Aman Ullah Vs Tufail Ahmad & others

JUDGEMENT SHEE'i

IN THE PESHAWAR HIGH COURT, BANNU BENCH

(Judicial Department)

C.R. No. 61-8l20ls

Aman Ullah versus Tufail Ahmad & 03 others.

Date of hearing: 08.12.202L

For petitioner: Haii Habib-Ur-Rehman, Advocate.

Forrespondents: Mr.lrfanullahMarwat.Advoqate,

IUDGEMENT

MUHAMMAD NAEEM ANWAR.I.- 1'hrough the instant petition filed under section 115 of the Code of Civil Procedure,1908, (CPC) the petitioner has challcnged thc vires of judgment and decree o[ Iearned Additional [)istrict fudgc-ll, I.akki Marwat dated 10.02,2015, wherciby his appcal as woll as cross-objection filed by respondents were alsc disniissed.

02.Contcnts of the plaint when unfolded discloscd that pctitioner filed a suit for recovery of possession through prc-cmption for pr0pcrty mcasuring 01-Kanal and 1.0-Marlas purchased by thc respondents through

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mutation No. 505 dated 14,05.2011 bearing Kfrasra No. 2/95, 94,78 of the revenue estate of Umar'fitter Khel'l'ehsil and Disti'ict Lakki Marwat with the contentions that on 04.09.2011, Sunday, at about 0U:00 l']M (/.ihr.ro vella), sitting in his house, was informed by Fahim Ullah about the sale of disputed property, he then and there pronounced his intention to pre- empt the sale in presence of informer and as such fulflilled "'l'alb-i- Muwathibot" which was followed by notice of !"1'alb-i-lshhqd" (lix.l'}W-a/a) dated 06,09.207L, sent under the cover of registcrcd Acknowledgment Due. Suit was resisted by the vendees/defendants on various lcgal and factual objections. Completion of evidence resultcd into disrnissal of thc suit by the learned trial Court vide its judgrnent and decree dated 18.01.20L4.'fhc grouncl of dismissal which prcvailed upon the learned

trial court were that two of the vendecs wercraged about 07 ycars and 1,2 years, therefore, being minors could not be sued. Learned trial court opined that the informer of the pre-emptor/petitioner could not explain the particulars of the land sold thus, the inflormation could not bc conveyed to the pre-emptor, therefore, "Talb-i-ltluwathibat" was not properly proved and two of the vendees were minors who on one hand could not be sued whereas, on the other noticel:s of "Talb-i-lshhad"were not served upon them, as such "'l'alb-i-lshhqd" has not been proved. Findings of the learned trial court regarding issue No, 3 were in favour of the pre- emptor, Both the parties being aggrieved from the judgment and dccree of the learned trial court have preferred their separate appcals. Learncd appellate court dismissed the appeal ,, *uil as the cross-objection of respondents. The petitioner has filed the instant petition however, respondents have not assailed the judgment and decree of the learned \ appcllate court.

03.Learned counsel for petitioner/plaintiff contended that when thc pre-emptor has got the knowledge about the sale, he was legally requircd to make "Talb-i-lrluwathibat'and it was not the requirement o[ law to bc aware in respect of the particulars of the disputed property. lle addcd that it was not mentioned in the mutation that who is minor from the vendees;

therefore, the suit was competently filed against vendees. He also contendcd that when notices were scribcd and posted through thc registered A,D than it was the duty of the oificials of the post office to deliver it on the addressee as the duty of pre-emptor was only to dispatch the notice in consonance of sub clause 3 of section 13 of Khyber Pakhtunkhwa Prc-emption Act, 1987. Ile furthcr contendcd that supcrior right of pre-emptor was not only admitted by the vendees but the patwari halqa has also stated in examination-in-chief that property of the plaintiff

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is contiguous to the disputed property and when the cross-objections of the vendees were dismissed, they have not assailed the finding of thc learned appellate Court, as such the findings of both the learned courts below on issue No.3 have attained finality and vendees cannot attack the superior right of pre-emptor. He referred Ex.PW-1 /5, Ex.PW-I17 and Ex.PW- 1/B for the superior right of petitioner. '

