the service of the said notice upon him. Attorney on his behalf DW-2 Shah Wali Khan has only' said about in his exantination-in-chief as under:-

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He has never repudiated to have

not received registered A.D. which contained the , notice o1 Talb-i-lsh'hod served through Pakistan Post 3ffice Ex. pW-3/1 to Ex. pW-3/2 u) r^ in either his written statement qr under an affidavit furnished under the Sharia Regulation 2009. ln such scenario, where such facts exist

ATTFST

Exat on record there is absolutely no need of c:::t; h i Pesh au JI Hi( rlr Ci :r'.'.'3i.

I\irt: g c r.r i-.rt

N veb (S.8.) Ho'r'bte Mr JrBrice Mohanrnrad tbrahjm Khan

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examination of the postman who has delivered registered A.D to Sher Rahman, the Defendant (hereinafter called the Respondent No. 1). ln such,background, PW-3 Fazal Rahim postman of the sender post office who has been examined alone is sufficient and not the postman of the receiving post office would be required to have been examined as a token of service upon the vendee/ Defendant (hereinafter called the Respondent No. 1). lt is by itself a proof of the delivery of notice of t

Tolb-i-lsh'hqd even without return of the A.D card from the concerned post office to have been duly received by the Defendant (hereinafter called the Respondent No. 1), much more to say that PW-3 Fazal Rahim has not even been cross-examined (:-)ls t:( !: 6s-r) v-^ d_ therbby admitting the delivery of the registered Talb-i-lsh'hod notice. lt shall be made perfectly clear and stiaighten out that the wisdom contained in the judgment of the Hon'ble I\rrFsT9ry F,, j,l/1',:.,,Ju,,.n Supreme Court of Pal<istan 2075 SCMR 377 i_(ri i' ""', S,Xat.

PL.Sll,rfr ,.,".

l'4irl.r. l; l" Nawab (S.8.) Hon'ble Mr. JusticE Mohamnl0d Ibrahrm Khan

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"Khqn A fs or vs Afsqr Khan ond others" as t referred in tl'.e arguments of the learned counsel for ther Respondents under its Para 6 because of a specific denial of the receipt of notice of Tolb-i'tsh'had on account of such plea as defence it r,vas received by another person rather than the vendee himself, thus for the dire need of the fulfillment of such requirement urrder section 13 (3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 had not fulfilled the mrndatory condition' Here in this case absolutely the facts are altogether on different touchstone with all veneration wherein this ground of not receiving Tolb-i-lsh'hod ttotice has never been denied' a

13.Wlrereas to settle market value for 1 kanal piece of land which obviously the share {tgf t"ttiue in favour of the Plaintiff (hereinafter r' called the Petrtioner) the total land measuring of 2 kanals has been purchased for an amount ATTFS"'E offer Rs.600,000/-. At the time of arguments an Exat rler i ''r' Cou Sench PolJr r Yr Swat.

rri'C: z d, t,, ti \.,1'irri"rl NawEb (S.B ) llon'ble Mt ,ustrc€ Moh nrnad lbrahinl Kharr

was rnade that if the market value is to be fixed for land measurlng 1 kanal the Plaintiff (hereinafter called the Petitioner) may make paynrent of Rs. 600,000/-, but this offer was discordrant and the attorney on behalf of the Defehdant No. 1 (hereinafter called the Respondent No. 1) spurned to receive, the conslderation of offer under the market valutr, so, the sale price of 1 kanal persistently is settled Rs.300,000/- as entered under the sale Lnquestiohed.

L4. ln such terms, this Revision Petition startds accepted and findings contained in lhe judgments and decrees of the learned Cr:urts below are set aside, ergo, suit of the Flaintiff (hereinafter called the lt)- Petitioner) is rlecreed to the extent of 1 kanal f out of 2 kanrls under the suit land as per sur\,'ey number mentioned in the head-note t of the plaint :or an amount of Rs. 3,00,000/-

TTTTESTE

Exatll i]orr 11e t Scnch r [\i, I'r Pcsh:r\^r 1 i 5ri3l, Ilir:gct; i);ir rri (l;t;

Narvab (S.B ) Hon'blc Mr. Juslicc Mohlnlmfld lbrahlm KtrRn

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fixed as its market value with no order as to costs.

Anno unced ,r)' Dt:21.09.2017 JUDGE

Certifie,:i t ile t:'i:e coPY

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I ' t.i.:rr-')-.:i.J,jJat l,:1.;i,.'- 1i iiji- -i 't,:.:.. .. 1 D/f //F"" ffi-'n t

Nawab (S.B ) Hon'ble Mr. J stice Mohaflmad lbrahim Khfln i