2013 M L D 230

[Peshawar]

Before Mrs. Irshad Qaiser, J

FAZAL RAHIM and others---Petitioners

Versus

FAQIR KHAN---Respondent

Civil Revision No.1056 of 2009, decided on 8th October,2012.

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

----S.13---Pre-emption suit---Talb-e-Muwathibat, Talb-e-Ishhad and Talb-e-Khusumat,

performance of---Failure of plaintiff to prove performance of such Talbs---Effect---Right of pre-
emption would extinguish on such failure.

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

----S.13---Pre-emption suit---Talb-e-Muwathibat, performance of---Statements of plaintiff's

witnesses regarding performance of Talb-e-Muwathibat recorded after lapse of four years---Non-
material inconsistencies in statements of such witnesses---Effect---Law would not favour to
throw away pre-emptor just on technicalities---Non-material inconsistencies or minor
contradictions/omission in such statements could not mar the case of plaintiff---High Court
deprecated and disapproved practice of Trial Court to declare witnesses as false or untruthful on
account of minor omissions or contradictions in their statements.

PLD 2002 Lah. 280; 2005 YLR 197; 2006 SCMR 1410 and PLD 2003 Pesh. 179 rel.

(c) Civil Procedure Code (V of 1908)---

----Ss.96 & 115---Revision---Divergent findings of two courts below---Effect---High Court

would give due attention to prefer findings of lower Appellate Court, unless same suffered from
grave irregularity or were perverse or reason given by lower Appellate Court was not
sustainable.

2007 SCMR 576 rel.

Miss Gulnaz for Petitioners.

Nasir Khan Khalil for Respondent.

Date of hearing: 8th October, 2012.

JUDGMENT

MRS. IRSHAD QAISER, J.---By way of this revision petition, petitioner Fazal Rahim
has assailed the validity of judgment and decree dated 16-9-2009 passed by learned ADJ-IX
Peshawar whereby he accepted the appeal of the plaintiff/respondent and set aside the judgment
and decree of Civil Judge dated 23-12-2008.

2. Precise facts of the case are that respondent/brought a suit for possession through
exercising his right of pre-emption to suit property measuring 1 kanal 10 marlas fully described
in the heading of the plaint sold in favour of defendant/Fazal Rahim/petitioner and Fazal Rabi
vide registered deed No. 17660 dated 9-8-2004 for sale consideration of Rs.30000.

3. It was averted in the plaint that the vendor, without issuance of any notice to the proposed
pre-emptor had sold the disputed land at the hands of defendant for Rs.30000, however, an
exaggerated sale consideration of Rs.4,80,000 has been shown in registered deed and the
transaction was kept secret. It was alleged that respondent/plaintiff came to know about the sale
on Monday, 23-11-2004 at 5-00 p.m. hours at his Hujra/ Bathak through Shakirullah in presence
of Muhammad Islam and Roshan Khan and he there and then declared his right of pre-emption
and as such fulfilled Talb-e-Muwathibat and thus performed 1st Talab, where after the
respondent sent notice Talb-i-Ishhad duly witnessed by witnesses and thus performed second
Talbs. Plaintiff alleged to have superior right of pre-emption being joint/co-owner, contiguous
owner and also participator in the immunities attached to the suit land and on 2-12-2004 he filed
suit for pre-emption.

4. Petitioner and his brother/ defendants were summoned who appeared and contested the
suit by submitting their written statement on multiple legal and factual grounds.

5. Divergent pleading of the parties were reduced to the issues duly reflecting in the
judgments of Courts below and after the culmination of trial suit of the plaintiff was dismissed
vide judgment and decree dated 23-12-2008. Against that judgment and decree plaintiff filed
appeal which was accepted vide judgment and decree dated 16-9-2009 and the suit of the
plaintiff was decreed with the direction to the plaintiff to affirm the requisite Court fee with in 7-
days and to deposit the remaining amount of sale consideration within one month and set aside
the judgment and decree of trial Court. Feeling aggrieved petitioner filed present revision
petition on various legal and factual grounds mentioned in revision petition.

6. Arguments heard and record perused.

7. Learned counsel for the petitioner/defendant argued that plaintiff/respondent failed to

prove the performance of required Talbs. That there are material contradiction in the statement of
PWs which have been rightly discussed by the learned trial Court while giving its finding on
issue No. 2, that the plaintiff has no superior rights of pre-emption. That plaintiff became the co-
sharer in the disputed khasra vide inheritance Mutation No. 8660 dated 17-2-2005 and it was
attested after the institution of suit. Therefore at the time of filing of suit he has no superior
rights. That appellate Court had considered the death certificate produced by the counsel of
plaintiff at appellate stage and no opportunity was given to petitioner as required under Order
XLI, Rule 27, C.P.C. Thus the judgment and decree of appellate Court is not sustainable. While
in rebuttal learned counsel for the respondent/plaintiff argued that plaintiff has superior right of
pre-emption. Both the Courts have decided this issue in favour of plaintiff. He further argued that
he has successfully proved the performance of Talb by the production of reliable evidence.