9!.. Conversely, learned counsel for respondents contended that without proving superior right, suit of the plaintiff lies nowhere against them, he referred to EX,PW-1/B and Ex.PW-1/6 and contended that one corner of the property bearing Khasra N0.82 is touching Khasra No. 94 which is disputed one and one corner of propcrty bearing Khasra No.21is touching Khasra No. 78 which is disputed one, therefore, merely touching a \" corner of a particular Khasra number with the disputed one could not be considcred c0ntigu0us t0 thc disputed propcrty, in accordancc with explanation of section 6 of the Pre-emption Act,l9B7, without which prc- emptor has got no right to sue the respondents. In support of his contentions, he made reliance on PLD 2004 Lahore 12, Civil Appeal No.

1.'256 of 2008 decidcd by the apex court in suit titlcd "Allah Ditta Vs Ali Muhammad" on 05,11.201.5,1.999 CLC 831. He added that the person who conveyed information to the informer of pre-emptor was required to be produced before the court in accordance with the dicta of Supreme Court of Pakistan in casc titlcd "Subhan-ud-l)in & othcrs Vs. Pir Chulam" (l'}l,l) 2015 SC 69). He while making reliance on 2006 MLD 1001 contended that the pre-emptor has failed to prove "Talb-i-Muwathibaf' as well as "Talb-i- lshhad" hence, he was not entitled for any relie[. Lastly, he submitted that without filing cross-objections, the respondents/vendccs can validly challenge/object the findings of both the learned courts below in a revision

petition pending against them and provision of Order XLI Ilule 22 of thc Code of Civil Procedure, 1908 would not affe ct them

05.I have listened the learned counsel for the parties and with their able assistance scrutinized the record.

06.No doubt, in order to get a decrce in a suit flor rccovery of possession through pre-emption, one of the requirements for prc-emptor was his superior right of pre-emption. In the instant case, admittedly, the pre-emptor is not a co-sharer rather as per Ex.PW-1/6 and lix,PW-1/ti Khasra No. 94 and 2195 fboth are disputed) are adjacent to cach other whercas, one corner of Khasra No.94 and Khasra No. 82 is connected with each other, whereas and Khasra No. 78 and 94 (both are disputcd) are contiguous to each other but one corner of Khasra No. 78 is connected with Khosra No. 21 as depicted in Ex.PW-1/8, shown towards West of thc N property but not even a single line/side of any of any survey numbcr of thc disputed property is connected with the property owned by petitioner/pre-emptor. The concept of compact block has been explained by the Hon'ble Supreme Court in the case of "Ahmed Khan v. Sattar Din" (PLD 1981 SC 148) wherein it was held that "it is cnough that somc Khasra numbers were contiguous to the land sold by the vendor for thc pre-emption had been sought in regard to a compact block of land sold by the vendor and the contiguity with cven onc of Khasra numbers was sufficient to entitle and plaintiffs to claim entire holding comprised in a sale. Similarly, in the case of "5.M. Khaliq Shah and Khan and others' (1jI$LSCUB-2ZI) it was held that that "it is not necessary to prove contiguity of each Khasra numbcr of the prc-emptors with that of the Khasra numbers forming subject-matter of the suit". Hcrc in the instant case, there are two distinct " Khotos" one corner of Khasra No.

tiZ which is connccted with Khasra No,94 can'neithcr bc considcrcd to bc

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contiguous nor it makes a compact block, Similarly, Khasra No. TU towards its Western sidc touches with Southern side o[ Khasra No. 21 at a particular place marked as "A1" could not be considered to be in connection or with relation to a compact block and for that matter do not demonstrates the contiguity of the pre-emptor with the disputcd property.

