AKHTAR ALI Versus MUHAMMAD ANWAR

ABDUL AZIZ KUNDI, J.--- Through the following orders, passed by the Honourable Chief Justice on 9-2-2010, this revision petition was ordered to be placed before this Bench:

"Let it be placed before HJ-IV"

2. Facts of the suit, out of which this revision petition has arisen, are that land measuring 2 Kanals 16 Marlas comprising Khasra No.391, Khata No.36/101, per `Jamabandi' for the year 1991-92, situate within the limits of Khora Banda, Tehsil and District Mardan, was sold by Nihar Bibi, defendant No.2-respondent No.3, in favour of defendant-petitioner Akhtar Ali, vide mutation No.109 attested on 13-11-1997. Per averments in plaint, Muhammad Anwar, plaintiff-respondent No.1, claiming to have superior right of pre-emption being `Shafi Jar' and `Shafi Khaleet', on gaining knowledge of the said sale on 4-12-1997, at 2-00 p.m., in his `Hujra', through Amanullah Khan P.W, in presence of Itbar Khan and Noor-ur-Rehman, pronounced his intention to pre-empt the said sale and thus performed first `Talab' called "Talb-i-Muwathibat" and thereafter served the defendant-petitioner through a registered A.D. notice dated 8-12-1997, making second `Talab' called "Talb-i-Ishhad".

3. Defendants 1 and 2 in the suit, now petitioner and respondent No.3 respectively on this allegedly entered into collusion and thus an appeal against the mutation in question was preferred by defendant No.2-respondnet No.3, before Collector Mardan, for cancellation of the said mutation, where they entered into a compromise, pursuant to which Collector Mardan ordered cancellation of the mutation in question and return of the land to defendant No.2 Mst. Nihar Bibi, respondent No.3.

4. Through his plaint dated 3-1-1998, Muhammad Anwar Khan, plaintiff-respondent No.1 challenged the said judgment and order passed by Collector, Mardan on 18-12-1997 in appeal No. 3/9 and sought a declaration that the said proceedings and orders passed as a result thereof on the basis of compromise are based on fraud, collusion, against the facts and aimed to defeat his superior rights of preemption over the said land.

In clause "Bay' decree for possession through pre-emption, of the said area was prayed for, thus making the third `Talab" called "Talb i-Khusoomat" Defendant No.1-petitioner contested the suit through his written statement dated 17-4-1999 and before that he had through his application dated 23-12-1998 requested the Court seized of the suit to dismiss the suit, because he i.e. defendant No.1-petitioner has ceased to be the owner of the property, per the judgment/order dated 18-12-1997, passed by Collector, Mardan on appeal of Mst. Nihar Bibi of aforestated. This application of petitioner-defendant No.1 was dismissed by trial Court on 12-7-1999.

5. His appeal bearing Misc: Civil Appeal No.19/14 of 1999 was, however, accepted by Additional District Judge, Mardan on 4-12-1999, thus rejecting plaint of the plaintiff-respondent. Ultimately the matter came up before this Court in Civil Revision No.89/2000, filed by plaintiff-respondent, which was accepted on 1-2-2002. The impugned order dated' 4-12-1999, passed by Additional District Judge, Mardan was set aside and the one dated '12-7-1999, passed by trial Court was restored.

6. Muhammad Anwar, plaintiff-respondent No.1, through his application dated 25-3-2004, requested the trial Court to implead one Shakeel Akhtar as a party to the suit, who had in the meantime allegedly acquired title of the suit property. His request was, however, declined by trial Court vide order dated 16-7-2004.

7. Pleadings of the parties gave rise to eleven issues including relief, whereafter parties adduced their respective evidence.

8. Then vide judgment and decree dated 26-7-2008, the trial Court seized of the suit decreed suit of the plaintiff-respondent No.1 and amongst others it was held as under:--

"I am therefore, inclined to hold that mutation No.109 is still intact and the plaintiff has superior right of pre-emption over the suit land being contiguous owner."

9. This attracted two appeals i.e. Civil Appeal No.13/13 of 2008 by Shakeel Akhtar, the alleged subsequent vendee and Civil Appeal No.16/13 of 2008 by petitioner-defendant No.1. Pertinent to mention that Shakeel Akhtar appellant in Civil Appeal No.13/13 of 2008 was not a party to the suit but still his appeal was entertained and ultimately both the appeals were taken up for hearing jointly and vide judgment and decrees dated 16-2-2009, dismissed by learned District Judge, Mardan, who too amongst others held as under:-

"In the circumstances, explained above, it is held that the order dated 18-12-1997 of Collector, Mardan cancelling mutation No.109 is based on fraud and collusion, thus void and ineffective against the right of plaintiff."

10. Shakeel Akhtar, appellant of Civil Appeal No.13/13 of 2008 rushed to file Civil Revision No.280/2009 before this Court on 1-4-2009, which came up for hearing in motion on 16-4-2009 and was dismissed in limine on 24-4-2009. His petition before august Supreme Court of Pakistan through C.P.L.A. No.272-P/2009 bore no fruit and was dismissed on 5-6-2009, however request of the learned counsel with regard to the removal of remarks and observations from the said judgment of this Court against the learned counsel as well as the said petitioner was accepted by the Honourable apex Court.

11. Akhtar Ali, vendee-defendant No.1-petitioner filed this revision on 25-4-2009 within prescribed period of 90 days under section 115, C.P.C. and when it came up for preliminary hearing before a learned judge of this Court on 19-6-2009, the following order was passed:--

"Present: Mr. Muhammad Faheem Wali. Advocate for the petitioner.

