Amir Muhammad Vs Waliullah Khayali

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Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

C.R.No. 219-A12018.

JUDGMENT

Date of hearing 05.03.2020

Petitioner (Amir Mr. Tahir Faraz Muhammad) by: Abbasi, Advocate.

Re spondent (VYal iul I ah Mr. Muhammad llyas Khayali) by. Khan, Advocate.

1s AHMAD AL Jt- The petitioner through the instant .Sl' J[$ revision petition has called in question the judgment .rGo and decree of Additional District Judge-II, Battagram, dated 21.04.2018, in Civil Appeal No.

23l13 through which the leamed appellate Court set aside the judgment and decree dared 28.03.2017 passed by leamed Civil Judge-I, Battagram and decreed the suit ofthe respondent/plaintiff.

2.Brief and essential facts leading to the institution of the present petition are that the petitioner Amir Muhammad had purchased land measuring 18% Marlas, comprised in Khasra No' 315 situated at Matza Jesole, District Battagram

through mutation No. 642 dated 18.12.2013. The respondent, Waliullah Khayali instituted suit No.

103/1 for pre-emption against the said sale on 11.04.2014. It was averred in the plaint that he came to know about the disputed sale on 02.02.2014 at 05:00 PM in his house in presence of Ehsan Ullah Hashmi and Muhammad Shahid through Akhtar Hayat S/o Mumtaz Khan and as such in the said Majlis, he made a jumping demand showing his intention that he will exercise his right of pre- emption against the disputed transaction. Thereafter notice ofTalab-i-Ishhad was issued to the defendant on his address along with Registered AD. He claims his superior right of pre-emption being Shafi Sharik,, Shafi Khalit and Shafi Jar.

J On being summoned, the defendant

Amir Muhammad filed his written statement, { thereby controverting the contents of the plaint. In suppoft of his claim, the plaintiff produced PW-l Zia-ur-Rehman Patwari Halqa who appeared and produced Fard Jamabandi for the year 2011 - 1 2 as Ex PW-1/1, three years and five years average as Ex PW- 1/2 to 1/6, valuation table as Ex PW- 1/7 and Part

Patwar of mutation No. 642 as E xPW-1/8. Ehsan- ur-Rehman Branch Postmaster appeared as PW-2 who produced register Booking General as Ex PW- 211 and copy of receiptExPW-212. Abdul Qayyum Record Clerk of Post Office appeared as PW-3 and produced the counterfoil of registry No. 197 as Ex PW-3/1 through which the notice was booked.

Anayat Ullah Khan, Advocate, Notary Public appeared as PW-4 and testified in respect of attestation of notice Talab-i-Ishhad Ex PW-4/1. He also produced and exhibited the relevant page of his register as Ex PW-4/2. The scribe of notice Talab-i- Ishhad namely Aman Ullah Petition Writer appeared as PW-5 and exhibited copy of his relevant register as Ex PW-5/1. The pre-emptor Waliullah appeared as PW-6, who supported the contents of the plaint.

M Ehsan Ullah Hashmi appeared as PW-7 who is the marginal witness of the notice Talb-i-Ishhad. The other marginal witness of the notice Talb-i-Ishhad as well as informer namely Akhtar Hayat appeared as PW-8. Against that, Ameer Muhammad defendant appeared as his own witness as DW-l and produced Badshah Zarcen as defense witness.

4 The leamed trial Couft, vide judgment and decree dated 28.03.2017 dismissed the suit by holding that the plaintiffhad failed to prove his cause of action and Talabs in accordance with law. Aggrieved of the judgment and decree of the trial Cour1, appeal was filed. The leamed appellate Court accepted the appeal videjudgment and decree dated 21.04.2018, set aside the judgment and decree passed by the learned trial court and decreed the suit, hence the instant Civil Revision.

5.Arguments heard and record perused.

6.In terms of Section 13 of the Pre-emption Act, the performance of Talbs is a condition precedent as it stipulates that the "right of pre-emption ot' a person shall be extinguished" unless the three Talbs # are performed. The said provision read as follows:-- "13. Demand of Pre-em otion.--- (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--

(a)' Talb-i- Muwathibat' ;

(b)'Talb-i-lshhad' ; and

(c)'Tal b-e-Khus humat'.