In the case o[ " " in Civil Appeal No. 1256

of 2008, decided on Sth November 2015 the Hon'ble Supreme Court of Pakistan has held:

"5, We next consider the respondent's purported capacity as shafi jar. In this regard the respondent had also placcd reliancc on the aforesaid exhibit (Ex. P-1) however an examination of this document reveals that the western corner of the said property merely touched the southern corner of the respondent's land. This in our opinion would not meet the requirement of the two properties being "adjacent" to each other in terms of the explanation to section 6 of the Act. With regard to this very aspect there is a precedent of thc Lahorc High Court (that had escaped the notice ofthe learned judge as wcll as the learned counsel appearing before the FIigh Court) which was the case of Muhammad Ayub V. Hazrat Mansha [2006 MLD 1001) wherein Jawwad S, Khwaja, J (as he then was) had held:

"The entire concept of contiguity in matters of pre-emption is based upon the premise that the owner of land sharing a common boundary with land, which is subject-matter of a pre- emption suit, should have a right superior io that of a purchaser who does not own land having a common boundary with thc suit-land. In the present case it is quite cvident that the suit land has no common boundary with the land owned by the respondent/plaintiff in Square No. 88. 'fhe mere fact that Killa No. 25 in Square No. 88 has one corner touching the corner of Killa No.1 in Square No. 102, which is part of the suit-land, does not result in any shared boundaries between the two and, as such, cannot be treated as being contiguous. It, thercforc, follows that the ownership of the respondent/plaintiff in Killa No.25 of Square No. BB does not vest in him a superior right of pre-emption in respect of the suit-land, "

01-, In view of the principle laid-down by the apex Court, thc pctitioner has got no superior right on the ground of contiguity or compact block with the disputed property. 1'he question before this Court is as to whcthcr without filing of cross-objections or revision petition, could the respondents attack the findings of the learned trial court especially when before this Court revision petition of the petitioner is pending against thc

respondents and 0rder XLI Rule 22 of the Codc of Civil Procedure, L908 has madc any clog against the respondents for attacking the judgmcnt passed in favour of respondents to the extent of a portion which goes against them. The Hon'ble Supreme Court in the case of (Province of Puntab through hll

Muhammad Akram and others) (1998 SCMR 2306) has hcld:

"ln such behalf even where a respondent has neither preferred a petition for leave nor resorted to an appeal, the Court has ample authority and full power to extend relief to him provided that such is necessary either to do complete justice between the parties or the case otherwise involves invocation of the Court's inhercnt powers. In so doing, however, the party likely to be affected adversely, would be entitled to be heard and place its own point of view as regards the order proposed to be, thus passed."

08.In thc casc of Suba and others Versus Ahdul Aziz and others (2008 SCMR 332J it was observed that:

5, We have heard the learned counsel for the parties at length and have also perused the relevant record, We find that issues Nos.3 and 5 were regarding estoppel and Talbs, The findings of the trial Court on both issues were against the respondents/pre-emptors. However, the findings of the trial Court on all other issues were in favour of the respondents. Issue No.4 was also of vital importance as to "whether the plaintiffs had got any superior right and pre-emptive right in respect of the suit-land as against the vendee-defendants? OPP". It is clear from the judgment dated 28-1-1999 passed by the Additional District f udge, Jampur, that the petitioners were precluded from addressing arguments as to the correctness of the finding of the trial Court on other issues including lssue No.4 merely on the ground that they had not filed any cross- objcctions or cross-appeal in the case. 'l'he coursc adoptcd by the Additional District Judge was violative of the provisions of Order XLI, rule 22, C,P,C. and the judgment by a Full Bench of this Court in the case ofAbdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74, authored by one of us (Faqir Muhammad Khokhar, J.J, It was held therein that a party in whose favour a decree was passed, was not neccssarily rcquircd to filc an appeal or cross-objection as it could dcfcnd the decree on all the available grounds in support of the decrec in appeal as provided by 0rder XLI, rule 22,C.P.C., even though such grounds had been found against it. In Province of Punjab through Collector, Rajanpur District and 2 'others v. Muhammad Akram and 2 others 1998 SCMR 2306 this Court had taken the view that where a respondent had neither preferred a petition nor filed an appeal, the Court had amplc authority and full powers to extend relicf to him providcd that it was nccessary either to do completc ,lustice betwccn the parties or the case otherwise involved invocation of Court's inherent powers.

