Amir Shah vs Mehr Janan

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

CR No.15 -B of 2011

JUDGMENT

Date of hearing 19.10.2015 .

Appellant-Petitioner: Mr. Saleem Ullah Khan Ranazai, Advocate.

Respondent: By Haji Zafar Iqbal, Advocate.

IKRAMULLAH KAHN, J.--- Petitioners have called in question the judgment and decree dated 26.01.2011 of learned District Judge, Lakki Marwat, whereby accepting appeal against the judgment and decree dated 29.01.2010 of learned Civil Judge-V, Lakki Marwat, decreed the suit in favour of respondent/ plaintiff.

2.Brief facts leading to filing of instant petition are that, respondent/ plaintiff Mir Janan filed a pre-emption suit against petitioners/defendants qua sale mutation No.1645 dated 20.12.2003, alleging therein that he came to know about suit sale on 13.04.2004, on Tuesday, at 10.00 hours at Patwar Khana, situated in Sarae Gambila, in presence of his bother

Muzafar Khan, through Muhammad Usman his brother and on this information he immediately performed Talb-e- Muwathibat. On the same day i.e. 13.04.2004, he sent notices Talb-e-Ish’had, through registered letters AD attested by two truthful witnesses and thereby performed Talb-e-Ish’had.

3.The stance of pre-emptor was controverted by petitioners/ defendants in their written statement, wherein they raised so many objections both legal and factual. In view of divergent pleading of the parties, issues were framed and parties led pro and contra evidence in support of their respective stance. The lower court after hearing arguments of learned counsel for the parties dismissed the suit of respondent/plaintiff, vide judgment and decree dated 29.01.2010. Aggrieved from the same, the respondent/ plaintiff filed an appeal in the Court of learned District Judge, Lakki Marwat, which was allowed and suit of respondent/ plaintiff decreed vide impugned judgment and decree dated 26.01.2011, hence this revision petition.

4.Learned counsel for petitioners contended that the impugned judgment is against law and facts on record; that learned appellate court below has not properly appreciated the evidence on record, fell in error of law of misreading and non- reading of evidence, which has occasioned into miscarriage of justice.

5.On the other hand, learned counsel for respondent supported the impugned judgment and argued that no misreading of either law or evidence has been occasioned, therefore, this court could not interfere, in the impugned judgment in exercise of its revisional jurisdiction.

6.I have heard learned counsel for the parties and have gone through the record.

7.The record reveals that petitioners had denied receiving any notice, therefrom the respondent/ plaintiff, through post or otherwise. Respondent/plaintiff had failed to prove factum of delivery of the registered post personally upon

every petitioners, in view of subsection 3 of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, which reads as:

(3)Where a pre-emptor has made Talb-i- Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 34, or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption:

Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.

8.The PW-3 Muhammad Akram, Delivery postman had stated in his statement, that he had delivered, all the registered post to Amir Shah, one of the petitioner. As very much clear therefrom the witness of respondent/ plaintiff itself that the required notice under section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, had not been personally

served upon each and every petitioners/defendants except the petitioner No.1, in such state of affairs, when notice were received by a single vendee, the suit become of partial pre- emption, which is not maintainable in view of the provision contained in section 13(3) of the Khyber Pakhtunkhwa Pre- emption Act, 1987.

9.Right of pre-emption is indivisible, therefore, the pre-emptor is bound to serve notices on all vendees, if more than one, to made Talb-e-Ish’had complete in view of section 13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987, otherwise, pre-emptor would fail to get decree for possession, over the part of the pre-empted property, which is otherwise too not practicable, if the property purchased is indivisible or its partition, could create more complications and the vendees against whom Talb-e-Ish’had is not property made would suffer “Zarar” to make alien person co-owner in the joint unpartitioned property, while on the other hand, to grant decree, in regard to the part of the suit property would be also not convenient to the pre-emptor itself.

10.It has also been stated by the pre-emptor/ respondent, that the informer, being his brother had informed him in regard to the sale of the suit property within the office of the Patwari, but during course of trial of the suit had stated that he was standing aside the office and he was informed by his brother, when he came out of the office.

11 Both the witnesses of Talb-e-Muwathibat had not mentioned the exact time of making or performance of Talb-e- Muwathibat by the respondent/pre-emptor, although, it has been mentioned in the pleadings to be 10.00 AM.

12.The contradictions, occurred in respective statements of PWs could not be termed as non material, as, the time period provided therefor making Talb-e-Muwathibat is Zero. So non-mentioning of exact time, which had already entered in the pleading, is a serious flaw and it could not be stated that pre-emptor had made, Talb-e-Muwathibat in accordance with the provision of section 13(2) of the Khyber Pakhtunkhwa Pre-emption Act, 1987.

13.In the case “Allah Ditta through LRs and others Vs Muhammad Anar” (2013 SCMR 866) the apex Court has non-suited the pre-emptor on the ground, that the witnesses were not consistent on the place of making Talb-e-Muwathibat.

14.In “Amir Mehmood through Legal heirs and 7 others Vs Muhammad Ashraf” (PLD 2011 Peshawar 116), this Court had non-suited the pre-emptor, where in cross- examination, one of the witness of Talb-e-Muwathibat instead of mentioning of exact time, when the Talb-e-Muwathibat was made, had mentioned that it was “Shamvela.”

15.It is incumbent upon the pre-emptor in order to succeed in decree, for possession through exercise of right of pre-emption, shall qualify the required test, as mentioned in section 13 of the Pre-emption Act, as well as to prove, the facts alleged in the pleadings.

16.As respondent/ plaintiff had not proved, the due performance of Talb-e-Muwathibat and Talb-e-Ish'had as

required under section 13 of the Khyber Pakhtunkhwa Pre- emption Act, 1987, his suit could not be decreed.

17.For the reasons, this revision petition is accepted and the impugned judgment of learned appellate court is set aside accordingly. Consequently, the judgment of learned Civil Judge-V, Lakki Marwat dated 29.01.2010 is restored.

Announced

*Azam/P.S*

JUDGE