,'uoltdrua-atd lo tt 131"t s1q ac'totua ol uoltctpst.tn[ ruatadruoc lo YnoS aql ul pwnsn\x-rqpJ alDw lloqs ar4'$) uopcasqns rapun pDqqsffqql puD (d uoq)asqns Dpun pEqw^\nq -fqpJ lo stuawannba't aLil pag[s1los soq "toldwa-atd o anqrtr1 ft) 'sassaulttut

p!4ln.tl ou1 lo acuasa'rd aq! ur pDqqsl -fqpJ ayoru tow aq 'ac14ou pa.ra1nBat a43 o1 ,totdtua-a"td ary ,rol alqrssod

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tou s! t! sa1t111col acg[o Tsod lo t1co1 ol Suruo araq^L sDatD m pqt papwo,td luot4dwa-a"tdlo lqBut aqt aecraxa ol uouualm stq Sutwtg[uoc 'aapua^ aqt ot 'anp gawaBpaluouqco ta^oc pa,olsr8at .Dpun 'sassawM4 1ntq7n4 o/^l tq paJSailD 8utqttu m acqou o Surpuas Kq pDqqsl-t -q1o1 at1oru aBpaluoutlto awp aql wo.rt $pat o$l uDq! "DlDl lou tnq alqtssod so ,talloataql uoos sD yoqs aq '(7) uoucasqns Dpun loqlqlo A^nIAt -!-qlDJ apDa sDLl ,totdwa-a.td o a.tat1r11 $) 'pq14pilnw -fqpJ iltDut lttlt.,ls all 'actnos iuo 7Snotqt ntd,tta-atd olo aBpaf oml aql ulqlt saao) aps lo lcol aql uatful C)

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7 To prove Talab-i-Ishhad, the plaintiff relied upon the statement of PW-2 Ehsan-ur-Rehman Branch Postmaster, and Abdul Qayyum Record Clerk Post Office. Both these witnesses deposed in respect of booking of notice. PW-2, during his cross examination admitted that he delivered the registered post to one Bacha Zareen who received the same.

The said portion of his cross-examination is reproduced:-

LJ r.,, - tj' 6, /,j : 4l tJ ra, L & d.tb, L i()-, - /" t .,

tJ z ! 6 o-ut 3 o i .t-, i L i 7r !(, i ;t -& 6 I r' t t -G(, ? L,l, d i 8- /s r' ,j /l r :Q-D at1z.-i) '-.-6s! ",0/ 'a''/ JUrilf S ltt-

8.The copy of registered AD, Ex PW-212 available on file, bears the signature of defendant, despite the fact that PW-2 delivered the registered post to Bacha Zateen. Thus in the given circumstances, PW-2 cannot be termed to be a truthful witness. The defendant while appearing as DW-1, was confronted with his signature on AD Card during his cross examination and he deposed:-

17 : a 3 $ Lsn -(y{' t?'.1),( to / pv L? : 7 t :,,-i t t$ Ot 7 lnl i ;r -U-a t<-r 7 t;7 u / ) 9 In the case of "Munawar Hussain Vs, Afaq Ahmed and others (2013 SCMR 721)" ithas been held by the august apex Court that:- "So .fo, as Talb-e-Ishhad ,s concerned. admittedly the service on one of the two petitioners- defendants/vendees namely Muhammad Alcram was not personally effected and according to learned counsel for the respondent, it was effected on his brother and co-vendee Munawar Hussain appellant, The afore- referred service is not a service in the eyes of law. It is not the case of respondent/plaintiff either that sertice of notice of Talb-e-Ishhad on the said vendee was made through registered Post acknowledgement due. The contention that serttice on the co- vendee should be presumed as service in law is not backed bY anY provision of law and therefore, is not tenable. "

In the instant case, however, the service was effected on a person, who is not even a co-vendee, while personal service of vendee/defendant is not proved.

The defendant, while appearing as DW-1, denied receipt of any notice Talab-i-Ishhad In the case of "Muhummad Bashir Vs. Abbasi Ali Shah (2007 SCMR 1105)" it was held that:-

"Admittedly there wls no personal notice, and mere endorsement of "refusal" would not constitute service, since the petitioner-defendant had denied service not only in written statement but also on oath while

appearing in Court. The statement made by him in Court

has been found by us to be reliable. In such circumstances, the presumption if any in terms of Article 129 of the Qanun-e- Shahadat Order stood rebutted and it was for the respondent- plaintiff to prove service by producing the postman who allegedly made the endorsement which has not been done. "

10.It is by now well settled that 'Talabs' are sine-qua-non for maintaining a suit for pre-

emption "Bashir Ahmed Vs. Ghulam Rasool (2011 SCMR 762), Allah Ditta through L.Rs Vs.

