Sher Afzal Vs Sher Bahadar etc

./IIdJ.'fllCIil S/i ee/

IN TILE PESIIAWAI( LIICFI COURT,

1ESHAWAR

(./udiciul l)epurinieiit)

CI? No. 53 7-P/201 4.

.J(JDGMENT

S'lier .'ifal etc Vs SI: er Ba/i ada, etc

Da(e iii licai'in .30. 10.20 IS

Petitioner by M, 4S- 4c3-.

Respuiidcnt by

I141JIL1iW744/) }"OLJNIS '1114 HEE4!, .1. Through this single jttitginerit. thisCourt qIIAI dispfte Of two revision petiliotis. 05 C011ililoli Iluestioll ol law aiid tict:; ate iiivolvttl ii ere in. panics are same and both Ibe pet it ions has arisen mit oJ' it single Judgment and decree I)a.Scd in CiiI AppeaL No.56/13 daflerl 19.05.201.1 by Adclit ional l)istiici iudt.e-1 1, 'fakht I thai, particulars C hot Ii pet Ii uns arc as tinder:

"0 CR.M..537-p,2OJ4 lit/ed Slier 'lj'zul & others 1'v Slier Bahmitir

ii)CR No. 730-P/2014 lit/ct! Slier Bah,adai- Vs JJ'air Slut!, Ot/ICPS"

ATT:r.

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2.l3ricf Iicts nt the case are i1ti1 respondent Shier Ruhadair itistihited a suit fur possession Lhrouh pre-efliptioll by WaY of* decree upon sale uwlatton No. 97$ a ttested on 31.03.2011 about landed plollelty described in the plaint on the basis oh having superior rihits of t)I'c-CmPtifl than vendee/delndant (the preselit petitioner) being co-sharcr and other superior rights by uller,ing that he had hitLIihled all the requisite JsJaL's' i c- i((IJ-C-A'1OiVUlIiCbCiI and TalJ.'-e-Jslu,d hilly detailed in ihe plaint.

:3 i) kd 1/VeiRke Was SUIfluiUJflCtI. who cut itested tile suit li) hitiLtt! his Written stateincril. raising various tIis particularly noti- Ru Ii I tnient oh requisite dcii lan(ls uccol-ding to Section 13 ot KPK Pre-cuiplion Act on the part of j)iC-eIuiptuI.

Upon the (hivergLJ it pleadings i I the parties. the heart ted trial ('null framed the Rttlowimig issues:-

I. Whether the jilui,zlijjhzox gut it ((IIISC of aetio,i?

WIt c/he: suit of the jhunlifj is c0I1J/?C(('ilt in its piesciiiflnin?

tV/ic/he, sail of the ptaintiJji.c within tune? tJ"hether the plaintz/j IS esIo/)J)ei( to Sit:' (11W 10 his on'ii cfflhLh.tC1?

J'Iut1se, stilt oftite plaint if is liable to be dismissed iltie to juzrliulilj'?

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fl'/iciju'r the j)/aiflhijj has 1V1111L'l/ his right iiJ j)re- eu?/Uolz:'

1J'hetht'r the plaintifi has superior rig/il of pie- eiisfiIu,n oI't'r .Sliit pioperty?

JJ'heth er the plain/s/f juts nzudc' lu/abs accordi, ij,' to JVliai is the market i'ul:ie iii (lie coil J)ropt'r(v?

/0. lJ'hei/u'r the dclciultimif hits usia/c imnproveinemn'v on the xliii proj;ertp, [xo, to i'/u:1 c.vk'nt and effi'ci?

ii. Whet/icr the p/ainhijj is entitled Jbr the decree as prayed for?

12.It'e/ief

4.Ftoih parties lcd their respective evidence to prove their respective pleas by producing pio and contra evidence and atier COtIclUsn)i) Ut truil tt (Cr hearit ig areutnents the learned trial Court dismissed the e-eniption suit 'iilcjudgment and decree dated Q,.O7.2Q 13 Remaining dissatis lied from the juckmc'iit aridi decree ol the learned trial Cowi the present iespoctlum in the ilist.tiit peliUoii and pctilinner in the connected CR No. 730- P/201 4 ShILT Rahadar tiled zegular Ci\'I I appeals before the (.'ourt n I learned Addit i nial District .1 ude. lakht Rh iai wh id i ttter Ii eating "as pail ia hly al loweiL vide jude,i nent and dcc ice dated 11)05 .2(11 4 iiiipiigncd liereiti v ide wI iich I earned appellate dcercl half share o I Uic sit ii I at itt in Ihvou r of Sher flat tadar pre-cmptoi. j: itig ugprieved horn the ju tlgmeiti and

(lecree of the learned appellate Court l,eluw both parties assailed Lite same judgment and decree of the learned appellate Court below by filing their respective civil reviiori petitions inlet iii Ia ott their respective grounds.

