Sardar Muhammad Khan Vs Rais Khan Afridi

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JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(ludicial DePartmenf

Civil Revision No.370'P of 2017' "sardar Muhammad Khan VS Rais Khan Afridt"

JUDGMENT

Date of hearing: 12.12.2022' Date of Announcement: 23.12.2022.

Petitioner by: Mr. Zia Ur Rehman, Advocate

Respondent by: IWS Javed Iqbal Gulbela and Haroon Khan, advocates.

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MOIIAMMAD IBRAHIM KHAN, J.- The plaint presented by Sardar Muhammad Khan in collision with Rais Khan Afridi, anxious for obtaining possession enforcing his right of preemption with regard to the land measuring six marlas and six sirsayee out of fourteen marlas as per khasra/ kata No. given in the said plaint on fulfillment of the required criteria of making talbs, the land is said I ,/, to have been purchased through mutation No' 17683 attested on 13 (14).11.2012' It was further amended through presentation of an amended plaint after obtaining permission from

the Civil Court, the said Rais Khan submitted his amended written statement contesting therein the claim of Sardar Muhammad Khan on various legal and factual objections. Thereafter, from the divergent pleadings of the parties, the learned Court of Civil Judge-IX, Kohat was pleased to draw the following issues: -

t. Whether plaintiff has got any cause of issues? OPP

u. Whether platntiff has performed talbs according to law? OPP

ut. What is market value? OP Parties

iv. Whether plaintiff has got superior rights of preemption? OPP

v Whether plaintiff has waved off hit rights of preemption? OPD

vt. Whether plaintiff is entitled to the decree as PraYed for? OPP

vii. Relie/?

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Evidence of the parties was recorded and it is by the judgment contained in Suit No. 46ll delivered on 16.03.2016, the suit was decreed as prayed for and the said Sardar Muhammad Khan was directed

to deposit 213'd of the preemption amount within one month.

2 The findings in the judgment of the Civil Court were then assailed in Civil Appeal No' llll3 of 2016 and after hearing learned counsel for the parties, on 27.03.2017, the talb-e- Muwathibat, vnder the provision of Section l3(2) of Preemption Act, 1987, since the preemptor failed to discharge the same in accordance with the case law reported in PLD 2015 SC 69 which says

" S. t 3 (2)---Talb---Tolb-e- Mu,ttathibat- --burden of proof--person conveying information of sale and Price not produced as witness-- Effect-'-Initial burden of proof with regard to

conveying of the information of sale l price loy upon the Pre'emPtor, who failed to discharge the same-"Person who had conveyed information of sale and price to brother of Pre-emPtor, who in turn passed it onto the Pre- emptor, who was not Produced as a

witness---elements of Talb-e'

Mu,vathibat were thus not proved-'- Appeal was allowed accordingly and suit for pre-emption was dismissed " therefore, the requirement of talb-e-Muwathibat was unfounded and hence, on acceptance of the appeal the impugned judgment and decree passed by the learned Civil Court was set aside resultantly, the suit was dismissed.

3 On filing of this Civil Revision, on 13.lO.2Ol7, Hon'ble the then Chief Justice of this Court has passed the following order:- "Since the findings of the

two Courts below are at variance, which fact calls for Yet another consideration and requires re-

appraisal of evidence. Admit. Nottce to

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I 4 the other side for a date to be fixed by the ffice.

CM No. 594-P of 2017.

Notice to the other side for

a short date in ffice. In the meanwhile, status quo be maintained"

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4.This Civil Revision came uP for arguments which were accordingly heard with vehemence. Later, some clarifications were required which were also addressed by the learned counsel for the parties and hence, same is ripe for delivering the judgment of this Court.

5 Before this Court there is no

controversy with regard to holding of superior right of Sardar Muhammad Khan, plaintiffl petitioner. The only argument addressed on top priority was to delve deep into the evidence as to whether the talb-e-Muwathibat has in fact been made out in accordance with its requirement? The judgment of the learned appellate Court, while setting aside the judgment of the learned civil Court, was mainly based that since talb'e-

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Muuathibat was not made in accordance with the criteria laid down hence, while the same is defective then there would be no need to further find any need to examine the evidence of making of second talb i.e. talb-e-Ishhad even if at all, any

exercise of the right of preemption talb'e- Khusumat is made within stipulated period of 120 days. It is to be appreciated that where making of talb-e-Mtnvathibat, if it is not made in accordance with the preemption law, the entire superstructure would be crumbled. Section 13 for the demand of preemption right needs to be reproduced herein below for ready reference: -

