Mst.Bukhari Jan vs Haji Akhtar Khan

2010 Y L R 3066

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. BUKHARI JAN---Petitioner

Versus

Haji AKHTAR KHAN and another---Respondents

Civil Revision No. 207 of 2005, decided on 2nd July, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Preamble, Ss.6 & 13---History and purpose of pre-emption---Suit for preemption---Making of Talbs---Purpose and object of the Legislature behind the promulgation of North-West Frontier Province Pre-emption Act, 1987 was to bring the pre-emption law in conformity with the Injunctions of Islam---Reference of date, time and place in the notice of `Talb-i-Ishhad' and plaint was a must---In the present case, notice of `Talb-i-Ishhad' and the plaint were silent with regard to the source of information, date, time and place where the factum of sale first came to the knowledge of pre-emptor; and h~ accordingly performed the jumping demand of `Talb-i- Muwathibat'---Findings arrived at by the two courts below dismissing the suit for non- performance of talbs in accordance with law could not be interfered with in exercise of revisional jurisdiction of High Court, when no mis-appreciation of law and evidence was there.

Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883; Khani Zaman v.

Shah Hussain and others PLD 1998 SC 121; Altaf Hussain v. Abdul Hamid alias Abdul Majeed through 'legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and others 2000 SCMR 329; Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201; Abdul Aziz through L.Rs. and others v. Malik Aman 2007 SCMR 383; Akbar Nawaz Khan v. Sher Dil Khan and 2 others 1995 MLD 1061; Haji Muhammad Salim v. Khuda Bakhsh PLD 2003 SC 315; Mian Pir Muhammad v. Faqir Muhammad (deceased) through L.Rs. and another PLD 2007 SC 302 and Mst. Imtiaz Begum and others v. Mst. Sultan Jan 2008 SCMR 1268 ref.

Abdul Sattar Khan for Petitioner.

S. M. Attique Shah for Respondents.

Date of hearing: 2nd July, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The plaintiff/petitioner has impugned the concurrent findings of the two Courts below vide which her suit for possession through pre-emption against a registered sale deed dated 12-12-1994 was dismissed throughout.

2.The learned counsel for the petitioner at the very outset by placing reliance on Amir Jan and 3 others v. Haji Ghulam Muhammad (PLD 1997 Supreme Court 883), Khani Zaman v. Shah Hussain and others (PLD 1998 Supreme Court 121), Altaf Hussain v. Abdul Hamid alias Abdul Majeed through legal heirs and another (2000 SCMR 314), Haji Noor Muhammad v. Abdul Ghani and others 2000 SCMR 239, Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others (2005 SCMR 1201) and Abdul Aziz through L.Rs. and others v. Malik Aman (2007 SCMR 383) submitted that the petitioner performed her `Talb-i- Muwathibat' in accordance with law and reference of date, time and place in the notice as well as in plaint was not the requirement of law. Through evidence she has proved the performance of requisite 'Talbs'. The findings of the two Courts below on the subject are the result of misappreciation of law.

3.The learned counsel for defendant/ respondent submitted that the case-law referred to by the learned counsel for petitioner cannot be relied upon as the controversy with regard to reference of date, time and place has now been settled and the notice of 'Talb-i-Ishhad' and the plaint devoid of such details would deserve outright dismissal.

4.Learned counsel for the parties were heard and record of the case was perused. The same would reveal that all the material issues including the superior right of pre-emption have been decided in favour of the petitioner except issue No.5 regarding performance of 'Talbs'. Her suit has concurrently been dismissed for non-performance of 'Talbs' in accordance with the settled law of the land.

5.The perusal of her notice and plaint would reflect that the same are devoid of details regarding source of information, date, time and place of acquiring knowledge of sale and performance of 'Talb-i-Muwathibat'.

6.The history of pre-emption is centuries old. Much has been said on pre-emption law. Further discussion would only amount to repetition. The present law of pre-emption came into existence through N.-W.F.P. Act X of 1997 and the purpose and intention of the legislature behind the promulgation of the Act was to bring the pre-emption laws in conformity with the injunctions of Islam as set out in the Holy Quran and Sunnah. Though the repealed Act of 1950 had no such provisions with regard to performance of 'Talbs' for the exercise of right of pre-emption but the performance of 'Talbs' is not alien to the concept of preemption in Islam.

7.For the first time, the question of details with regard to date, time and place for performance of `Talbs' was introduced in the case of Akbar Nawaz Khan v. Sher Dil Khan and 2 others reported in 1995 MLD 1061. This view went on to changing and once the view as reflected in the case-law referred to by the learned counsel for the petitioner prevailed. But the verdict given in the case of Haji Muhammad Salim v. Khuda Bakhsh (PLD 2003 Supreme Court 315) settled the controversy. Now it has become settled law given by the august Supreme Court that reference of date, time and place in the notice of 'Talb-i-Ishhad' and plaint is must.

8.While seen in this context, the case in hand is not in accordance with prevailing settled law.

The notice of 'Talb-i-Ishhad' and the plaint are silent with regard to the source of information, date, time and place where the factum of sale first came to the knowledge of the pre-emptor and accordingly performed the jumping demand of 'Talb-i-Muwathibat'. Reference in this regard amongst others can be made to Mian Pir Muhammad v. Faqir Muhammad (deceased) through L.Rs. and another PLD 2007 SC 302, Mst. Imtiaz Begum and others v. Mst. Sultan Jan (2008

SCMR 1268).

9.The above discussion would suggest that the findings arrived at by the two Courts below are in accordance with the law which cannot be interfered with in exercise of revisional jurisdiction of this court when there is no misappreciation of law and evidence. Hence, this civil revision is dismissed as such.

H.B.T./263/P Petition dismissed.