Muhammad Shafique Vs Shah Nawaz

,ilt :i

JUDGMENTSHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department)

C. RNo .468-N20tl

Muhammad ShaJique.

(Petitioner)

VS

Shah Nawaz

(Respondent)

Present: Muhammad Ashraf Hashmi, Advocate, for the petitioner.

Muhammad Nawaz, Advocate, for respondents.

Dates of hearingz 15.04.2024

JI]DG

MUHAMMAD IJAZ KHAN. J.- Throu gh the instant civil revision petition, the petitioner has challenged the judgment & decree of learned Additional District Judge-III, Haripur dated 30.06.2011, whereby, appeal filed by the present 't / petitioner/vendee was dismissed and thereby maintained the judgment and decree of the leamed Civil Judge-IV, Haripur dated25.0l.201 I who vide the same had decreed the suit of respondent/pre- emptor.

2 Precisely the facts of the case leading to the liling of the instant civil revision petition are Tahir Saleem (S,8.) Hon'blc Mr. Justice Muhrmmrd Ijaz Khan

that the respondent namely Shah Nawaz being a pre-emptor brought a suit against the petitioner Muhammad Shafique being vendee for possession of the suit property on the basis of superior right of pre-emption which suit was duly contested by the present petitioner by filing his written statement. [n view ofthe pleadings ofthe parties, the learned trial Court framed as many as eight issues and thereafter the parties were asked to produce their respective evidence which they have accordingly led. Initially, the suit of respondenUplaintiff was dismissed by the leamed trial Court vide judgment and decree dated 22.09.2010, however, he being aggrieved of the aforesaid judgment and decree preferred an appeal before the leamed Additional District Judge- III, Haripur which was allowed and the case was remanded back to the learned trial Court with the l/ direction to give findings on all the issues separately.

3.After the remand, the leamed trial Court again decreed the suit ofrespondenUplaintiff vide impugned judgment and decree dated 25.Ol.2}ll. The present petitioner being aggrieved of the aforesaid judgment and decree preferred an Tahir Sale€m (S.B.) Hon'ble Mr. Justice Muhrmmrd Ijrz Kh.n

appeal to the Court of leamed Additional District Judge-III, Haripur, however, the same was also dismissed vide impugrred judgment and decree dated 30.06.2011 which judgments and decreer have now been challenged by the petitioner/vendee through the instant revision petition.

t Arguments of leamed counsel for both the parties were heard in considerable detail and the record perused with their able assistance.

5.During the course of arguments, the learned counsel for the petitioner/vendee raised the following objections over the grant of decree in favour of respondent/pre-emptor.

,. That the respondent/plaintiff has not mentioned lhe names of marginal wilnesses of Talab-i-Ishad in his plaint, therefore, in view of the dicla laid down bY the APex Court in Kishmala Khan's case rePorted as 2023 SCMR 1176, the suit of ,2 respondent/plaintiff was liable to be dismissed.

tt. That respondent/plaintiff has neither proved the sending of the notice of Talab-i-Ishad nor its service upon the pelitioner.

Taht saleem (S,8.) Hon'ble Mr' Justicc Muh'm6id lirz Khrn

iii, That since the informer of the pre- emplor was his father, therefor, in view of the law set by the Apex Court in the case reported as 2022 SCMR 1231 the informer should have been disclosed his source of information which he has not.

6 As far as the objection No. 1 of the leamed counsel for petitioner/vendee is concemed that since the respondent/plaintiffhas not disclosed the names of marginal witnesses of Talab-i-Ishad in his plaint, therefore, his suit is liable to be dismissed in view of the judgment of the Apex Court in Kishmala Khan's case reported as 2023 SCMR 1176 is concemed, however, such stance of the petitioner could not be legally sustained as in rebuttal to the aforesaid objection, the leamed counsel for respondent/plaintiff produced the judgment of the Apex Court of a larger bench comprising of five Hon'ble judges reported as PLD 2007 Supreme Court 302 where it has categorically c been held in para No. 5 of the judgment that non-mentioning of the names of marginal witnesses of Talab-i-Ishad in the plaint by the pre-emptor shall not be fatal for his suit, whereas, the date, time and place of Talab-i- Muwathibat and date of Tahir Saleem (S.8.) Hon'blc Mr. Justice Muh{mmrd Ijrz Khcn

Talab-i-Ishad have to be mentioned in the plaint, therefore, since when there is a judgment of a larger bench comprising of five Hon'ble judges, tlerefore, the judgment of Apex Court comprising of two judges reported as 2023 SCMR 1176 would not be binding and as such on this score the suit of the respondenVplaintiff could not be dismissed.

