Nihayat Khan vs Shehryar

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

CR. No 462-P/2012 Date of hearing...26.02.2015

Nihayat Khan Vs Sheheryar Muhammad

Petitioner(s) by.........................................................................

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

ABDUL LATIF KAHN, J:- Through the instant revision petition, the petitioner has challenged the judgment and decree dated 09.02.2012 passed by learned Additional District Judge-VIII, Mardan, whereby appeal filed by the petitioner against the judgment and decree dated 22.02.2011 of the learned Senior Civil Judge, Mardan was dismissed.

2.A perusal of record reveals that

petitioner/plaintiff filed a suit for possession through pre-emption against the defendant/respondent. The respondent sale effected through mutation No. 1875 dated 23.05.2005. It was averred that he acquired knowledge of sale on 12.06.2005 at 5.30 PM in presence of Muntazir and Fayaz and there and then

announced his intention to pre-empt the transaction.

The suit was contested by defendant through filing written statement. Several issues framed and parties adduced their evidence in support of their respective stance, and thereafter the trial court non- suited the plaintiff. Appeal preferred met the same fate.

3.The scanning of evidence available on file would reveal that the averment made in the plaint regarding performance of ‘Talb-e-Muwatebat’ have not been proved by the plaintiff in terms of Section 13 of KPK Pre-emption Act, 1987. The contents of Para 3 of the plaint reveals that place of ‘Talb-e-Muwatebat’ has not been mentioned in it which is the pre-requisite and plaintiff is under obligation to mention date, time and place in the plaint which amounts to deficiency and is sufficient to non-suit the plaintiff apart from other discrepancies in the evidence. The Constitution of the meeting/majlis has not been proved, nor the information allegedly disclosed, has been substantiated with confidence inspiring evidence.

The presence of witnesses in the majlis has not

been established and the plaintiff and his witnesses are at variance on this point too. The contradictions made in the evidence are of grave nature. The variation with respect of consultation with other brother of the plaintiff and performance of immediate demand on the acquisition of information is also doubtful as the plaintiff is not consistent in this regard. As the performance of ‘Talb-e- Muwatebat’ has not been proved which is of vital importance and is fatal to the case and any discussion on the subsequent Talab would not be necessary for the disposal of the instant matter.

Similarly there is no need of any discussion on issue of waiver and market value as these issues have become redundant due to non-performance of Talab by the plaintiff in accordance with law.

4.Both the Courts below have decided the matter pending before them with conscious and application of independent mind. The petitioner was unable to point out any jurisdictional or legal error in the impugned judgments and I am of the considered view that the impugned order are neither misdirected nor mislead in arriving to conclusion

which is entirely in consonance with law and facts of the case.

For the foregoing reasons, the instant petition being devoid of merit, is dismissed.

Announced.

Dt.26.02 .2015.

JUDGE

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