S. The learned counsel for petitioner/vendcc advanced his arguments as below:-

the judgment and decree of learned appellate Court below by decreeing hall of suit laud to pre-emptor is agailist law, evidence on record and with disregard to law laid down by this august Court and I tonourable Suipreme (ouit of l'aldsian with regard to ia/abc

the iudgrncnt and decree of tue learned trial Court is well reasotued, based on proper appreciation of evidence and law;

learned appellate Court was having no justification to set aside the judgirient and decree of the learned trial Court by decreeing half of suit land in !tvour of rcspondeui and by doing so has travelled beyond its jurisdiction.

and lastly submitted that the pre-ernptor has ihiled to prove through cogent, believable evidence both the foetuin of

ATTESTED

E 1i Peshawar u-<Ceurt.

J:/b- '-ti4n'jthebui' and lshad' as has remained Iltiled to proVe Tall'-'-1sIzcseI by producing the postnlan.

(iv)pre-emplor and his witness as arc not truthful one.

6.Conversely Ike learned counsel lbr rcpondcnt in the iflStflRt petition att&1 f)Ctitl()flCF in connected CR No. 730-11/2() 14 argued in the lbllowing way:

(I)that the .indgmnent and decree passed by the learned trial (.ourt is against law and evidence to the extent of not decreeing other hail of the suit land as the pre-cmnpior had proved all the Ie(iLIISite TU1(11Is

(iii)the lcarne(l appellate Court below oiler reappraisal of evidence and appreciation of law on the subject ilmouh had allowed the appe.il of pre-empior but it has beemi partially allowed, so had challenged it as (ifl time same evi(lence the half suit land wa_s decreed and time oilier half part \vas not (lecreed by declaring vendec as co-sharer which is against record.

(iii)as pre-emptor has superior rights ilmo vendees, iherefiwe, is entitle iw decree of other remaining hallas well.

(iv)lastly responding to the arguments advanced by learned counsel lbr veiìdee/peiitioner that when the postal envelopes containing notices of Tub/-c-/shad' were returned unserved bearing postmaii's note then it is deemed that those were delivered as proved through documentary evidenec. So it is not fiutal for pre-emptor that Ali Rehivari who delivered it had not been produced. In this respect plausible explaination has been forwarded that he was not available and has gone to Karachi, therefore, his brother Waj id Ali was produced as witness who testi lied the entries and siunal tires I)I his brother on cacti original postal envelopes and Al) Cards marked as lXPW4/ 1 to lXP\V4/4, therefore, legally the P05U1l envelopes containing original notices ol 'Ta/b-e-Jshcid' had been validly delivered on addressecs/ven(lecs.

Valuable arguments of both the learned counsel heard, considered and record Perused.

First question tor determination before (his Court is whether the respondent Slier Dahadar is co-sharer in the Khata and vendccs are strangers. Paiwari l-lalqa appeared as PW2 who produced registered I Iaqdaran-c-Zaineen Mouza P3shawr ti, (aurf,

Ahniil tbad peintinin. to Khata No.230 placed on recor(l Us 1XPW2/ I . According to LXPVV2!1 1)11th veii(]eeS and pre- emptor are entered as owners in the coluiiiri ol' owiars. Fhis lict 01 co-siiaierltip of veru.lees has been adiTliUed by the Patwari during cross-examination as below:

'Ft is correct that ilefc.'ndants we co-sliwers in the suit Khzato/suil iì,nd. So according to the evidence on record it is proved that ye (lees are also co-sharers in the suit Khaltc prior to J) nise of' Slut hind. So the argument advanced by the learned counsel for pre-cinpior iii this respeCt h;ts no force.

9.Ihe other question iw detencunation helore this Court is as to whether the pre-einptor has flullilled all requisite dci iiaiids at id I cud success liii ly proved it Relevant provisions about demands as envisaged u/s 13 n! KPK Pre-emption Act I 'S7 are as tinder:

DEMANI) OF PRE-EMPTION:

13.(1) The right of pre-emption of jr.soru shall be extinguished unless such person makes dcmand of pre-eniption ill the following '... orderS, cIac)cely:---

(a)talb-i-muwathihat;

(h)talb-i-ishad: and

(c)(alb-c-khusun)at.