Muhammad Anwar (2013 SCMR 866),

Muhammud Ali Vs, Mst. Humera Fatima (2013 SCMR 178) and Muhammad Anwar Vs. Safeer Ahmed (2017 SCMR404)".

11.Under Section 3 of the Transfer of

Property Act, 1882, 'attested', in relation to an instrumenf "means and shall be deemed always to haae meant, attested by two or more witnesses each of whom has seen the executant sign or affx his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has receiaed ftom tfu executant a personal acknoutledgment or his signature or mark, or of the signature of such other person, and each of $/ whom has signed the instrument in the presence of the executant" .In the instant case, the witnesses of Talab- i-Ishhad are PW-7 and PW-S who though claimed that they signed the notice Talab-i-Ishhad, however, none of them deposed that the other attesting witness of the notice as well as the plaintiff signed the notice in therr presence, as such they do not fulfill the requirement of

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an attesting witness. Reference can be made to the case of "Nazir Ahmed Vs. M. Muzaffar Hussain (200g SCMR 1639)". Similarly, the scriber of the notice Talab-i-Ishhad namely Aman Ullah appeared as pW- 5 and produced the relevant page of his register as Ex PW-5/1, however, during cross examination he admitted that neither he mentioned the details of notioe in his register nor the signatures of witnesses were obtained upon his regisrer.

12.Another important aspect of the case is that at the trme of Talab-i-Ishhad, Talab-i-Muwathibat was not repeated, either by the plaintiff or by his witnesses. They stated that the petition writer scribed the notice which was signed by them and thereafter it was dispatched to the defendant. It is by now well settled that merely signing and sending of a notice would not fulfil the requirements of Section 13 of the Preemption Act. In the case of "Muhummad Zahid Vs. Dr. Muhummad Ali (NLR 2015 AC 584)" the apex Court held that:-

"The respondent stated in his evidence recorded in the Court that he signed and sent notice to the vendee but he did not state

qL|rft acuDp.tocco ut paqsqqDlsa uaaq a^Dq ol plaq aq louuD) asDr aLflto sazuolswn).tD aqt u! pDqqsJ -!-qDpJ lDtfi ploq 01 uollalsaq ou a^Dq 'atola,raql 'all 'acuD$qns fioqql lou 'snql st 'pv all lo g 7 uo4cas lo uotstt o,td aqt qtru acuolldwoc a^!ruD$qns D aq ot pP\ aq louuDc ac\ou lo Sulpuas puo SuruBts aow pqt yolladdo aqt rcl 35y pautoal lo tuawnS.uc aqJ 'lcV aqt to €t uou)as to sutal ut aoqou aq! pa$alru .tou pau8rc 'taqlou aLl pqt sA oqs osp stqJ qs173ug u! s! uoa.Dqt punot a.mlou8ts aqt tnq np.tn u! acqou a4t pauBts aq pqt papts aq uaqm papuodsat aqt uo alqq aqt pautry raq! 'pailDc os'sassau444. 3u4sa1p aqt lo auo 'uouuatut 4cns lo uotqowtEfuoc Sutp.nBa.t Surqk(uo papts tou ptp oo! 'trno) aqt w pauruDxa sassaulL aq1 'acuouto Sutpuas puo SutuBts atau tq paqsllqD$a uaaq a^Dq ol pPq aq PuuD) uottdwa-atd to 1t131"t D asD.Dxa ol uouualul lo uotlowtg[uoc st '1co! ut qaqu poqqsffqDpl .uottdwa-a,td to Tq8pt stq aso.taxa ol uottuaql nq pawt{uoc all wW a.taqutuo

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the requirements of section 13 of the Act."

13.Leamed appellate court failed to appreciate the evidence in its true perspective and thus erroneously passed impugned judgment and decree which is not sustainable in the eve of law.

Resultantly, while accepting the present petition the findings of the appellate Court daled21.04.2018 are hereby set aside and the judgment and decree passed by the leamed trial court dated 28.03.2017 are restored.

Announced.

Dt.0s..03.2020 Tufoil. /

JUDGE