Muhammad Waris vs Malik Abdul Ghaffar

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

C.R No: 248 of 2009

JUDGMENT

Date of hearing..................14.04.2016.................................

Petitioner (s)...(Muhammad Waris) by Haji Ghulam Basit, Advocate...............................

Respondent (s)...(Malik Abdul Ghaffar) by Mr. Muhammad Saleem Awan, Advocate...

QALANDAR ALI KHAN:-J: Since

identical questions have been raised by the same petitioners in C.R No.249/2009 as well, this single order shall also dispose of the said connected revision petition. Both revision petitions are directed against the judgments and decrees of the learned Additional District Judge-IV, Haripur, in appeals No.74/13 and 75/13 filed on 23.07.2007 and decided on 29.05.2009, whereby, the appeals of the respondent were accepted, judgments and decrees of

the learned trial Court in Suits No.605/1 and 606/1 decided on 19.07.2007 set aside and suits of the respondent for possession through preemption were decreed and cross objections filed by the petitioners were dismissed.

2.The respondent, Malik Abdul Ghaffar, had lodged two suits for possession through preemption against the petitioners on 01.09.2008 in respect of one Kanal each in both the suits out of two kanal land situated in village Dehri Sikandarpur, Tehsil and District Haripur, transferred, respectively, through sale in favour of the vendees/petitioners vide registered sale deeds No.588 attested on 18.04.1998 and 576 attested on 17.04.1998 by Muhammad Ibrahim vendor. In both the suits, the respondent/preemptor/plaintiff alleged that he got knowledge of the sale transaction through his son Malik Sarfaraz in his house at 4.P.M on 23.04.1998 and made Talb-i-Muwathibat there and then in

the presence of his son Malik Sarfaraz and then dispatched notice of Talb-i-Ishhad along with registered AD card in the presence of attesting witnesses on 02.05.1998, which were received by the defendants/petitioners. The respondent/ preemptor claimed his superior right of preemption on the basis of contiguity and claimed that the sale price was not fixed in good faith.

3.The defendants/petitioners resisted the suits on several grounds in their written statements in both the suits, including non-fulfillment of the mandatory requirements of talbs by the respondent/ plaintiff and waiver and estoppel on his part because of offer made to him by the vendor prior to the sale transaction. It was also claimed by the defendants/ petitioners that the sale transaction initially took place vide agreement to sell dated 04.02.1998 and that the entire sale consideration was paid to the vendor.

4.The pleading of the parties were reduced to as many as 9 issues in both the suits, and after recording evidence of both the parties and hearing arguments of their counsel, the suits were dismissed by the learned trial Court/Civil Judge-IV, Haripur, vide separate judgments dated

31.05.2006; but the cases were remanded to the trial Court by the learned appellate Court/ADJ-III, Haripur vide judgments dated 17.04.2007, to place on record the relevant notification whereby it could be clarified as to whether the civil Courts during the summer vacations were authorized to receive plaints/suits. The cases were remanded with the aforesaid direction because the suits were lodged on the first day of re-opening of Courts after summer vacation i.e. 01.09.1998.

However, the suits were once again dismissed by the learned trial Court/Civil Judge-I Haripur on 19.07.2007. The respondent preferred appeals, which were

accepted through consolidated judgments dated 29.05.2009; hence these revision petitions.

5.Arguments of Haji Ghulam Basit, Advocate, counsel for the petitioners, and Mr. Muhammad Salim Awan, Advocate, counsel for the respondent heard, and record perused.

6.At the outset, the learned counsel for the petitioners stated at the bar that he would not press the revision petitions in respect of market value, limitation and superior right of preemption, and would confine his submissions only to the extent of requirements of talbs under Section 13 of the KPK Preemption Act 1987.

(hereinafter referred to as the preemption Act.) As such, the moot point, during arguments, was the mandatory requirements of talbs, namely, Talb-i-Muwathibat and talb-i-

Ishhad under Section 13 of the preemption Act.

7.Needless to say that under Section 13 of the Preemption Act, the right of preemption extinguished unless a preemptor makes demands of

preemption in the following order, namely:

(a)Talb-i-Muwathibat

(b)Talb-i-Ishhad, and

(c)Takb-i-khusumat.

The respondent/preemptor, in para-II of his plaint, averred that he got knowledge of the sale transaction in his house situated in village Dehri Sikandarpur from his son Malik Sarfaraz at 4.00 P.M on 23.04.1998 and he immediately made talb-i-muwathibat and in pursuance thereof dispatched notice of Talb-i-Ishhad in the presence of witnesses through registered AD card

on 2.05.1998, which was received by the defendants/petitioners.