(2)When the lict of sale comes within the knowledge ui a pre-emptor through any source, he shall make tal h-i-ui c uw;ath i bat.

'TTL -L)

(3)\Wlieie a pre-em)( i ir h as Iii ude tafb-e- inuvathibat under suh-scc.L;on (2), he shall as SOOt) therealter as possible but Hot later than two weeks Ion the date of knowledge make talb-i- isliad by sending a notice in writing attested by Iwo trutliiiil witnesses, under registered cover aektiowledgcnient due, to the veiidee, confirming his intention to exercise the right of pt•c-eI iplion

It hits been now settled law that kr a successful pre-eniptor it is niandatory not only to first make all t'equ isite demands bitt shall be proved meticulously by the pre-eniptor through pro(Iucing Irtithilti Witi)C5cS.

From the perusal of' plaint it reveals that

plain Ii fI/pic-empr has averred in Pant No.3 of his pta un ii at he was in formed tl trough his sc in Mu hamn ad lit iran Khan PW8) itt 6:30 PM on 14.07.2011 at his I I ti. jrj in presence of Micicaninititi 1"a11eetii (l'W7) amid Muhicittictad Shaui (PW6) and on il mis in lac mu lion Ii e in tI te sum ne mc meet ii tg matte c laci Sb ii ifit on sale mutation Nu.978 attested on 1.5.07.2011 (tXl'W 1/I) mid Sent notices 'TuIb-e-/s/ui/ through registered post alongwiili Al) Cards.

It is kirticer perused tI tat tfefcnducmmts in their written statement Ii ad negated all allegations imiade in the plaint

parlicu larly I md raised l)IeJ that alleged 'Thiabs are hmke and pre-emptor had not sent notices o I iaIb-e•/slmad to timemim.

13.The pre-emptor in Pant No.1 of his plaint taken it specific plea with regard to the price as Rs. 3,00000/- (three lacs) but not more than it SO lie was under legal oH igation to

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prove this alleged ftmet about price by producing evidence. The perusal of his statement reveals that lie has reiterated his stance about price but had not disclosed any source From where lie got intrmation about price but during eross-cxaminatiun lie deposed that his suit linran K_han has not inlormed him about time sale price. I Ic has not produced any evidence to piove the alleged sale price. In this respect deep analysis had been laid Clown by time 1-lonotirabk Apex Court about truthfulness 01 a witness iii case titled as "SuhIwn-ud-j)j Vs Pjr Gl,ulwn" cited as (I'LD 20/5 SC I9). The relcvant part is below for relerence:

7/ic respondent lint! specially

cwiiendcd (in his eXwninotion in

chief) that the said land lusd he',z

purchased for o"Ii' in'i;Ij' i/iou cam!

2\EO ru/'ees, Inst ,i'ith out disclosing i/se .ç 1 in pest.maii

source of site/i itifor,naijon. It/f the reason Jar lilenhiowug (1 /Ol$'Ct J)1?CC i'a.s Ia oh/a/tied or advan rage the Sante IPU.5 not periniss tb/c as it st'onld colt/iaVCflt'S 1/i ir provisions of S/tori' (i/i wis wit have been nuale specially (if)piiC(ihle to /)Fe-t'l?ip(iofl cases.

Sect/air 33 of (he Act stipida ft's as antler:-

"33. Matter wicillary or a/ditto the provisions of!hi. ,Ict:-

Mailer (u,cillarv or u/cl,, to the provisions of/his .4s:l wit/c/i have not been specially covered titider any ,,rov!sion.v Iii crc of sisall be decideil according to Shari 'uh.

I I. Sitari a/z requirev /wnesIy and frnll:fulness in alice dealing aiu(falis stateiiie,st tiunle to obt alit and advantage Is an tin(if/ietna to Alrnighit' 4/1a/i:.......... pj

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Similar circunistances are in the instant case though pre-emptor has alleged Rs. 3,00,000/- (three lacs) as site price in the plaint but to prove this fact he has not disclosed any source and had not produced any cvideuce. So when pre-emptor wanted to have the suit land omi less price than he was under an obligation to had it proved according to the alleged price which proof is missing so the l)rc-emptor is not a truth lid witness.

14.There is another aspect in tile instant case that pre- emptor neither in his statement nor in plaint, nor in his alleged notices of 'TaIh-e-lshcid stated about confirming of his * intention to prc-ernpt the sak. failure of affirmation of intention in notice 'Talb-e-lshcid' is also fi;ial to the case of pre- emptor. In this respect wisdom is derived from the judgment of I lonourable Supreme Court in case titled "Mu/uzinunid Za/zid Vs Muhaninuid A/i" reported as (PLD 2014 SC 488). The relevant partion of the cited judgment is reproduced for guidance:

"The re.yotidetif slatel in his

t'vide,,ce recorded in the court that

he signed mid scz1 itO/lee to the

vendee but he did not slate tinyw/lere

l that he pjJfrmeil his inleizllo,: 10

exercise his ri'lz( of pre-emp/jon.

