Muhammad Zahid Vs Noor ul Huda

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Civil Revision No.841-P of 2019 Muhammad Zahid Versus Mst. Noor-ul-Huda

JUDGMENT

Date of hearing: 11.11.2019

Mr. Rehman Ullah Shah, Advocate, for Petitioner.

AHMAD ALI, J.- Through this common judgment, I intend to decide the following civil revision being the outcome of same Talb-e- Muwathibat and common questions of law and facts are involved therein:

1)C.R. No.841-P of 2019 Muhammad Zahid Vs. Mst. Noor-ul- Huda

2)C.R. No.842-P of 2019 Muhammad Zahid Vs. Ibrahim

3)C.R. No.843-P of 2019 Muhammad Zahid Vs. Mst. Asma-ul- Husna

4)C.R. No.844-P of 2019 Muhammad Zahid Vs. Zia ur Rehman

5)C.R. No.845-P of 2019 Muhammad Zahid Vs. Khadim Ahmad

6)C.R. No.846-P of 2019 Muhammad Zahid Vs. Bilal

2.A summarize background of the present case is that the petitioner pre-empted the landed property purchased by respondent/defendant and in the plaint he contended that he got knowledge of the sale on 24.01.2012, Tuesday, at 04:30 PM in the Hujra of Ahmad Saeed and on getting the knowledge of sale performed jumping demand then and there in the presence of witnesses Ahmad Saeed and Siddique. Thereafter, on 27.01.2012, Friday, he posted notices of Talb-i-Ishhad to each vendee. Plaintiff asserted his superior right being a Khata Shareek and adjacent owner.

Respondent/defendant contested the suit and after recording evidence of parties, the suit stood dismissed vide Judgment/Decree dated 21.01.2019 passed by the learned Civil Judge-II Charsadda and the appeal of petitioner also met the same fate vide Judgment/Decree dated 22.04.2019 pronounced by the learned District Judge Charsadda; hence, present petitions have been filed against concurrent findings of the two courts below.

3.Learned counsel for the petitioner argued that the petitioner validly performed all the talabs as per the requirement of law and there is no deficiency in the performance of talabs. The petitioner pre-empted the entire sale with immediate performance of Talb-e-Muwathibat and attestation of different mutations regarding the same chunk of land does not vitiate the performance of Talb-e-Muwathibat. He maintained that the Talb-e-Muwathibat was not for a specific mutation rather it encompasses entire sales, and therefore, all the suits were required to be consolidated and the decreed, instead, both the learned courts below have erred in dismissing the pre-emption suits of petitioner.

4.I have heard arguments of the learned counsel for petitioner and perused the record.

5.Perusal of the record reveals that petitioner filed six suits against six vendees wherein he has pre-empted six different sale mutations. It is an undeniable fact that the petitioner performed single jumping demand to pre-empt all the six sale transactions as detailed hereunder:

Civil S# Mutation Vendee Revision Mst. Noor ul

1.No.7485 No.41-P Huda

2.No.7488 Ibrahim No.42-P Mst. Asma ul

3.No.7486 No.43-P Husna

4.No.7487 Zia ur Rehman No.44-P

5.No.7483 Khadim Ahmad No.45-P

6.No.7484 Bilal No.46-P

The episode of Talb-e-Muwathibat in all the six suits is one and the same. The petitioner mentioned in Para No.2 of the plaint that:

"يہ کہ مورخہ 24.01.2012بروز منگل بوقت سہ پہر 04:30بجے )ساڑھے چار بجے( مدعی کو حجره احمد سعيد واقع سعيد آباد مہره پڑانگ چارسده بذريعہ احمد سعيد ولد محمد سعيد ساکن سعيد آباد مہره پڑانگ انتقال متدعويہ اور بيع کا علم ہوا تو مدعی نے اُسی وقت مجلس ميں گواہان احمد سعيد ولد محمد سعيد اور صديق ولد احمد گل ساکن مہره پڑانگ سعيد آباد تحصيل و ضلع چارسده اراضی بيع شده پر واضح الفاظ ميں حق شفع کا اعالن کيا اور حسب قانون مدعی نے طلب مواثبت کا قانونی تقاضہ پورا کيا۔

6.Each plaint contains almost the same particulars of Talb-e-Muwathibat. In his examination in chief as PW-6, the petitioner/pre- emptor stated that:

“Stated that on 24.01.2012 at 4:30 pm I came to the Hujra of one Ahmad Saeed. Where Sadiq was also present but I came to know through Ahmad Saeed regarding the sale of disputed property on different mutations. As I, informed regarding the sale about disputed property soon after I express my intention in the said Majlis to exercise my right of pre-emption.-- Here petitioner/pre-emptor has not mentioned anything about the suit mutation as contended in the plaint rather word ‘different mutations’ is used.

