Sohail Afsar vs Abdul Rehman

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

C.R No: 267-A of 2012

JUDGMENT

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

Appellant(s)/Petitioner (s).................................................

Respondent (s).....................................................................

QALANDAR ALI KHAN:-J: Through

the instant revision petition under Section

115 of Civil Procedure Code, 1908, the

petitioner, Sohail Afsar, has called in

question judgment and decree of learned

District Judge, Abbottabad, dated

03.05.2012, whereby appeal of the

petitioner against the judgment and

decree dated 16.09.2011 of learned Civil

Judge-VII, Abbottabad, was dismissed.

2.The revision petition would reveal that the petitioner had instituted a suit against respondent Abdul Rheman, for possession through pre-emption in respect of the suit land described in the plaint transferred by way of sale Mutation No.804 attested on 25.04.2007 on the ground of his superior right of pre-emption after fulfilling the mandatory requirements of Talbs under the law of pre-emption.

3.The suit was resisted by respondent on several grounds, including the grounds of waiver and non fulfillment of mandatory requirement of Talbs.

4.The trial Court reduced pleadings of the parties to as many as 11 issues and recorded evidence of the parties thereon, whereafter suit of the petitioner/plaintiff was dismissed by the learned trial Court/Civil Judge-VII, Abbottabad, vide judgment dated 16.09.2011. Aggrieved of the judgment of the learned trial Court, the petitioner preferred appeal, which, too

was dismissed by the learned appellate Court/District Judge, Abbottabad, vide impugned judgment dated 03.05.2012.

5.Arguments heard and record perused.

6.The impugned judgments of the learned trial Court as well as appellate Court would show that the

petitioner/plaintiff was non suited and his suit for possession through pre- emption was dismissed, mainly, on the ground of his failure to fulfill the requirement of talbs. The

petitioner/plaintiff claimed that he got information about the impugned sale at 4.00 P.M on 29.05.2007 through his father Khan Afsar in their house situated in Mohallah Charri Upper Malikpura, Abbottabad, and he instantly made Talb-i-muwathibat and thereafter dispatched notice of Talb-i-Ishhad duly attested by his father Khan Afsar and

another witness namely Waseem Sajjad through registered AD. In his written statement, the respondent/defendant disputed fulfillment of the mandatory requirement of ‘Talbs’ by the petitioner/plaintiff and service of notice of Talbs on him in accordance with law of pre-emption.

7.The petitioner/plaintiff failed to produce AD card despite his claim in the plaint with regard to service of notice of Talb-i-Ishhad through registered AD. Azhar Malik, clerk of Kachery Post Office, Abbottabad, only produced receipt of the registered post, while acknowledging the fact that he could neither name sender of the registered post nor could say anything about content of the registered envelop.

All the witnesses from post office department, produced by

petitioner/plaintiff in support of his

case, were unable to depose about delivery of the registered post to the respondent/defendant; and statements of both Abdul Majeed Branch Post Master and Changaiz Khan, during inquiry proceedings, provided by the learned counsel for respondents during the course of arguments, show that the registered post was never delivered to the respondent, rather the same was allegedly handed over to another person, unknown to both of them.

Moreover, the other attesting witness of Talb-i-Ishhad namely Waseem Sajjad stated that the petitioner/plaintiff asked for his becoming an attesting witness on notice of Talb-i-Ishhad on Telephone from Kachery Abbottabad, that he reached Kachehry from his shop at about 10.00/11 hours, while petitioner/plaintiff in his statement before the Court stated that he along

with his father and attesting witness Waseem Sajjad together reached office of the Advocate at 09.00 hours and after drafting notice in 1⁄2 hours they left the office of the Advocate, whereafter Waseem Sajjad went to his shop. The father of the petitioner/plaintiff, another attesting witness of Talb-i-Ishhad and also informer and witness of Talb-i- muwathibat (PW.6), on the other hand, stated that he and his son took PW.

Waseem from his shop and went to the office of Sardar Waqas Ashraf for drafting the notice, whereafter the petitioner/plaintiff and Waseem Sajjad left the office and he and the petitioner/plaintiff went to Kachehry Post office wherefrom dispatched the notice through registered post. The inconsistencies/contradictions in the statements of petitioner/plaintiff and attesting witnesses of ‘Talbs’ would

show that at least one of them is not telling the truth, whereas requirement of Section 13 of NWFP Pre-emption Act, 1987, is that both the witnesses of Talb-i-Ishhad should be truthful witnesses.

8.In any case, the petitioner/plaintiff could neither produce AD card owing delivery of notice of Talb-i-Ishhad to the respondent/defendant nor could produce truthful witnesses of notice of Talb-i-Ishhad, together with proof of delivery of notice of Talb-i-Ishhad to the respondent/defendant. Therefore, both the learned trial Court as well as Appellate Court arrived at concurrent findings with regard to failure on the part of the petitioner/plaintiff to fulfill the requirements of ‘Talbs’ prescribed in the law of Pre- emption as a mandatory requirement

for a suit for possession through pre- emption.

9.Needless to say that section 13 of NWFP Pre-emption Act 1987 has made it incumbent to send notice of Talb-i- Ishhad under registered cover acknowledgment due to the vendee, therefore, non-production of AD card and non-examination of postman, deposing about delivery of the notice to the vendee, would render notice of Talb-i-Ishhad defective, and disentitle a plaintiff to decree for possession through pre-emption. (PLD 2011 Peshawar 116, PLD 2007 Peshawar 93, 2007 SCMR 1105,

2007 SCMR 1117, 2013 YLR 1638

(Peshawar).

10.Consequently, the concurrent findings of the Courts below are not open to exception in the revisional jurisdiction of this Court, hence the revision petition is dismissed with costs.

Announced:

JUDGE