7 As far as the second objection of the learned counsel for the petitioner/vendee bears legal weight to the effect that respondent/plaintiff has neither proved the sending of the notice nor the service of the aforesaid notice upon the petitioner/vendee. It is part of the record that in support of sending of the notice to the petitioner/vendee the respondent/ plaintiff has produced Abdur Rauf Khan, Town Inspector GPO as PW-1, who has produced the register of the GPO as well as the relevant receipt and the same have been exhibited as Ex PW-l/l and Ex PW-112, v however, in his cross examination he has admitted as under;

J,r C. -,f rl4 i J,( -r,,r ,f { ,.t 4 L ,t Ex PW1/1 4ExPw-717 -q f./ et eib rf *r € o, {,I e*pw -LlL L -C,f ,1u,, rla r{ c o{ vt w -+ ; ?:,t >t ( ( ottJ' Jrar i,./

Tahir Saleem (S,8.) Hon'ble Mr' Justrc€ Muhemmrd lirz Kh{tr

r a,>q r.{,f ,!,)r, i a,12, /& a,r tf ,.,t c} ct -+ (s

In view of the above, the very sending of notice by the respondent/plaintiff to the petitioner/vendee has not been proved as per the required standard of proof as the very person who has made entry in the relevant register and the person who has made entry on the register AD was not at all produced by the respondent/plaintiff' g. Similarly, the respondenUplaintiff has also not been able to Prove the service of eno as in support of service of the notice he has produced the Postman Muhammad Rafique as PW- 02, however, he in his cross examination has admitted as under;

tlc { ,,cu '!{ *,! , / ,/" OZut tJv rtir€r L '-t !* r,,v .4

9 : L Jr t ExPW-zlz s, -q d { d 6't oit dr Jt 7 * ; r! & c9t ..,t l,Jr q tf ,/.r,r fr \? : f t ExPw -2 l z d t-

-q&uo{ lf;)t-,,t /+lt'J*lf 'n In view of the above clean breast admission by the Postman that he has not handed over/ * distributed the registry in the Mouza of the petitioner/vendee i.e' Mouza Akhun Bandi and the same has been made by the representative of the NADRA namely Saleem Khan and he has shown a total ignorance about the entries made on the Tahir Saleem (S.B.) Hon'bl' Mr' Jultice Muh{mmrd lirz Khrn

receipt Ex PW-212 and has attributed the same to the said Saleem, a representative of the NADRA, though the said Muhammad Saleem has also been produced by the respondent/plaintiff as PW-04, however, he too in his cross examination has destroyed the case of the respondenUplaintiff by stating as under;

,f .fcfV,Pt jl4-,4,!Jti.F 6 ))'t(t,/ ()b(,-f;l ,t )tr L lb"f,,,/ Lrt -o{.{o/1 ,r./Jt,,,ro,/r9,Jri{urt y-r,/ Lv L u6 cta t)( 6't' uti q 4 A:) Jr, ,f t,t -,f ,,f Ol, i/

.G

In view of the above statement of Muhammad Saleem, the respondent/plaintiff has not been able to prove the service of the notice on the petitioner/vendee and thus the accumulative effect of the statement of PW-01, PW-02 & PW-4 is that the respondent/plaintiff has neither been able to prove the sending of the notice of Talab-i-Ishad to the petitioner nor its service upon him and thus in such an eventuality he has miserably been failed to establish the performance of the Talab-i-Ishad as I per requirement of Section 13 of The Khyber Pakhtunkhwa Preemption Act, 1987. ln Munawar Hussain's case reported as 2!!!)@p/!itwas held that the service on one of the two petitioners- defendants/vendees namely Muhammad Akram Tahir Saleem (S'8.) Hor'bl. Mr' Justic€ Muhrmmrd ljtz Kh'n