7.The informer, Ahmad Saeed, discloses the episode of Talb-e-Muwathibat as under:

“Stated that on 24.01.2012 at 4:30 pm I along with Sadiq s/o Ahad Gul were sitting at my Hujra. Meanwhile one Zahid (plaintiff) came to my hujra. I informed

plaintiff that the disputed property has been purchased by Noor-ul- Huda and others through different mutations. At that very time the plaintiff announced/claimed in the presence of Sadiq and me that being co-sharer he will sue the vendee and will exercise his right of pre-emption.”

This witness has not mentioned the word ‘mutation’ or ‘different mutations’ as referred in plaint or statement of pre-emptor rather he told the name of vendee and petitioner in the jumping demand, firstly emphasised on his rights as a co- sharer, then he intended to sue the “VENDEE” and then he expressed his right of pre-emption.

8.The evidence of pre-emptor and informer do not commensurate each other. The episode of Talb- e-Muwathibat as stated by both the witnesses is contradictory. As per informer the plaintiff first declared his co-sharer-ship and then, that he will sue the vendee, and in the third place, he declared to exercise his right of pre-emption. The second witness of the Talb-e-Muwathibat i.e. Sadiq son of Ahad Gul, is of a different stance. He in his examination in chief stated:

“Stated that on 24.01.2012 at 4:30 pm I along with Ahmad Saeed were sitting in the Hujra of Muhammad Saeed, meanwhile plaintiff namely Zahid came to the Hujra of Ahmad Saeed wherein Ahmad Saeed informed Zahid that the disputed property has been purchased by defendant through mutation. On hearing the said story, the plaintiff (Zahid) at once announced his right of pre- emption and clearly stated in our presence that he will sue upon the defendant.”

This witness told that information conveyed to petitioner that “disputed property has been purchased by defendant” and petitioner exercised his right of pre-emption against defendant. Now, there are six defendants/vendees in six suits and against whom petitioner exercised the right of pre- emption is still a question.

9.From the above, the mode, manner and specific words used in the performance of Talb-e- Muwathibat have not been given by any of the witnesses. The stance of all the three witnesses is different and Para No.2 of plaint further differs

from the evidence put forth by the pre-emptor and the witnesses of Talb-e-Muwathibat. Being a pre- emption suit, the petitioner was required to state in evidence the exact words which he used in the jumping demand. The right of pre-emption is a defeasible right and it is settled law that all the details of Talb-e-Muwathibat are mandatory requirements to be mentioned in the plaint, so that, plaintiff may prove the same during the trial; and it is so because a pre-emptor may not improve his case during evidence. The august Apex Court in the case titled ‘Khan Gul Khan and others Vs. Daraz Khan’ (2010 SCMR 539) has provided valuable guidance:

22.It is settled principle of law that right of pre-emption is a defeasible right as a matter of fact keeping in view the ground realities and historical perspective of the law of pre-emption and can be defeated by permissible means.

Meaning thereby the provisions of Pre-emption Act are to be construed strictly and conservatively because the law of pre-emption constitutes a drawback on the principles of freedom of contract and security of

title and as such its provision should be construed and applied strictly against discretion conferred upon the Court by any provision of law and should be exercised with the greater care. This is a fundamental distinction of pre- emption law with other laws of the land. It is a special law having a specific features, therefore, its provisions" by all means to be construed strictly in terms of the object of framing the pre-emption law as depicted from the preamble of the Act (Punjab Pre-emption Act In view of this, the petitioner has failed to give a transparent account of the performance of Talb-e-Muwathibat.

10.Undeniably the factum of sale through different mutations was disclosed to petitioner but there is nothing on the entire case record to show that the performance of Talb-e-Muwathibat was for which of the six mutations. Plaintiff contends in each plaint that he gained knowledge of the suit mutation and immediately performed jumping demand. There are six suit mutations in six suits, however, it is still in mystery that information

regarding which of the six mutations was communicated to him first. The Talb-e-Muwathibat is required to the pronounced immediately after the disclosure of information and guidance in this regard may be sought from the case of Mian Pir Muhammad and another Vs. Faqir Muhammad through L. Rs. and others PLD 2007 SC 302.