Reliance can also be placed on Salah-ud-DinlButt and others v. Puniab Service Tribunal and others PLD 1989 SC 597. Ghulam Rasool through L.Rs, and others Versus Muhammad Hussain and others (,PLD 20ll SC 119). True, that the respondent has not filed cross objections before this Court but when an illegality was pointed out then in such circumstances this Court can cxcrcisc thc jurisdiction provided undcrsection 115 and has got the power to undo the illegality. I am of the view that respondents can validly attack the findings of the learned trial court or appellate court while defending the judgment impugned before it, therefore, the objection of thc learned counsel for petitioner is misconceivcd. Rcicrcncc can bc made to the iudgments reported as Ghulam Muhammad and 3 others v.

Ghulam Ali t20ll4.SCUL1001) Mushtari Khsn v. Iehangir Khan (2006 t SCMR 1238),lttluhammad Nawaz alias Nawaza v. Member ludicial BoR and others [2014 SCMR 914) and Nazim-ud-Din and others v, Sheikh Zia-ul-Qamar and others (2016 SCMR 24).

the right of pre-cmptor but without any delay upon getting the knowledgc of sale in question. It is sine qua non for preemptor to mention in thc plaint the date, time and place of making talb-i-muwathibat and also to produce the informer before the Court but neither it was the requirement of law to producc a person who has conveyed thc information to the informer of thc preemptor nor this principle was enunciated by the Hon'ble Supremc Court in the case of "Subhan-ud-Din V Pir Ghulam" reported as Pl.D 2015 SC 69 however, with regard to presence of preemptor at his house at thc time of making of flirst talb was in doubt when the brother of prcemptor was not in the knowledge that the preemptor has gone to Punjab or not about the fact which the plaintiff alleged that when he returned flrom I']unjab he was informcd by his brother. With reference to the above aspect

of the case, apex court has observed that "T'aj Ali olso stated that he leqrnt of the sale from his nephew Nazir. but Nozir. who can be categorized as a material witness, was not produced, Was it because he may not have supported the version of events as presented b.v the respondent or was it because Nazir hod himself informed the respondent? Apart from thc abovc narrated fact when the clarification of talb-i-muwathibat was needed by the Court, the production of informer of the informer was neither intended by the legislature nor has ever held to be sine qua non for the preemptor.

10, Insofar as compliance of sub clause 3 of section 13 of the Pre- emption Act, t9B7 is concerned, only duty of the pre-emptor was to dispatch the notice under cover of registered A.D with a proper address of, the vendee and to prove it that notice was properly dispatched from thc post office if the facility is available, he is not required to serve it upon thc N vendee either himself or through postman, i'ather it is the duty of the postman and if it is not served he while appearing before the Court will explain it and in case if the addressee denied from the receipt of noticc then his statement shall serve the purpose for the purpose of sending oi a notice through registered envelope under acknowledgment due.

L One ol the ground for non-suiting the pre-ernptor by both thc learned courts below that minors were sued without next friend, suffice it to say that the sale document does not reflect the minority or majority o[ a vcndccs, thereforc, prc-cmptor was not legally rcquircd to suc thc vcndec through next friend and when it was objected to by the rcspondcnts/ defendants, the form of the suit was corrected, either the learned courts below were not properly assisted or it was ovcrlooked, be that as it may, it was not a valid ground to dismiss the suit of pre-cmptor against thc respondents,

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U. Iror the reasons discussed above, though the pre-emptor has provcd his "'falobs" in accordance with law howevcr, hc could not provc his superior right being contiguous owner of the property in dispute comprising of three Khasra numbers or anyone of the these for making a compact block with the disputed property, which was one of the basic requirement flor pre-emptor succeeding in a suit filed by him against thc respondents, thereiore, the dismissal of his suit is maintained, nevertheless, on the grounds as discussed above, hence the findings of both the learned courts below on issues No, 3 & 4 are reversed and thc instant petition stands dismissed with no order as to costs, Announced.

08.L2.202t.

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IUDGE

*lmronullah PS* (S.B) Ilon'ble Mr. lustice Muhammad Naeem Anwor'

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