Talb-e- Isizizil wit/cl,, in I/ic!, is

cw,f,r,nat:w, of iiiteiz(unz to exerci.ve

a rig/it of pre-emplion eaniwl be lie/il

10 have beezi cs/oh/is/ted by mere

sighing and sendizig ojiwlice"

(tooler/me is mine to e,np/, ox!

As earl icr discussed it was maiidatoy for the pre-emptor to allege and prove all the requisite 'iilabs according to law but from the statenient of PW3 Nasir Khan Postinan who broughi register booking general to tally postal receipts Nos. 1.131 to 1434 on tudicial lile with his record which were issued from his post ollice are 1,'XPW3/ I and EXPW3/2 but saitie witness during cross-examInation had admitted that he is neither postman, nor he registered the said registered post envelopes nor issued the said receipts. So saute is not the postman who delivered above discussed registered post envelopes.

Another witness Gui Muhaiiunad postman of Iladi Kalay post of[icc Branch appear&:d as PW-3A who deposed that.

ATy STED

, Cona

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fliur registered post:, vicle receipts Nos. 1:131 to 1434 were delivered Ihroueh A Ii Re) inian RPM i-lad Kaloy and were retorned unseived due to reliisal of addressees. F)uring cross examination he admitted that he has not, mide any cn(iy himself on EXPW3!1 to UXI'W3/4. lie volunteered that lie was not working ;isa posti aim at tlmt relevant Li me at biaiieh post oil ice I ladi 1K.hahiy.

17.1 hiatt 1ff piiducecl the brother of poStman Wapid A Ii who peued as PW-1 who dating examination in chief sLued that Al i Rellillaii is his brother who worked as pt mutt I.ir I ladi K alay anti he is well conversant '\'itii his signal areS, lie liirther deposed that kr delivery of said rcislercd post envelopes upon addresses/vendc.es we duly in iOtliie(1 uddressces on 1 .U7.2U ii Rw delivery and kept .atd envelopes in our etistody as Anu'i,a,i but they duc.1 not come to receive U front I t.O72() Ii to 22.0.201. Ali Rchnian sent back these nitseived registered post envelopes cm 23.07.201 1. During Cruss-exurii I lattol) tlui.c witness deposed that his brother vcnt to l<aniclui tir Jol) two years ago and he has no contact with him.

l'his Witness during cross-exatni atiuni lititlier deposed that at the lime ni delivery ol said registered post ctivdopes he was ATILflLD

iestii. ti ' '

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accompanying his brother Ali Rehirian. lie admitted it correct that all envelopes or Al) Cards do not bears his signature. lie b

further admitted that no signature or vcrittcation 1rom the I .anmbardar etc of area was obtained on envelopes or on AD Cards. So from the perusal of his statement it transpires that envelopes were kept at the branch post office or with Au Rehmari well 18.07.2011 to 22.07.2011 and no effort for service in person upon the addresscs/vendees was made and the said witness had introduced a dilThrent story that he was accompanying his brother at the time of delivery. it does not appeal to the prudent mind that at the relevant time this witness

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was accompanying Ali Rehmnan and it' it was so then the plaintiff was retluired to allege this fact in his plaint and afterward had proved this fact of accompanying his brother by some corroborating evidence so it gives an irresistible view of the fact that this witness (Wajid All) was later on introduced by plaintiff to till the lacuna about producing of Postman All Rehman.

18.So/from the evidence of plaintiff delivery of notices of Ta/b-e-Jshcid' has not been proved and this important legal aspect was overlooked by the learned appellate

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Court below, SO 10 exercise of powers vested u/s 11IS of CPC findings of appellate Court regarding impugned order, judgment and decree are result of mis-reading, non-reading of evidence and are perverse, hence, are hereby set ask,y"Petition No.537-P/2014 of S'her Aizal dc is accepted in the light of above discussion and observations. So the revision petition No,730-1)/2014 liled by pre-emptor Sher l3ahadar is dismissed accordingly.

Annog,,,ced:

JUDGE

P4

'IIcws'

.CER1

eEROE COPY

Examiner ell Pestiawai Hiph Court PrnImwa( Authoris'ct t.oer j the 0311U 98