Syed Munawar Hussain Shah vs Sahib Khan

2013 C L C 1488

[Peshawar]

Before Qaiser Rashid Khan, J

Syed MUNAWAR HUSSAIN SHAH and another----Petitioners

Versus

SAHIB KHAN----Respondent

Civil Revision Petition No.210 of 2011, decided on 19th April, 2013.

(a)Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-e-Muwathibat, performance of---Scope---Plaintiff had failed to mention the exact time of performance of Talb-e-Muwathibat as he only mentioned "Dopehr"---Plaintiff had failed to perform the talb in accordance with law---Talb-e-Muwathibat without mentioning a specific time would be over-stretching such talb and would amount to striking at the very roots of the concept of jumping demand whose essence and beauty is its promptness and immediateness---Talb-e-Muwathibat if performed on the basis of vela or time period, duration would result into a free for all situations for prospective pre-emptors and the oft-repeated phrase of pre-emption being a feeble right would be rendered topsy-turvy with the vendee left at the receiving end---Presumption would be that Talb-e-Muwathibat without specifying time was not performed by the plaintiff---Suit for possession through pre-emption of plaintiff was dismissed.

(b)Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-e-Ishhad---Proof---Plaintiff claimed that he performed Talb-e-Ishhad in the presence of witnesses by sending a notice under registered acknowledgment-due cover to the defendant/appellant---Plaintiff failed to mention the names of the witnesses in the plaint in whose presence he allegedly performed Talb-e-Ishhad---Date of notice of Talb-e-Ishhad had also not been mentioned in the plaint---Talb-e-Ishhad was not performed in accordance with law--- Appellate court seriously erred in decreeing the suit of the plaintiff---Judgment and decree was not sustainable under the law.

Zafar Iqbal Awan for Petitioner.

Muhammad Abdullah Baloch for Respondent.

Date of hearing: 19th April, 2013.

JUDGMENT

QAISER RASHID KHAN, J.---The petitioner namely, Syed Munawar Hussain Shah, through the instant revision petition has called in question the judgment and decree dated 28-3- 2011 of the learned Additional District Judge-II, D.I. Khan, whereby he set aside the judgment and decree of the learned trial Court dated 13-6-2009 and decreed the suit of the respondent Sahib Khan.

2.Relevant facts of the case leading to the filing of the instant petition are that Sahib Khan, respondent/plaintiff, filed a suit for possession through pre-emption against the petitioner/defendant in respect of land measuring 16 kanals, 8 marlas bearing Khasra No.7089/1652 situated at Mauza Kulachi Sharqi, Tehsil Kulachi, District D.I. Khan alleging therein that the petitioner/defendant had purchased the suit property through Mutation No.5005 dated 18-8-2003 for a sum of Rs.13,100/-, but in order to defeat his pre-emptive rights, an inflated and exaggerated amount of Rs.23,100/- was mentioned in the suit mutation. He claimed superior right of pre-emption on the basis of contiguity, co-sharership, immunities and appendages to the suit-land.

3.The learned trial Court after recording pro and contra evidence of the parties, scanning the record and hearing arguments of learned counsel for the parties, dismissed the suit of the respondent/plaintiff, but on appeal preferred by him, the same was decreed in his favour, hence this revision petition by the petitioner/defendant.

4.Learned counsel for the petitioner argued that the impugned findings of the learned appellate court are based on misreading and non-reading of evidence; that the respondent/plaintiff had failed to perform the talbs in accordance with law which was duly appreciated by the learned trial Court while dismissing his suit but the same were wrongly reversed by the learned appellate court; that the respondent/plaintiff pre-empted two sale transactions through one and the same alleged Talb-e-Muwathibat and thereby failed to perform separate jumping demands of the separate sale transactions.

5.Learned counsel for the respondent/plaintiff defended the impugned judgment and decree of the learned appellate court on almost the same grounds as enumerated therein.

6.I have carefully gone through the record of the case and anxiously considered the

arguments of the learned counsel for the parties.

7.Before adverting to the other aspects of the case, at the very outset, the attention of the court was attracted towards the very plaint where in para-6, the respondent/plaintiff alleged to have come to know about the sale transaction through his son Salahuddin at `Dopehr' at his baithak situated at mohallah Ranazai and he accordingly performed Talb-e-Muwathibat, whereafter he performed Talb-e-Ishhad in the presence of witnesses by sending a notice under registered AD cover to the petitioner/defendant. The respondent/plaintiff failed to mention the exact time when he allegedly performed Talb-e-Muwathibat on getting information through his son and only mentioned `Dopehr'. It goes without saying that `Dopehr' does not signify a specific and particular time but rather a time period which may spread over hours. In the instant case, it was the month of August during which `Dopehr' could spread over for over four hours. Similarly, there are other time periods of the day like 'subh vela' which in certain months of the Christian year like June, July and August could spread for as long durations as 7 to 8 hours. Same is the case of `Asr vela', `maghrib vela' and `Isha vela' (khuftan vela)'. Talb-e-Muwathibat in such-like cases without mentioning a specific time would be over stretching such talb and would amount to striking at the very roots of the concept of jumping demand whose essence and beauty is its promptness and immediateness. Talb-e-Muwathibat if performed on the basis of 'vela' or time period/ duration would result into a free for all situation for prospective pre- emptors and the oft-repeated phrase of pre-emption being a feeble right would be rendered topsy- turvy with the vendee left at the receiving end. Such being the case, the time being unspecific, it can be safely presumed that Talb-e-Muwathibat was not performed by the respondent/plaintiff.

8.Similarly, the respondent/plaintiff failed to mention the names of the witnesses in the plaint in whose presence he allegedly performed Talb-e-Ishhad and moreover, the date of notice Talb-e-Ishhad has not been mentioned in the plaint. In such eventuality when both the talbs were not performed in accordance with law, the learned appellate court seriously erred in decreeing the suit of the respondent/plaintiff and thus the impugned judgment and decree is not sustainable under the law.

9.For the reasons stated above, this revision petition is accepted, the impugned judgment and decree dated 28-3-2011 of the learned appellate court is set aside and suit of the respondent/plaintiff is hereby dismissed with no order as to costs.

JJK/268/P Petition accepted.