Fazal-e-Karim Vs Anwar Zeb etc

JUDGMENT SHEET

IN THE PESHA WAR HIGH COURT,

MINGORA BENCH SWAT.

(Judicial Department)

CR # 200-M of2Olf

Fazal Karim Vs An war 11th etc:

JUDGMENT

Date of hearing 29/6/2017

4y ,4L,fjuji Appellant-Petitioner 4A7 iC4 pz. ,4dv&2&. i&i bnlvkMt L4: 4/ Pa,i, t&IJLIL itL. 4cM1al& IJAZ ANWAk.J.--- Fazal Karim, petitioner through the instant Civil Revision Petition, called in question the consolidated judgment and decree of the learned Additional District Judge / Zila Qazi-il, Swat dated 18.4.2015 whereby while dismissing the appeal bearing No: 15/13 of 2014 titled Fazal Karim Vs Anwar Zeb etc and appeal bearing No.16/13 of 2014 titled Fazal Karim Vs Rafiullah etc, upheld the consolidated judgment and decrees dated 21.02.2014 passed by Civil• Judge / Illaqa Qazi Khwaza Khela by which he dismissed the suits bearing No:59/1 dated 26.4.2011 titled

Fazal Karim Vs Anwar Zeb and suit No:98/1 dated 11.6.2011 titled Fazal Karim Vs Rafiullah etc filed by the petitioner /plaintiff for possession through pre-emption.

2.Facts in short of suit No.59/1 instituted for possession through pre-emption of the share of defendant No.2 to 5 in the house in question frilly detailed in the heading of the plaint. It is averred in the plaint that he and defendants No.2 to 5 inherited the disputed house from their father. On Thursday dated 21.4.2011 at 05:00 PM he along with Riaz Ahmad s/o Mian Salim Ahmad and Inayatullah s/o Usman Ghani while present in his Travel Agency Azi p Khela situated in Khwaza Khela Bazar, Abdul Mustaan 5/0 Rashid Ahmad came there told that defendant No-I purchased the share of defendants No.2 to 5 in lieu of Rs.21,00,000/- in the suit house, hence, on this information regarding sale, he immediately pronounced readiness to purchase the share of his sister in the house in question on payment of sale consideration being co-owner in the same.

Plaintiff thus performed Talb-i-Muwathibat in presence of said witnesses while also performed Talb-i-lsh'had by

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sending written notice through registered post to defendant S No.1. That plaintiff being co-owner in the disputed house has got superior rights of pre-emption and the defendants did not inform him regarding sale of the suit house.

On summoning the respondents / defendants,

defendant No.1 contested the suit by way of filing written statement, wherein he alleged sale of the pre-empted share to Hayat Ullah vide registered sale deed No.126 dated 26.4.2011 executed on 18.4.2011 in lieu of sale consideration of Rs.32,00,000/-.

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, Plaintiff also instituted suit No.98/1 against the subsequent purchasers Rafiullah, Shafiullah and Hayatullah.

It is averred in the plaint that he while present in his said Travel Agency along with Zafqar Au s/o Gui Sanobar, GuI Zaman s/o Talimand and Rafiq Ahmad s/o Sultan-e-Ronie on 06.6.2011 at 1415 hours when Fazal Rabi came after attending the court in connection with a case titled as Fazal Karim Vs Anwar Zeb (Suit No-59/1) and informed him regarding purchase of the suit property from Anwar Zeb (defendant in suit No-59b1) by defendant No.1, hence, on

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getting this information he pronounced his right of pre- emption and also performed on 07.6.20 11 Talb-i-Ish'had by sending notices to defendants No. I to 3 through registered post. It is thrther averred in the plaint that Anwar Zeb I defendant No.4 with collusion of defendants No.1 to 3 got prepared a bogus and illegal registered deed as defendant No.4 had firmed belief of success of the earlier suit of pre- emption filed by the plaintiff against him. That plaintiff has superior rights of pre-emption while defendants have no such rights. On reftisal of defendants to receive actual sale amount r,

and to hand-over possession to plaintiff, thus, the suit was filed.

5.Out of divergent pleadings of the parties, the learned trial court framed eight (8) consolidated issues including the relief. After producing pro and contra evidence by the parties and hearing arguments, the learned trial court dismissed both the suit of the plaintiff vide consolidated judgment and decçee dated 21.02.2014. Aggrieved therefrom the petitioner I plaintiff moved Civil appeals No.1 5/1 3 and 16/13 of 2014 in the first appellate court which too were

dismissed by the learned Additional District Judge / Izafi

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Zilla Qazi-TI, Swat vide consolidated judgment and decree dated 18.4.2015, hence, the above judgments and decrees of the two courts below have been assailed through the instant Civil Revision Petition in this court.

6.Learned counsel for petitioner argued that petitioner has initially filed a pre-emption suit No-59/1 of 2011 on 26.4.2011 about the property against the respondents. The first vendees malafidely sold-out the pre- empted property to respondent No.1 to 3 through registered sale deed No.126 dated 26.4.2011 executed on 18.4.2011.

