Mst. IMTIAZ BEGUM and others vs Mst. SULTAN JAN

SHEIKH HAKIM ALI, J.--- Summarized facts of the case are that Shaukat Zaman, Muhammad Riaz, Qamar Zaman sons, Mst. Sultan Jan, Mst. Imtiaz Begum, Mst. Khalida Bibi and Mst. ,Tasleem Bibi, daughters of Abdul Qadir had sold out 6/10 shares in Plot No,37 measuring 10 Marlas, situated in Kalabat Township, Tehsil and District Haripur to their sister, namely, Mst. Imtiaz Begum, the present appellant, through a sale-deed executed on 11-7-1990 and registered on 12-7-1990. Mst. Sultan Jan respondent No,1, another sister of Mst. Imtiaz Begum filed a suit for pre-emption with regard to the above noted transaction displayed through the registered sale-deed in the Court of learned Civil Judge, Haripur. The suit was contested by Mst. Imtiaz Begum on various pleas: However, ultimately, the learned Civil Judge dismissed the suit on 10-7-1993.

2. Aggrieved from the above noted judgment and decree preemptor/respondent filed an appeal before the learned Additional District Judge, Haripur, which also met with the same fate on 28-11- 1995. Still dissatisfied with that judgment and decree Civil Revision No,13 of 1996 was filed before learned Peshawar High Court, Abbottabad Bench, which was allowed through the impugned judgment and decree, dated 3-3-2003 and the suit was decreed in favour of plaintiff at a price of Rs,18,000. The above noted judgment and decree passed in the above indicated civil revision has been assailed through this civil appeal, which is result of grant of leave in C.P.L.A. No,734 of 2003.

3. Learned counsel for the appellants submits that in the plaint as well as in the registered notice dated 19-7-1990, plaintiff/pre-emptor had failed to enter, as to on what date, time and place, she was apprised of the disputed sale, by whom she was informed with regard to the aforementioned sale, and before whom she had performed Talb-iMuwathibat? Therefore, in accordance with the latest pronouncement of this Court published in Mian Pir Muhammad and another v. Faqir Muhammad PLD 2007 SC 302, the suit could not be decreed by the learned revisional Court by reversing the judgments and decrees of the learned Courts below.

4. Conversely the respondent's learned counsel submits that this ground was never raised before the learned Courts below, therefore, this ground was not available to the appellant before this Court.

5. We have considered the arguments of the learned counsel and have perused the record. In para.3 of the plaint respondent/pre-emptor had not entered as to when she had got the knowledge of the sale, on what date, time and place and by whom she was informed of the sale.

Even the particular person, who had apprised her and before whom she had performed Talb-i- Muwathibat, was not noted in the plaint. In para. No,3 of written statement, Mst. Imtiaz Begum and her donees had clearly refuted the assertion of performance of Talbs. In such circumstances, it was incumbent upon the plaintiff/pre-emptor to prove the performance of Talb-i-Muwathibat, by entering it into plaint as well as in the notice above noted and thereafter to produce the relevant evidence upon this material fact. As the plaintiff had failed to note the above mentioned particulars and details in the above noted documents, the suit could not be decreed in favour of the plaintiff. The learned counsel for the appellants has rightly cited the judgment reported in Mian Pir Muhammad and another v. Faqir Muhammad PLD 2007 SC 302 by which even to the pending suits, it was applied. If the contention of the learned counsel for the respondent is considered that this plea has not been raised before the learned Courts below, and the same cannot be agitated before this Court, we are not impressed by this objection and do not consider this to have force, because the suit was to be framed by the plaintiff in accordance with the judgment of this Court and it was also the duty of the learned Courts below to advert to this point. Appellant having failed to plead and mention the above noted details in the plaint as well as in the notice, in such an event, the commission of fault was fatal for her own case, as the performance of Talbs was rightly considered to have not been correctly made for entitling respondent/pre-emptor to obtain the judgment and decree in her favour.

6. Resultantly, we accept this civil appeal, set aside the impugned judgment of the learned Peshawar High Court, Abbottabad Bench and dismiss the suit of pre-emption filed by respondent.