"13. Demand of Pre-emPtion- (1)

The right of preemption of a Person shall be extinguished unless such person makes demands of preemption in the following order, namely: -

a. Talb-e-Mm,vathibat

b. Talb-eJshhad

c. Talb-e-Khusumat

Explanation--(i) "Talb-e-

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Muwathibat" means immediate

demand by a PreemPtor in the

sitting or meeting (Mailis) in which he has come to l*tow of the sale

declaring his intention to exercise the right of preemPtion'

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Note- Any words indicative of

tntention to exercise the right of

pr e empt ion ar e s uffic ie nt.

Explanation-(ii) "Talb-e-Ishhad"

means demand bY establishing

evidence.

Explanation-(iii) "Talb-e- Khusumat" means demand bY filing

a suit"

In the case in hand, the plaintiff/ petitioner Sardar Muhammad Khan has examined PW-7 namely Javed S/o Sher Afzal who is running his shop at Jhandi Station on 05.03.2013 while he was present in his shop, two persons came to his shop who were talking about the sale in favour of Rais Khan Afridi (DefendanV respondent) in a land situated being preempted in which, Sardar Muhammad ,/ Khan, plaintiff/ petitioner is co-owner. He, on the same day, while back to his house in evening time at 05 pm, saw Sardar Muhammad Khan sitting in his baithak; went inside and gave him information about the sale of the land he being a co-owner. On

v learning that in fact the sale has taken place, the said Sardar Muhammad Khan announced his right of preemption; thereafter, the other talbs i.e. talb- e-Ishhad was reduced into notice form duly admiued by his own son Ehsan Sardar and Nadir Jan, a co-villager. Later, talb-e-Khusumat was made in accordance with law by filing a suit within 120 days

6 It is an admitted fact that the information regarding the sale was communicated while two persons came to the business place of the said witness Javed Khan informer; however, their names have not been disclosed neither by the said Javed Khan nor any question in this regard was put to him that who actually were those persons. According to the case law reported in ,/ PLD 2015 SC 69 the preemption suit was mainly dismissed on the ground that persons who had conveyed information regarding sale and price to the brother of the said preemptor was not produced as a witness, hence, the elements of talb-

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e-Muwathibat were not proved. yet, there is another latest dictum of the august Apex Court reported in 2022 SCMR 1231 wherein the aspect that it is 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 further communicated to the preemptor, must be examined.

7 This is the dire need as to maintain 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 lastly informed the preemptor must be complete. It is utmost necessary that only complete chain of tt/ source of information of the sale can account for essential elements of talb-e-Muwathibat which are the time, date and place when the preemptor obtain the first information of the sale and the immediate declaration of his intention by the

preemptor to exercise his right of preemption there and then on obtaining such information. The making of talb-e-Mtmathibat shall not be based on hearsay evidence of a witness as there would be skepticism that such information has been given in order to only fulfill the requirement of talb-e- Mmtathtbat ruther the veracity and truthfulness of the witness of talb-e-Mnyathibat shall be of prime consideration.

8 This is as coming out that the

evidence of the preemptor that though the information regarding the sale in favour of Rais Khan Afridi has been given by PW-7 Javed Khan but the chain qua such information has been broken as to how the information has been given to him by those persons who came to his business t, place and were talking about the sale. The same is hearsay evidence which cannot be believed as no time and date has been given about the receipt of information qua sale. In a scenario where talb-e- Mu,vathibat has not been made in accordance with

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its elements and if the other talbs i.e. talb-e-Ishhad and talb-e-Khusumat are made in accordance with law will be of no useful purpose. As such, the plaintiff/ petitioner cannot be granted decree for preemption.

9 With a slight improvement under

the observations of this Court in view of latest dictum of august Apex Court (Supra) the judgment of the learned appellate Court is absolutely based on correct appreciation of law under the description of the elements of talb-e- Muwathibat while the learned trial Court has not carried out any observation in this behalf.

t0 For what has been discussed

above, this petition is not worth of any credence, which is dismissed accordingly.

Announced.

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December 23,2022. JUDGE Zia/*

(5.8.) Hon'ble Mr. Justice Mohammad lbrahim Khan, J