Muhammad Ishaq Vs Shahibzada

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department) CR No.376-P of 2015 Muhammad Ishaq Versus Sahib Zada and 9 others Present:

Mr. Jawad Khan, Advocate, for the petitioners Mr. Jehanzeb Khalil, Advocate, for the respondents Date of hearing 08/05/2020

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: -Through

this civil revision filed under section 115 of the Code of Civil Procedure, 1908, the petitioner has challenged the judgement and decree of learned District Judge, Peshawar, dated 26th February 2015, whereby the Appeal filed by him was dismissed, consequently, the judgment and decree of the learned Civil Judge-1, Peshawar, dated 22nd of November 2014, was upheld.

2.Facts leading to the institution of the instant petition are that the respondents have purchased the property from Khasra Number 2440/4266, 4239 / 4265-4251, 2439/4258 to 4256, 3617, 3618, 3614, 3616, 3615, 3621, measuring 44

Kanals 5 Marlas, situated in the estate of Sure Zai Payan, Tehsil and District Peshawar, through Mutation No 13467 dated 06-07-2007, for sale consideration of rupees 9, 80,000/-. It was alleged that the plaintiff was informed by Jahan Zaib Gul son of Sarteef Khan, resident of Garhi Ghulam Shah Banda Kichori on 28/07/2007, Friday, at about 7:00 p.m. when he was sitting in his house, situated at Banda Kichori, Peshawar, accompanied by Muhammad Hamayoon Khan and Shakeel Ahmad Khan both sons of Sarteef Khan, he there and then announced his intention to pre-empt the sale in question. He also got scribed Notices of Talb-i- ishhad, duly signed by marginal witnesses and sent these notices to respondents through registered post, under the cover of acknowledgement due on 30-07- 2007. The petitioner claimed superior right of pre- emption as co-sharer, contiguous owner and having got right of appendages, fulfilled the requirements of Talabs. According to him, he is entitled for recovery of possession through pre-emption, against the sale consideration of Rs 9, 80,000/-.

3.The suit was contested by the

respondents/ vendees on various legal and factual objections as taken in written statement. After recording of pro and contra evidence, the petitioners

were non-suited by the learned trial court for non-fulfillment of the requisite Talabs, against which the appeal was filed, however the same met with the same fate, hence this revision.

4.Learned counsel for the petitioner

contended that the petitioner has proved his case in accordance with the requirements of law of Pre-emption but both the learned courts below have failed to appreciate the evidence in its true perspective. He went on to say that non production of Postman is not fatal to the petitioner’s case and relied upon the case law reported as 2015 MLD 18, 2015 YLR 26, PLD 2003 Peshawar 179. Next, he contended that the statement of Shakeel with reference to “weather”, when Talb-i-muwathibat was made, it was slip of tongue, which being minor contradiction would not be fatal for the petitioner’s case as per the principle laid down by the apex court in Allah Bakhas and another versus Falak Sher

(2004 SCMR 1580).

5.Conversely, learned counsel for the respondents vehemently opposed the contentions of the learned counsel for petitioner and argued that not only the petition has not been documented properly, but the petitioner has also not proved the Talb-i- muwathibat as the testimony of the witnesses are not

in line with each other. Insofar as the talb-i-ishhad is concerned, neither the scribe nor Postman concerned was produced and, similarly, notices of talb-i-ishhad, receipts and acknowledgement due cards were not appended with the petition to prove the service of Notices of Talb-i-ishhad, which was one of the requirements of law of Pre-emption. He placed reliance on 2004 YLR 115, 2016 YLR 2047, 2015

SCMR 311, PLJ 2005 SC 1136, 2016 CLC

1651,2015 YLR 112, 2017CLC Note 110, 2014 CLC 744, PLD 2011 Peshawar 116, 2011 SCMR

762, 2007 SCMR 1105, 2005 SCMR 1458, 2005

SCMR 1231, 2017 CLC 923.

6.I have heard learned counsel for the parties and with their valuable assistance perused the record.

7.It was alleged in the plaint that on 20-07-2007, when the petitioner was sitting with his brothers Muhammad Hamayun and Shakeel, in the meantime, at about 07.00 p.m, he was informed by one Jehan Zeb Gul about the disputed sale and he made talb-i-muwathibat there and then. Statement of Shakeel Ahmad was recorded as PW-04, who in his cross examination deposed that it was winter season when talb-i-muwathibat was made by the petitioner, whereas this fact was negated by the petitioner,

whose statement was recorded as PW-03, as he in his cross examination deposed that it was summer when talb-i-muwathibat was made and such inconsistency in the statements can, by no stretch of imagination, be termed as minor contradiction, therefore, the petitioner has not been able to prove the talb-i- muwathibat. Though, the petitioner has not placed on file any revenue paper of the disputed property in order to prove his superior right as against respondents/ vendees, however, the findings on issue No 4 in the judgment of the learned trial court reveals that both the petitioner and respondents have got equal rights in the suit property and the said findings were not challenged by either of them as such both have accepted the respective rights of each other. The astonishing aspect of the case is that the respondents are eight in number, who have purchased the property and it was alleged that they were not served with the notices of talb-i-ishhad but neither copies of the receipts nor the AD cards were placed on file.