Petitioner was required to announce right of pre- emption after getting information of the first mutation and if he waited that all the mutations be come out of the mouth of informer, this wait will take-down the performance of first talab.

Admittedly the petitioner made only one jumping demand and therefore, it can be said he waited for all the information of six mutations be conveyed, and as such, no immediate Talb-e-Muwathibat has been performed. In the case of Mst. Rooh Afza VS.

Aurangzeb and others (2015 SCMR 92), the august supreme court of Pakistan has taken a serious note of the delay in making Talb-e-Muwathibat and non- suited the pre-emptor by holding that:

In addition to the above, an examination of some Indian case- law also supports the claim of the respondents that slightest lapse of

time is fatal to the case of the appellant. The cases of Sonabashi Kuer v. Chaudhary Ramdeo Singh (AIR 1951 Pat 521) and Muhammad Ahmad Said Khan v.

Madho Prasad (35 Ind Cas 911) both clarified that the reasons why Talb-i- Muwathibat has to be performed with alacrity is because the purpose of making an immediate claim is to demonstrate that the pre-emptor has not relinquished his right of pre- emption.

11.In the case of Feroz Khan VS. Mst. Malik Zaro (2016 YLR 811) two mutations were pre- empted by way of single Talb-e-Muwathibat and this court non-suited the pre-emptor on the score that he has not mentioned in each suit that for which mutation the pre-emptor made Talb-e- Muwathibat. The relevant paragraph runs as under:

“12. In addition to above it further transpires that on 28.06.2008 two mutations were attested and plaintiff had made Talb-e-Muwathibat on both sale mutations, but had not mentioned in each suit that for which mutation she made Talb-e- Muwathibat first either against Mutation No.304 or 303 challenged

in connected C.R. No.4/2012 or simultaneously. So by concealing this fact, the pre- emptor/respondent has failed to prove Talb-e-Muwathibat in accordance with law.”

12.In the view of above discussion, the petitioner/pre-emptor has failed to comply with the foremost requirement of a pre-emption case i.e.

Talb-e-Muwathibat. Performance of a single Talb- e-Muwathibat encompassing all the sales in favour of different vendees cannot be taken as sufficient.

The pre-emption act being a special law, a pre- emptor is required to announce his jumping demand in a specific manner explicitly stating the person and mutation against whom he is pronouncing his intention. A general expression to pre-empt a number of sales simultaneously is in no way sufficient to absolve the pre-emptor from the responsibility to pre-empt each and every sale in a precise manner, held Talb-e-Muwthibat not proved.

13.Apart from the above, in all these cases pre- emptor had claimed that he had sent notices to vendees/respondents through registered cover with AD card but this fact has not been proved. It is

established principle of law that facts alleged in the pleading shall be proved while it has been made mandatory by the provisions of sub-section 3 of Section 13 of the NWFP Pre-emption Act, 1987 that the required notices shall be sent to the vendees through registered cover with AD card. The petitioner has failed to bring on record the acknowledgment due while the postman which was produced by the petitioner was failed to prove the factum of delivery of the said notices upon the vendees. The petitioner/pre-emptor has not tried to produce any secondary evidence regarding notices.

Reliance could safely be placed on case titled “Muhammad Nawaz & others versus Akram Khan” reported in 2015 MLD 1757. So much so, it has been held by the august Supreme Court of Pakistan in case of “Allah Ditta & others versus Muhammad Anar” reported in 2013 SCMR 866.

14.Moreso, in the instant cases, the scriber of notices of Talb-e-Ishaad was also not produced, which is also fatal for pre-emptor.

Reliance in this respect may be placed on case titled “Daim Khan & others versus Muslim Khan” reported in NLR 2015 Civil 28.

15.So by cutting the cackle, petitioner has squarely failed to establish the Talb-e-Muwathibat, therefore, both the Courts below have rightly non- suited him. The impugned judgments of the two Courts below being well reasoned and based on proper appreciation of evidence and the law on the subject, do not warrant any interference by this Court in its revisional jurisdiction. Accordingly, all the revision petitions being meritless are hereby dismissed in limine.

Announced

JUDGE

SB: Hon’ble Mr. Justice Ahmad Ali