8. Now first question to be determined is that whether plaintiff has been able to fulfil the
requirement of Talbs? Both the learned counsel focused their submissions on issue No. 2 as to
whether the plaintiff fulfilled the requirement of section 13 of the N.-W.F.P. Pre-emption Act,
1987. In term of section 13 of the Pre-emption Act, the performance of talbs is a condition
precedent as it stipulated that the right of pre-emption of a person shall be extinguished unless
three talbs are performed. The said provision read as follows:--

13. Demand of pre-emption.

(1) The right of pre-emption of a person shall be extinguished unless such person
makes demands of pre-emption in the following order, namely:--

(a) Talb-e-Muwathibat;

(b) Talb-e-Ishhad; and

(c) Talb-e-khusumat.

Explanation.

(I) Talb-e-Muwathibat means immediate demand by a pre-emptor, in the sitting or

meeting (Majlis) in which he has come to know of the sale, declaring his intention to
 exercise the right of pre-emption.

Note. Any words indicative of intention to exercise the right of pre-emption are
sufficient.

(II) Talb-e-Ishhad means demand by establishing evidence.

(III) Talb-e-Khusumat means demand by filing a suit.

(2) When the fact of sale comes within the knowledge of a pre-emptor through
any source, he shall make Talb-e-Muwathibat.

(3) Where a pre-emptor has made Talb-e-Muwathibat under subsection (2), he shall
as soon thereafter as possible but not later than two weeks from the date of knowledge
made Talb-e-Ishhad by sending a notice in writing attested by two truthful witnesses,
under registered cover acknowledgement due, to the vendee confirming his intention to
exercise the right of pre-emption:

Provided that in areas where owing to lack of post office facilities it is not possible for
the pre-emptor to give registered notice, he may make Talb-e-Ishhad in the presence of
two truthful witnesses.

(4) Where a pre - emptor has satisfied the requirements of Talb-e-Muwathibat

under subsection (2) and Talb-e-Ishhad under subsection (3), he shall make talb-e-
khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.

9. Since the plaintiff/respondent alleged to have successfully performed the required Talbs
and even otherwise, plaintiff in pre-emption cases are obliged to prove the due performance of
Talbs, therefore, evidence of the plaintiff is to be scrutinized to see whether talbs have been
proved or not?

i. Talb-e-Muwathibat.

10. In para No. 2 of the plaint the respondent/plaintiff alleged to have been informed on 23-
11-2004 at about 5-00 p.m. by Shakirullah regarding the suit transaction in his baithak in the
presence of Muhammad Islam and Roshan Khan and the plaintiff there and then declared his
attention to exercising his right of pre-emption. It is in the presence of informer as well as
abovenoted persons. Along with the plaint copy of Talb-e-Ishhad notice is also available where
in the same assertions in the same manner are contained. In support of these assertions,
respondent himself was examined as P.W.7, informer Shakirullah was examined as P.W.4 while
Muhammad Islam and Roshan Khan were examined as P.W.5 and P.W.6.
11. Plaintiff as P.W.7 stated that on 23-11-2004 at 5-00 p.m. he was sitting in his house when
Shakirullah came and informed him about the impugned transaction whereupon he declared his
intention to preempt the transaction and in this manner Talb-e-Muwathibat was performed.
P.Ws.5 and 6 Muhammad Islam and Roshan Khan were present there and in the same meeting
first Talb was made. The informer Shakirullah was examined as P.W.4. He has also given the
detail of his information to plaintiff on 23-11-2004 at 5-00 p.m. in the baithak of plaintiff,
Muhammad Islam and Roshan Khan P.W.5 and P.W.6 also gave the detail of date, time and
place in the same tone. They have unanimously stated that they were sitting with plaintiff when
Shakirullah came and informed the plaintiff about the transaction on 23-11-2004 at 5-00 p.m.
in his Baithak where upon the plaintiff expressed his intention of pre-empting the same
transaction. The trial Court while deciding this issue pointed out certain contradiction in the
statement of P.Ws. and held that the plaintiff has failed to prove Talb-e-Muwathibat. But the
Appellate Court did not agree with the trial Court and held that the trial Court was fallen into
error by considering the said inconsistencies as material for discarding the statements of P.Ws.
because these are minor contradiction. In order to reach the correct conclusion I have minutely
gone through the statement of P.Ws. 4 to 7 and hold that the inconsistencies pointed out by the
trial Court in the statement of P.Ws.4 to 7 are not material. It is admitted fact that the Talbs were
allegedly made on 23-11-2004 while their evidence was recorded on 25-11-2008 after the laps of
4 years. It is settled principle of law that minor clerical omission in the statement of witnesses
whose statements were recorded after sufficient time, cannot mar to case of plaintiff. Law does
not favour to throw away the pre-emptor just on technicalities. Reference is made to PLD 2002
Lahore 280, 2005 YLR 197, 2006 SCMR 1410, PLD 2003 Pesh. 179 wherein it is held "Court in
making appraisal of oral evidence on question of Talbs, by indulging in strict scrutiny to find
fault, minor omission and contradiction, had caused grave prejudice to the pre-emptor, such
approach by Court below ran counter to sound judicial principles because rules and standards for
appraisal of evidence in civil cases were different from those employed in criminal cases as the
law has laid down different standard of proof for different categories of cases".