The petitioner has essential rights of pre-ernption as he is contiguous owner besides sharing other amenities to the suit property. The learned counsel for the petitioner argued that in both the suit written statements were filed and vide order dated 07.11.2012 both the suits were consolidated and thereafter consolidated issues were framed. Learned counsel appraised the court that the suit was dismissed vide judgment and decree dated 21.02.2014 by the learned trial court. He argued that Issue No.3 is very important wherein the learned

trial court mis-read the record and handed-down findings against the petitioner on the ground that the necessary demands were not flulfilled in accordance with law. The learned counsel argued that in appeal the learned appellate court vide judgment and decree dated 18.4.20 15 though dismissed the appeal but gave findings in Para- 15 of the judgment that since the second sale was effected during the pendency of the first suit, therefore, there was no need of any (Talbaat) against the second sale. The learned counsel thus argued that the appellate court while giving such findings has supported the case of the petitioner, but to his surprise the appeal was dismissed. Learned counsel for the petitioner referred to the statements of PWs 2 & 3 who were the witnesses of Talbaat and argued that they both stick to their stances about the making of TALABS by the petitioner in their presence. He, however, attacked the findings of both the lower forums when they only picked the stances in cross- examination to the following effect:-

The learned counsel is of the view that since the son of the

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petitioner was pursuing the cases as attorney, therefore, the intention of the witnesses was about the proceedings in the suit and not about Talbaat. Learned counsel than referred to the statement of informer namely-Abdul Mastaan and argued that similar statement in cross-examination was taken into account by both the lower forums and thus completely mis- read the evidence. The learned counsel than referred to the statement of PW-8 who deposed to the fact about the service

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/ of Talb-i-lsh'had. Learned counsel relied upon 2003 PLD Peshawar 179 and argued that where facts were established and not shaken in cross-examination are the proof that needs not further evidence in this respect. Learned counsel further argued that minor omission and contradiction should not prejudice the case of the pre-emptor. Learned counsel for the petitioner argued that by dent of time now the superior court considered that right of pre-emption is no more the piratical right but is a substantial one being so recognized by Islamic Law, he requested for acceptance of the revision petition.

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7 Learned counsel for the respondents, however, referred to the important statements of PWs-2, 3 4 & 8 and argued that without the proof about the Talbaat as required U/S-13 of the Pre-emption Act no pre-emption suit can proceed. Learned counsel for the respondents specifically referred to the statement of officials from post offices and argued that notice was never personally served on the vendees and thus on this score alone the suit was liable to dismissal and placed reliance on 205 SCMR 1222. Learned counsel for the respondents ftirther argued that U/S-I 15 of the CPC this court has very limited jurisdiction when there are concurrent findings on fact of two courts below and, therefore, the High Courts always remained reluctant to disturb such findings. Learned counsel placed reliance on

2009 CLC 880, 1992 SCMR 1780, 2003 MLD 873, 2010

YLR 1190, 2011 CLC 244, 2013 SCMR 1113, 2015 MLD

1228, PLD 2015 Sc 69 and PLD 2003 Sc 315.

8.I have heard the arguments of the learned counsel for the parties and gone through the available record.

9.Perusal of the record would reveal that the petitioner has initially brought the suit for possession through pre-emption against the respondents regarding suit property claiming prior right of its purchase on the basis of being its contiguous owner and sharing other amenities in the suit property. The suit was filed on 26.4.2011, however, it transpires that the suit property was further sold and as such the present petitioner filed another suit against the subsequent purchaser. The learned trial court vide its judgment and decree dated 21.02.2014 dismissed the suits of the petitioner vide consolidated judgment holding that the petitioner failed to fulfilled the 'Talbaat" as provided U/S.13 of the Khyber Pakhtunkliwa Pre-emption Act 1987.

10.Both the suits were filed by the petitioner through his son as special attorney. PWs-2 & 3 appeared as witnesses of "Talabs" in favour of the petitioner while PW-4 appeared and narrated the facts about giving first information to the petitioner regarding the sale of the disputed property.

The PW-2 in his cross-examination made admission to the following effects:-

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-'F SYJIJJfrtIteJLJAL J'ij H. Similarly, PW-4, the informer in his statement deposed that:-

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The most important is the cross-examination of the petitioner wherein he too admitted that :- 11 Similarly, he further admitted that :- PW-8 was a postman who appeared and stated in his cross-examination that:-

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14.From the perusal of the above statements and

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admissions of the petitioner and his witnesses proved that the mandatory "Talabs" as required under the law has not been fulfilled. The foundation of the claim of pre-emption rested on making an immediate declaration of intention to assert one's right (Talb-e-Muwathibat) and if the same was not done, the entire structure collapses. The petitioner and his witnesses clearly denied any making of "Talbaat" in their cross-examination, thus, the learned lower forums have duly considered these aspect of the case in its true prospective.

The right of pre-emption would not be exercised unless and untill the pre-emptor had performed "Talb-e-Muwathibat' immediately about the sale in the same meeting. Besides the pre-emptor had to substantiate his claim by producing convincing, cogent, reliable and confidence aspiring evidence to prove "Talabs' in accordance with law. Since the performance of "Talbaat" and its proof is a pure question of fact regarding which two courts had appreciated the evidence minutely and discussed the same in detail and thereafter, had arrived at concurrent conclusion.

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Similarly from the statements of officials of Post Offices, it is also proved that notices "Talb-e-Ishhad" were never served personally on the vendees and on this score alone the suit was liable to dismissal. Reliance is placed on

2015 SCMR 222.

In the instant case concurrent findings of facts were given by the two courts below, no mis-reading of evidence, non-consideration of material evidence, erroneous assumption of facts or arbitrary exercise of power is pointed- out, hence, this court will refrain itself from interfering in the judgments and decreejof the two courts below. I am fortified in my above view from the judgments reported in 2013

SCMR 1113,2015 PLD SC 69, 2013 SCMR 866,2011 CLC

224 (P1-IC) and 2009 CLC 880 (PHC).

For what has been discussed above, this revision petition fails, it is dismissed accordingly.

Announced.

*IiflraIl steno* r~

JUDGE