was not personally effected and according to leamed counsel for the respondent, it was effected on his brother and co-vendee Munawar Hussain appellant. The afore-referred service is not a service in the eyes of law. It is not the case of respondent/plaintiff either that service of notice of Talb-e-Ishhad on the said vendee was made through registered post acknowledgement due. The contention that service on the co-vendee should be presumed as service in law is not backed by any provision of law and therefore, is not tenable' Similarly, ln Mir Muh ammad Khan's case reported as PLD 2O2O Co urt 233 it was held that nothing on record proved the assertion of the pre-emptor that the notice was ever served on the vendee, who in his written statement before the courts below categorically denied service of the notice in question, therefore, it fell upon the pre- emptor in the case to prove that the notice had been delivered and by failing to prove the same or even P producing the postman who allegedly delivered the notice, the Pre-emptor failed to establish the sending or receipt of the notice for the performance of Talb-i-Ishhad and the suit for pre-emption was dismissed.

Tahir Saleem (S.8.) Hon'bl' Mr' Jullrc' Muh'tnmrd ljrz Kh'tr

9 As far as the third objection of the leamed counsel for the petitioner/vendee that since the respondent/plaintiff being pre-emptor was the son of the informer namely Abdul Qudoos and the said information was conveyed to him in the house, therefore, in such state of affairs the PW-06 namely Abdul Qudoos was required to disclose his source of information and thus in view the law laid by the Apex Court in the case reported as 2022 SCMR l23l the suit was also liable to be dismissed" however, the facts of the present case are distinguishable for the reason that PW-06 in his cross examination has admitted that he was informed by the vendee Muhammad Shafique that he has purchased the suit property, therefore, in such state of affairs neither respondent/plaintiff could compel the said Muhammad Shafique to appear in support of his stance nor for his non- production the same could be fatal for his suit,

V

therefore, such objection ofthe learned counsel for the petitioner/defendant is misplaced.

10 It is settled jurisprudence that when a party to the lis relies on the documents then such party shall not only produce and exhibit that Tahir Saleem (S.B.) Hon'bl€ Mr. Justice MuhrmE{d ljrz Khrtr

documents but it shall be bound to prove the contents of that documents, however, in the present case the respondent/plaintiffhas been able to prove the contents of alleged notice of Talab-i-Ishad as respondenUplaintiff in his cross-examination has admitted that the notice ibid was prepared by his counsel namely Nawaz, Advocate himself which shows that the respondenUplaintiff has no knowledge as to what was written by his counsel in the said notice whether it was notice of Talab-i- Ishad or otherwise- Furthermore, he has also admitted that the notice was signed by his counsel, however, Ex PW-5/l does not bear the signature of his counsel. These admissions on the part of nobody else but by the pre-emptor himself would show that he has not conveyed his intention to the vendee that he is interested in the purchase of sold out property and that he has a superior right than him. Likewise, the attesting witnesses of Talab-i- Ishad must also know its contents, however, the witness namely Abdul Qudoos has stated that the notice Ex PW-5/1 bears his thumb impression and signature of his counsel while other witress namely Azram Khan has stated that he has got no knowledge that whether the contents of Ex PW-5/l Tshir Ssl€em (S.B') Hoo'bL M'' Juttic' Muhrmmrd lj'z Kh'n

1l

were prepared by the counsel or not, therefore, the respondent/plaintiff has neither proved that the notice which was sent to the petitioner/vendee was infact the notice ofTalab-i-Ishad nor he has proved the contents of that notice and thus in absence of performance of Talab-i-Ishad as per requirement of law, a suit of pre-emption could not be decreed in favour of the pre-emptor'

11.In view of the above discussion and exposition of law when the respondent/plaintiff has not been able to prove the performance of Talab-i- Ishad as per requirement of law, therefore, his suit has wrongly been decreed by the two fora below in

his favour and consequently the impugned judgments and decree of both the Courts below respectively dated 30.06.2011 and 25'01'2011 arc set aside and suit of the respondent/plaintiff is dismissed

Ann ounced

TADGE

Tahir Saleem (S.8.) Hor'ble Mr. Julticc Muhrtrrmrd lirz Kbrtr