12. Keeping in view the above facts while agreeing with Appellate Court I hold that approach
and representation shown by trial Court in declaring and branding witnesses of Talb as false or
untruthful because of minor contradiction or omission in their evidence was not a desirable
practice and was disapproved.

13. So in the given circumstances the testimony of as many as 4 P.Ws. about Talb-e-
Muwathibat on 23-11-2004 at 5-00 p.m. in the Baithak of plaintiff is more than sufficient and it
has been established on record that respondent/plaintiff had duly performed Talb-e-Muwathibat
in accordance with law.

ii. Talb-e-Ishhad.

14. It is alleged in para No. 3 of the plaint that on 26-11-2004 notice of Talb-e-Ishhad were
sent through registry to the defendant. Copies of the notice, registry receipt and AD card are
annexed with the plaint. In support of his contention he examined post master as P.W.3 who
produced the register pertaining to the receipt Nos. 1008 and 1009 dated 26-11-2008
Exh.P.W.3/1 and Exh.P.W.3/2. Plaintiff himself was examined as P.W.7 and also produced
Muhammad Islam and Roshan. They have given the detail of the execution of the notice and also
exhibited the same as Exh.P.W.5/1 and Exh.P.W.5/2. Both these notices have been exhibited
with out any objection on the part of defence. Moreover all the three P.Ws. have not been cross
examined in respect of issuance of the notice. No material question was asked from them in this
respect. Defendant Fazal Rabi was examined as DW but he has not uttered a single word about
the service of notices Exh.P.W.5/1 and Exh.P.W.5/2. He did not dispute and or deny the factum
of Talb-e-Ishhad notice. Defendant/petitioner neither himself appeared in the witness box nor
produced any one as his attorney. It means that he also accepted the receipt of notice. Thus it has
been held that respondent/plaintiff has duly performed and successfully proved the making of
Talb-e-Ishhad.

iii. Talb-e-Khusumat.

15. The impugned transaction is dated 9-8-2004 and the suit in hand has been filed on 2-12-
2004. So the third Talb is also duly performed. The point of Talbs therefore rightly decided in
favour of respondent by appellate Court. It is settled principle of law that in case of divergent
findings of two courts below, High Court has to give due attention to finding of lower appellate
Court unless it suffers from grave irregularity or the same are perverse or reason given by lower
Court are not sustainable. Reference is made to 2007 SCMR 576.

16. Next question for determination is whether plaintiff has superior rights of pre-emption or
not? It is the concurrent finding of both the Courts below that plaintiff has superior rights of pre-
emption as the fact is proved from the statement of Patwari Halqa that the disputed property is
situated in khasra No. 2904 and the house of the plaintiff is situated on the East side of the
property in question. This fact is also reflected in Naqsha Tasweri Exh.DW-1/7 and sale deed
Exh.DW-1/1. DW-1 also admitted that plaintiff is the resident of same locality and his house is
adjacent to the disputed property. Thus there is no dispute to the fact that plaintiff has superior
rights against the defendant. It is also important to note that plaintiff has brought suit against
both the vendee Fazal Rahim and Fazal Rabi. But Fazal Rahim did not appear in the witness box
nor he authorized any body else to depose in his favour. Only Fazal Rabi who is not the attorney
of defendant No.1 was examined as DW-2 while the present revision petition was filed only by
Fazal Rahim while no interest was shown by other vendee Fazal Rabi.

17. Keeping in view the above facts and circumstances of the case I hold that there is no
force in the revision petition which is hereby dismissed with no order as to cost.

SAK/374/P Revision dismissed.