Jamil-ur-Rehman vs Rehmatullah

2014 M L D 528

[Peshawar]

Before Lal Jan Khattak, J

JAMIL-UR-REHMAN---Petitioner

Versus

REHMATULLAH---Respondent

Civil Revision No.595 of 2011, decided on 29th August, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. XLI, R. 27---Suit for possession through pre- emption---Talbs, performance of---Requirements---Application for recording additional evidence by plaintiff---Scope---Contention of plaintiff was that Appellate Court had not decided application for recording additional evidence and decreed the suit---Validity---Proposed additional evidence was available with the plaintiff at the time of conducting of trial but he did nothing to get the postman examined---Plaintiff filed application for additional evidence before the Appellate Court at belated stage---Such attempt had been made to counter the findings of the Trial Court that pre-emptor had not proved sending of notice of Talb-i-Ishhad---Pre-emptor moved application to fill up lacunae which was contrary to the provisions of O. XLI, R. 27, C.P.C.---Non-disposal of said application did not matter anymore---Pre-empted land was a plot and developers of the town invited all and sundry through advertisement to get plots---Had plaintiff been serious in getting the suit plot then he could have easily purchased the same without entering into any litigation---Plaintiff had already purchased some plots in the town and there was no hindrance or snags in the way of plaintiff to get the plot, had he been serious in purchasing the same---Conduct of pre-emptor was sufficient to non-suit him---Findings of two courts below were based on correct appreciation of evidence---Neither the pre-emptor nor his witnesses of notice of Talb-i-Ishhad had deposed anything that plaintiff performed Talb-i-Ishhad in their presence---Plaintiff was bound to refer to his Talb-i-Muwathibat in presence of two truthful witnesses while performing his second talb of Ishhad---Mere sending notice (of Talb-i- Ishhad) could not be equated with performance of Talb-i-Ishhad---Plaintiff had not performed necessary talbs and his right of pre-emption had been extinguished---No illegality or defect had been pointed out in the judgments and decrees of two courts below which were based on correct appreciation of law and facts of the case---Revision was dismissed in circumstances.

Rustam Khan Kundi and Fazlur Rehman Baloch for Petitioners.

Ehsan-ul-Haq Malik and Syeda Talat Zahra for Respondents.

Date of hearing: 29th August, 2013.

JUDGMENT

LAL JAN KHATTAK, J.---This civil revision petition under section 115, C.P.C. is directed against the judgment and decree dated 3-11-2011 of the learned Additional District Judge-VI, D.I.Khan whereby appeal of the petitioner against the judgment and decree dated 18- 2-2011 of the learned Civil Judge-IV, D.I.Khan, was dismissed.

2.Short facts of the case are that the petitioner exercised his right of pre-emption over the suit plot purchased by the respondent through a sale deed registered on 3-2-2005. The suit was contested by the respondent by denying the rights of pre-emption of the petitioner on the ground of his failure to perform the requisite talbs and estoppel etc. The learned trial court after framing necessary issues directed the parties to produce their evidence which they did whereafter the learned trial court vide its judgment and decree dated 18-2-2011 dismissed the suit. The dismissal was impugned in appeal but the learned appellate court vide its judgment and decree dated 3-11-2011 concurred with the findings of the trial court by dismissing the appeal. The petitioner has now impugned the concurrent findings of the two courts below through the instant revision petition.

3.Learned counsel for the petitioner contended that the learned appellate court has committed a gross illegality by not deciding an application moved on behalf of the petitioner for recording additional evidence. He further submitted that non-suiting the petitioner on the ground of non-fulfillment of talbs and on waiver is not correct as the petitioner has successfully proved the performance of requisite talbs in accordance with law and that there is no waiver on the part of the petitioner.

4.As against the above, learned counsel for the respondent contended that not only the petitioner has utterly failed in the performance of talbs in accordance with law but due to his conduct he has waived his right of pre-emption. The learned counsel further contended that though no order was passed on the application for additional evidence submitted by the petitioner before the learned appellate court but no prejudice has been caused to him as apart from non- examination of the postman the petitioner has mainly been non-suited on his failing to perform requisite talbs in accordance with law and also on the ground of his own conduct and estoppel.

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

6.First I will take up the preliminary point raised by the learned counsel for the petitioner

that the learned appellate court decided the appeal without disposing of the application submitted by the appellant for recording additional evidence. True that the above application has not been disposed of by the learned appellate court which ordinarily should have been decided but along with the appellate court the petitioner too is equally responsible for keeping his application undecided as it was his duty to pursue his case qua his application before the final hearing of his appeal. Record suggests that the application was filed on 27-6-2011 and the appeal was decided on 3-11-2011 and during this period no positive efforts were made by the learned counsel for the petitioner to request the court to decide the application before a decision on the main appeal. Moreover, the proposed additional evidence was well available with the petitioner at the time of conducting the trial but he did nothing to get the post man examined in support of his plea and it was at a very belated stage when the petitioner filed an application before the appellate court to allow him to produce additional evidence. This attempt has purposely been done to counter the finding of the learned trial court that the pre-emptor has not proved sending of notice of Talb- e-Isshad to the vendee. So to fill up this lacunae the petitioner moved the application which move is quite contrary to the provision of Order XLI, Rule 27, C.P.C. Therefore non-disposal of the above application does not mater anymore.

7.Core issue in the case is that the pre-empted land is a plot in a new developed residential town. The respondent has produced an advertisement which is Ex.DW.1/1. This document reveals that the developers of the town invited all and sundry through the advertisement to come and get residential plots and shop in the new town through cash or even on installment on first come first get basis. Had the petitioner been serious in getting the suit plot he could have easily purchased the same without entering into any litigation by contacting the developers first. It is also on the record that the petitioner has already purchased some plots in the town from the developers. As the offer of purchasing the plot in the town was open to every person and there was no hindrance or snags etc in the way of the petitioner to get the same had he been serious in purchasing the plot. The above aspect of the case shows that the attitude and conduct of the petitioner is noticeable and is sufficient to non-suit him.

8.Regarding the performance of Talbs finding of the two courts below are based on correct appreciation of the case evidence to the above effect. Neither the petitioner nor his two witnesses of the notice of Talb-e-ishhad stated anything that in their presence the petitioner performed his Talb-e-Ishhad. Apart from scribing and sending notice to the vendee under section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, it is obligatory for the pre-emptor to refer to his Talb-e-Muwathibat in presence of two truthful witnesses while making his second Talb of Ishhad. Mere sending a notice under section 13 of the Act ibid cannot be equated with Talb-e- Ishhad. So far the above reasons it can safely be held that the petitioner has not performed the necessary Talbs and, therefore, his right of pre-emption has been extinguished.

9.No illegality or defect has been pointed out in the judgments and decree of the two courts below which are based on correct appreciation of law and facts of the case.

10.For what has been discussed above, I find no merit in this civil revision which is hereby dismissed leaving the parties to bear their own costs.

AG/604/P Revision dismissed.