Abdul Qayum etc vs Abdul Salam

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

C.R No: 20 of 2010

JUDGMENT

Date of hearing..................04.05.2016..............................

Appellant(s)/Petitioner (s).................................................

Respondent (s).....................................................................

QALANDAR ALI KHAN:-J: This civil revision by Haider Zaman, Muhammad Arif and Abdul Majeed sons of Haji Abdul Aziz, petitioners, is directed against judgment and decree dated 04.03.2008 of the learned Additional District Judge-V, Haripur, in Civil Appeal No.1/13 of 2006, whereby appeal of the respondents against the petitioners was accepted and judgment and decree of the learned trial Court/Civil Judge-XI Haripur, dated 18.05.2006, was set aside, whereby, suit of the predecessor of the respondents, Ghulam Younas,

against the petitioners for possession through pre-emption was dismissed. As a result of acceptance of the appeal and setting aside judgment and decree of the learned trial Court, the learned Appellate Court granted decree for possession through pre-emption in favour of the respondents against the petitioners, therefore, the petitioners approached this Court by invoking its revisional jurisdiction for setting aside judgment and decree of the learned Appellate Court and restoring the judgment and decree of learned trial Court and dismissal of suit of the respondents.

2.The essential facts leading to the instant revision petition are that predecessor of the respondents, Ghulam Younis lodged a suit for possession through pre-emption in respect of shop No.3/C situated on Railway Station Road, Haripur City sold vide sale deed No.1322 attested on 12.09.2002 for consideration

of Rs.600000/-. The plaintiff in the suit claimed his superior right of pre-emption on the basis of contiguity of his property with the suit shop and also alleged fulfillment of the requirement of ‘talbs’ in accordance with law and further that the sale price mentioned in the sale deed was inflated and much more than the actual price paid for the suit shop.

3.The suit was resisted by the petitioners/defendants on several legal and factual grounds, including waiver on the part of the plaintiff/pre-emptor and non fulfillment of the pre-requisite of ‘talbs’ as prescribed by the law.

4.The pleadings of the parties were reduced to as many as 9 issues, and evidence of the parties was recorded The learned trial Court/Civil Judge-XI, Haripur, dismissed the suit vide judgment dated 18.05.2006, mainly, on the ground of non- fulfillment of the requirements of ‘talbs’ by plaintiff/pre-emptor. However, the

appeal preferred by the respondents was accepted and judgment of the learned trial Court set aside and decree for possession through pre-emption was granted in favour of the respondents against the petitioners subject to deposit of the amount of Rs.900000/-, vide the impugned judgment dated 04.03.2008 of the learned appellate Court/Additional District Judge-V, Haripur, which is impugned herein, inter alia, on the grounds of non compliance with mandatory provision of Order-XX Rule-5 CPC, non appreciation of law regarding mandatory provisions of ‘talbs’ questionable nature of the special power of attorney, non appearance of the preemptor to prove ‘Talb-i-Muwathibat and Talb-i-Ishad and misreading and non reading of evidence available on record.

5.Arguments of M/S Muhammad Naeem Anwar and Raja Muhammad Shakeel, Advocates for the petitioners

and Mr. M.A Tahir Kheli, Advocate for the respondents heard, and record perused with their valuable assistance.

6.The most critical and pivotal issue, which remained instrumental in deciding fate of the case at both trial and appellate levels was fulfillment of requirements of ‘talbs’ namely Talb-i- Muwathibat and Talb-i-Ishhad. In the plaint, the plaintiff/pre-emptor claimed that he was informed by his son Tahir Ali (PW.5) about the impugned sale transaction at his residence, at 7.00 P.M on 12.09.2002, whereupon he

immediately declared his intention to pre-empt the sale and in furtherance of declaration, notice of Talb-i-Ishhad was sent through registered AD to respondents on 24.09.2002.

7.The right of preemption is right of substitution whereby a preemptor substitutes a lawful vendee,

therefore, the right has been declared as feeble and qualified with certain pre- conditions within a specified time framed, unlike other civil rights which are not subject to such stringent pre- conditions. It is a matter of common knowledge that right of pre-emption has become a tool in the hands of quite a number of people to extract money from genuine buyers by putting them under the fear of suit for pre-emption.

The requirements of talbs appear nothing else than to test the sincerity of a preemptor, and provide protection to lawful vendees against malicious pre- emption suit, while keeping in view the above stated unsavory trend in the society; which, simultaneously, places responsibility on the Courts to enforce the right of pre-emption with great care and caution.

8.The plaintiff/preemptor

claimed that he was informed about the sale transaction in respect of the shop in question by his son, whereupon he immediately declared his intention of pre-empting the sale i.e. Talb-i- Muwathibath or Jumping demand on 12.09.2002, followed by notice of Talb- i-Ishad on 24.09.2002; but did not appear himself in the witness box to substantiate his claim of fulfilling the requirements of Talb-i-Muwathibat and Talb-i-Ishhad. His son Shahid Ali (PW.4) appeared as his attorney on the basis of power of attorney, which was declared fake and inadmissible in evidence, together with statement of the PW on the basis of the said power of attorney, in the judgment of the learned trial Court. Apart from findings of the trial Court with regard to admissibility of the power of attorney, the statement of the

attorney, Shahid Ali (PW.4) also raised questions about the power of attorney when he admitted that he had purchased stamp paper for the power of attorney and admitted that he had thumb impressed the stamp paper but later corrected himself that he made his father to thumb impress the deed. Even if the power of attorney is presumed valid and admissible, it would be of no help for the case of the

plaintiff/preemptor as the attorney admitted in his statement before the Court that he was not present on the occasions of talb-i-muwathibat and talb- i-Ishhad. (2007 SCMR 957), (2012 SCMR 1106) and (PLD 2012

Peshawar 112).

9.The evidence of the

plaintiff/pre-emptor need to be accepted with a degree of scepticism as the plaintiff/pre-emptor did not appear

in the witness box, his so called attorney was not present at the time of talbs and the informer as well as witness of the talbs, Tahir Ali, son and the other witness of Talb-i-Ishhad, Shakeel Ahmed is the family friend of plaintiff/pre-emptor. Even then, Tahir Ali failed to mention the place where he informed the plaintiff/pre-emptor about the sale transaction and where the latter made Talb-i-Muwathibat or ‘Jumping demand’. In the

circumstances, it can be safely concluded that the plaintiff/pre-emptor failed to discharge the onus of proving fulfillment of requirements of talbs, thereby extinguishing his right of pre- emption under Section 13 of the NWFP (KPK) Pre-emption Act, 1987.

10.In view of the above narrated facts, there was no basis for grant of decree for possession through pre-

emption in favour of the plaintiff/pre- emptor, hence revision petition is accepted and the impugned judgment of the learned appellate Court/ADJ-V, Haripur dated 04.03.2008 is set aside and that of learned trial Court/Civil Judge-XI, Haripur dated 18.05.2006 is restored and suit of plaintiff/pre-emptor for possession through pre-emption is dismissed, leaving the parties to bear their own costs.

Announced:

JUDGE