Muhammad Jan vs Rustam Khan

Judgment Sheet

IN THE PESHAWAR HIGH COURT

BENCH, D.I.KHAN.

(Judicial Department)

CR No. 270-D/2012 with CM No. 388-

D/2012.

JUDGMENT

Date of hearing. 10.12.2012 Petitioner By ________________________________________ Respondent By ________________________________________ QAISER RASHID KHAN, J. Aggrieved of the judgments and decrees dated 21.3.2012 and 28.5.2011 of the learned Additional District Judge-V D.I.Khan and the learned Civil Judge-IV D.I.Khan whereby the pre- emption suit of the petitioner/ plaintiff was concurrently dismissed, the instant petition has been preferred.

2.Concise facts leading to the instant petition are that the petitioner/ plaintiff, Muhammad Jan, filed a suit for possession through pre-emption in respect of land measuring 12 Marlas situated outside Laghari Gate Sahib Jan Colony D.I.Khan acquired through special power of attorney bearing Wasiqa No. 365 Bahi No.4 Volume No. 222 and registered on 21.3.2005 as detailed in the plaint against the respondent No.1 namely, Rustam Khan on the basis of co-sharership, contiguity,

immunities and appendages to the suit land; that the petitioner/plaintiff got knowledge of the sale transaction on 9.4.2005 at 05:00 pm at his house through Aurangzeb whereafter he immediately declared his intention to pre- empt the suit property and thus performed Talb-e- Muwathibat and afterwards issued notice ‘Talb-e- Ishhad’ to the respondent No.1/ vendee on 23.4.2005 through registered post under A.D cover duly attested by two witnesses namely, Aurangzeb and Muhammad Bilal and on the refusal of the respondent No.1/ vendee to receive the sale consideration and surrender the suit property, therefore, the suit.

3.The respondent No.1/ vendee was summoned who contested the suit by filing written statement and out of the divergent pleadings of the parties, issues were framed and after recording pro and contra evidence, vide judgment and decree dated 28.5.2011, the learned Civil Judge-IV, D.I.Khan dismissed the suit of the petitioner/ plaintiff. Appeal preferred thereagainst before the learned Appellate Court also met the same fate vide judgment and decree dated 21.3.2012 of the learned Additional District Judge-V D.I.Khan, hence this revision petition. Moreover, the petitioner had also filed an application bearing CM No. 264-P/2012 for the grant of permission to adduce additional evidence in respect

of the agreement to sell dated 18.3.2005 executed between respondent No.1/ vendee and respondents No.2 and 3/ vendors and also to record statement of the postman.

Arguments heard and available record perused.

4.As evident from the plaint, the petitioner/ plaintiff filed a suit for possession through pre-emption averring in the plaint that the respondent / defendant No.1 had purchased the suit plot from respondents No.2 and 3 for a sale consideration of Rs. 100000/- but in order to defeat the right of pre-emption of the petitioner/ plaintiff, the same was not transferred through any mutation or registered deed but rather through a special power of attorney bearing Wasiqa No. 365 registered on 21.3.2005. At this point, it would be more apt to revert to section 5 of the NWFP Pre-emption Act 1987 according to which the right of pre-emption shall accrue only in case of sale and then the sale has been defined in section 2 (d) of the Act ibid which means, a permanent transfer of the ownership of an immovable property in exchange for a valuable consideration.

5.In the present matter, the petitioner has made the basis of his pre-emption suit to be the special attorney whereby he alleges the respondent No.1 to have

acquired the suit property from respondents No.2 and 3.

A bare reading of the said attorney (Ex.DW1/1) reveals that the same was executed by respondents No.2 and 3 in favour of the respondent No.1 just to look after the property and as is the routine language of other like nature power of attorneys, to safeguard the interests of respondents No.2 and 3 in respect of the suit property.

However, no inference can be drawn from its contents that the same was given to respondent No.1 for any sale consideration as alleged in the plaint. Wherefrom the petitioner came to know about the sale consideration as Rs. 100000/-, is no less than a wild goose chase.

7.In support of his case, the petitioner/ plaintiff appeared before the learned trial court as PW8 and stated on oath to have been informed by his son Aurangzeb regarding the sale of the suit property for a sum of Rs.100000/- by the respondent No.1 and that is how he declared his intention to pre-empt the same on 9.4.2005 at 05:00 pm at his house and thereafter he went to the Sub-Registrar Office where he got a photocopy of the special power of attorney and then the follow up notice Talb-e-Ishhad to the respondent No.1. In order to throw weight behind the pre-emption claim of the pre- emptor, Aurangzeb, son of the petitioner firstly emerged on the scene as an informer and then turned up before

the learned trial court as PW-5. He rather gave another interesting account of the matter when he alleged to have been informed by none other but the respondent No.1 himself regarding the sale transaction and that too, for a sum of Rs.100000/-. The same sounds comical, to say the least.

8.On the one hand, the petitioner has levelled serious allegations against the respondent No.1/ vendee for having carried out the sale transaction in a clever but surreptitious manner in the garb of a special power of attorney executed in favour of the respondent No.1 by respondents No.2 and 3 so as to defeat his right of pre- emption but then Aurangzeb, the informer presented the respondent No.1 to be a simpleton and gullible enough to disclose before him not only the sale transaction but also the sale consideration as well.

9.Another argument hard pressed by the learned counsel for the petitioner is regarding some arbitration which went on between the petitioner and respondent No.1 but then ended in failure. In this regard the petitioner examined PW-3 namely, Muhammad Iqbal, and PW-6 namely, Ghulam Rasool. From their statements, it can never be presumed that the arbitration pertained to the same very suit plot.

10.The respondent No.3 i.e. the alleged vendor appeared before the learned trial court as DW1 and stated in clear terms that he alongwith his brother are still the owners of the suit plot; that it has not been transferred to the respondent No.1 and moreover, he is only looking after their interests as their special attorney. DW1 being the ‘Sajada Nasheen’ of a ‘Ziarat Gah’ at Attal Sharif was cross-examined at considerable length by the learned counsel for the petitioner but nothing could be extracted from his mouth regarding any sale in favour of the respondent No.1.

11.The respondent No.1 i.e. the alleged vendee appeared before the learned trial court as DW-2 and held on to his stance that the suit plot has not been purchased by him and that he is looking after the interests of the respondents No.2 and 3 as their special attorney.

12.The available record clearly suggests that barring the oral allegations by the petitioner, not even an iota of evidence was brought forth to support his plea regarding any sale transaction between the respondent No.1 and the remaining respondents. Since the sale, as alleged, stands disproved, therefore, further discussion on the alleged performance of Talb-e-Muwathibat and Talb-e- Ishhad becomes a meaningless exercise.

13 As far as the request of the petitioner in CM No.

264-D of 2012 is concerned, the same cannot be considered at this stage.

14.For the reasons stated above, this petition being meritless stands dismissed.

Announced:

JUDGE

*Qaseem*