8.It may be pointed out that in both the cases, there were two separate sale transactions vide registered sale deed No.588 attested on 18.04.1998 and registered sale deed No.576 attested on 17.04.1998, but plaints in both the suits would show one and the same Talb-i-Muwathibat at 4.00 P.M on 23.4.1998 when the respondent/ preemptor allegedly got information of the sale from his son. Under the law, the preemptor/plaintiff was required to make such talbs in respect of each sale mutation/transaction, but nothing either on the file or in the evidence of preemptor was available to show that two separate demands of talb-i- muwathibat were made in respect of each of the two separate sale transactions, therefore, the respondent/

preemptor failed to prove performance of such talb in accordance with law, {2011 CLC 899(Peshawar)(a)}.

9.The respondent/preemptor alleged receiving information in his house from his son at 4.00 P.M on 23.04.1998; but his son Malik Sarfaraz stated in his statement recorded in the Court as PW.5 that:-

“On 23/04/1998 when I came out (of) my house and on 4.00 P.M I informed my father Malik Abdul Ghaffar on 23.04.1998 at our house situated within the limits of Dehri Sikandarpur Haripur. That defendants have purchased the suit land. On hearing this my father immediately declare(d) his intention to preempt the suit transaction.”

10.The respondent/preemptor (PW-4), on the other hand, deposed in his statement in the Court that:- “I was present at my house on 23/04/1998 at 4.00 P.M that my

son Malik Sarfaraz informed me about the suit transaction. I immediately in presence of Malik Sarfaraz declare(d) my intention to preempt the suit transaction”.

11.There were, as such, two inconsistent statements of the preemptor/respondent and the informer, son of the

respondent/preemptor, with regard to the place where the respondent/preemptor came to know of the sale. Apart from this discrepancy, the informer, being son of the preemptor, could not be treated as an independent and impartial witness as to making of talb-i-muwathibat. {2014 CLC 864 (Peshawar) and 2014 CLJ 541}.

12.The sale transaction was, admittedly, not completed in the presence of the informer son of the respondent/preemptor, and according to the evidence adduced by the respondent/preemptor, Malik Sarfaraz learnt about the suit transaction from the general people, but Malik Sarfaraz was unable to show the name of the person or

those persons who informed him about the sale transaction, which took place in respect of the property situated in front of the house of respondent/preemptor, and which, as such, assumed significance in view of evidence of vendees/defendants to the effect that after attestation of registered deed on 18.04.1998 they ploughed the land with tractor in the presence of residents of the Mohallah, plaintiff and his son Malik Sarfaraz. These facts, obviously, raise serious question about the credibility of the preemptor and informer, father and son inter-se, beside casting doubt on the fulfillment of the requirement of talb-i-muwathibat.

12.In regard to the notice of talb-i- ishhad dated 02.05.1998, it may be pointed out that not only doubt was created about the truthfulness of Malik Sarfaraz, one of the attesting witnesses of the notice and son of the

respondent/preemptor but the evidence

available on record would also show signature of one Qaiser Zaman on the AD card, who is neither one of the vendees nor was produced as a witness by the respondent/preemptor to prove service of notice of Talb-i-Ishhad on the vendees.

The postman who delivered the notice of Talb-i-Ishhad, though still in service, was not produced by the respondent/ preemptor to prove service of the notice in accordance with the provision of Section 13 of the Preemption Act. The vendees/defendants denied service of notice of Talb-i-Ishhad on them, and the respondent/preemptor failed to prove service of the notice in the mode and manner explained above. {2015 SCMR

311, 2014 UC 201, 2011 CLC 899

(Peshawar)(b) and judgment of this Court dated 16.02.2015 in C.R No.114-

A/2008.}

13.In view of failure on the part of the respondent/preemptor to prove the

mandatory requirements of talb-i- muwathibat and talb-i-ishaad, his right of preemption stood extinguished under Section 13 of the Preemption Act, and his suits were liable to dismissal, which were, indeed, rightly dismissed by the learned trial Court/Civil Judge-I Class, Haripur, vide judgments dated 19.07.2007 but wrongly decreed by the learned appellate Court/ADJ-IV, Haripur, vide consolidated judgments dated 29.05.2009. Therefore, on the acceptance of these revisions petitions, the judgments and decrees of the learned appellate Court dated 29.05.2009 are set aside, and that of learned trial Court/Civil Judge-I Class, Haripur, dated 19.07.2007 restored, with the result, both the suits for possession through preemption of the respondent/ plaintiff stand dismissed.

Announced:

JUDGE