Similarly, photo copies of notices were even not appended with the petition, which was one of the requirements of first proviso to section 115 of CPC, which reads as; “Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnishes the copies of

the pleadings, documents and order of subordinates court, and the High Court shall, except for the reason to be recorded, dispose of such application without calling for the record of the subordinate court”. The record indicates that the suit was instituted on 02-08-2007 against the sale which culminated through attestation of mutation No 13467 dated 06-07-2007, but the petitioner never intended to produce Postman concerned in order to prove the service of notices of Talb-i-ishhad upon the vendees.

Record is also silent about the acknowledgment due cards as nothing to this effect was said nor placed on filed. Besides the above, scribe of the alleged notices was also not produced. it is also pertinent to mention that only one Photostat of Notice of Talb-i-ishhad in the name of respondent No 3 Anwar Khan was annexed with this revision petition, which reveals on its second page the “original date as 30-07-2007” which creates further doubt that if it is the original one, then its photo copy might have been posted/ dispatched. It is by now settled law that mere sending of notice of talb-i-ishhad is not sufficient and the vendees must have been apprised about the intention of pre-emptor as the apex court in case titled Muhammad Bashir Versus Abbas Ali Shah

(2007SCMR1105) has held that ; “The requirement

of, "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgement due" redundant. The service of the addressee, as prescribed in law, therefore, is imperative. If the acknowledgement card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah, b. v. Election Officer (1980) 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it".

8.Furthermore, the petitioner has not produced postman, especially, when the vendees have categorically denied the receipt of notices of Talb-i-ishhad. In addition to the above, PW Shakeel Ahmad has deposed that they came to the Court premises on 21-07-2007, whereas the petitioner’s

stance was that it was on 30-07-2007. PW-04, has further deposed that he had signed only one notice, which was also signed by Shoukat, Advocate, however, there is no such notice signed by the Shoukat, Advocate. There were total eight vendees and if PW-04 signed only one notice then the entire story of talb-i-ishhad would collapse. When the witnesses are not truthful then no weight could be given to their statement. Reliance is placed on the case law as reported as 2011 SCMR 1545 titled GHAFOOR KHAN (deceased) through LRs.

Versus ISRAR AHMED wherein it was held that;

“Normally, in every legal proceeding, every witness speaking in support of the party needs to be truthful to place implicit reliance on his testimony. In pre-emption case, however, much stress has been laid on truthfulness of the witnesses of Talb-i-Ishhad.

Reference is made to the provision of subsection (3) of section 13 of Act ibid reproduced hereinabove.

Ongoing through the conflicting statements of pre- emptor and his witness reproduced hereinabove; it becomes hard to consider them truthful to place reliance on their testimony in regard to making of Talb-i-Ishhad.” In a like manner the petitioner opted not to produce postman which was one of the requirements of law of pre-emption as enunciated by

the Honorable Supreme Court in case titled ALLAH DITTA through L.Rs. and others Versus

MUHAMMAD ANAR2013 SCMR 866 that; “As

regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v.

Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent- plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i- Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman”.

9.As both the learned courts below have properly evaluated and appreciated the evidence produced by the respective parties and applied the law in its true perspective, thus, the learned counsel representing the petitioner could not point out any

misreading, non-reading of evidence, illegality or jurisdictional infirmity in the findings of learned courts below, in absence of which this court can not upset the concurrent findings while exercising the power under section 115 of CPC (1908), as held by the Supreme Court in case reported as 2007 SCMR 1076 that; “The learned High Court has very limited jurisdiction to meddle with the concurrent findings of the Courts below while exercising power under section 115, C.P.C. There are various pronouncements in this regard of this Court and the Privy Council. See N.S. Venkatagiri Ayyanger's case PLD 1949 PC 26, Muhammad Akhtar's case 2001 SCMR 1700 and Abdul Rahim's case 2000 SCMR

10.For the reasons stated above this petition is dismissed being without substance, with no order as to cost.

Announced. JUDGE

*M.Zafral P.S*