Syed Khurshid Ali, Advocate submits his power of attorney and takes notice of this petition for 13-7-2009.

C. M. No. 575/2009.

Notice. Status quo in the meanwhile."

12. Again when it came up for hearing on 25-1-2010 before the same Honourable Judge, the following order was passed:--

"Present:-- Mr. Muhammad Fahim Wali, Advocate for the petitioner.

Syed Khurshid Ali, Advocate for the respondents.

The latter pointed out that similar C.R.No.280/2009 of the subsequent vendee was dismissed by this Court on 16-4-2009 and that judgment has been upheld by the Honourable Supreme Court on 5-6-2009 given in Civil Petition No.272-P of 2009, however, the former insisted that he may be given a chance to argue the cases he is able to distinguish the same. Adjourned to 1-3-2010. Be placed in the senior part of the cause list. In the meanwhile status quo be maintained."

13. Pursuant to order dated 9-2-2010, as reproduced in, the opening para of this judgment, Revision Petition placed before this Bench. Arguments heard and record perused.

14. Learned counsel for the petitioner after taking me through the pleadings and evidence recorded in the case vehemently argued that plaintiff-respondent No.1 had failed to perform the Talabs, particularly first two Talabs in accordance with section 13, N.W.F-P, Pre-emption Act, 1987, which being a sine qua non, his suit for possession through preemption is liable to dismissal. It was further argued that plaintiff-respondent No.1 has also failed to prove his superior right of pre-emption and thus the two Courts below besides other illegalities and irregularities have fallen into error both to law and facts on the question of talabs and superior right of pre-emption. Learned counsel after reading statement of P. W.6 Amanullah, the alleged informer, argued that in view of his statement, which is binding upon plaintiff-respondent, no decree could have been passed in his favour, provided the two courts had even a bird's eye view of the said statement.

15. As against that, learned counsel representing plaintiff-respondent No.1 argued that two courts below have on proper appraisal of evidence, and application of law drawn conclusions, which are concurrent in nature and that findings of first appellate Court on fact being final, call for no interference by this Court in its revisional jurisdiction. It was furthet argued that deficiencies and shortcomings in the statement of P.W.o Amnaullah are the result of slip of tongue or pen and are to be ignored. Learned counsel argued with vehemence that because of his conduct, petitioner Akhtar Ali is not entitled to any relief, particularly when earlier on the petition of Shakeel Akhtar, this Court and the august Supreme Court found nothing wrong with the concurrent judgments and decrees of the two courts below and according to the learned counsel the same attained finality.

16. Before dealing with the merits of the case, I would first take up the last argument of the learned counsel for plaintiff-respondent. In the revision petition before this Court and petition for leave to appeal before august Supreme Court of Pakistan, filed by Shakeel Akhtar, rights of the present petitioner and Muhammad Anwar plaintiff-respondent were never determined, m u chless in the presence of defendant-petitioner and thus the said judgments cannot be an obstacle for adjudicating rights of the parties in this civil revision petition. The objection is accordingly repelled.

17. No doubt, the conduct of the defendant-petitioner is not above board, but that cannot be made basis for passing a decree in favour of plaintiff-respondent, as it is the plaintiff who irrespective of any weakness in defence has to prove his case in accordance with law.

18. On merits, particularly on the question of performance of `Talabs' and that too the first two, I am of the view that defendant-petitioner has a strong case and suit of the plaintiff-respondent No.1, liable to dismissal on that score alone.

19. Section 13, N.W.F.-P. Pre-emption Act, 1987 reads as under:-

"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-i-muwathibat;

(b) talb-I-Ishhad; and

(c) talb-e-khusumat.

Explanation: -

1. "Talb-i-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.

(i) "Talb-i-Ishhad' means demand by establishing evidence.

(ii) `Talb-i-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-i-muwathibat.

(3) [subject to his ability to do so, where] a Pre-emptor has made talb-e-muawathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge whichnever may be earlier, make talb-i-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 due 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-i- muwathibat under subsection (2) and talb-i-ishhad under subsection (3), he shall make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."

20. A bare reading of the aforesaid section would show that immediately on gaining knowledge of sale, in the same sitting (Majlis), a pre-emptor shall make a demand declaring his intention to exercise his right of pre-emption. This demand or declaration by him is known as 'Talb-i-Muwathibat'.

21. This is, however, not end of the matter, but soon thereafter and not later than two weeks of his gaining knowledge, he shall make `Talb i-Ishhad' by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgment due to the vendee, confirming his intention to exercise the, right of pre-emption.

22. In the instant case, plaintiff-respondent No.1 claim from the very beginning is that he being a `Shafi Jaar' and `Shafi Khaleet' got knowledge of the sale through Amanullah Khan on 4-12-1997 at 2-00 P.M, while sitting in his "Hujra" along with Itbar Khan and Noor-ur-Rehman, where he immediately pronounced his intention to pre-empt the sale and thereafter set notice "Talb-i-Ishhad" on 8-12-1997.

23. During the course of evidence he recorded his statement, where he stuck to his stand as taken in his plaint; produced informer Amanullah, who also in his examination-in-chief stated what had he been tutored but could not withstand the test of cross-examination and stood shattered. Then were produced Itbar Khan and Noor-ur-Rehman.

24. On what date, plaintiff-respondent got knowledge of the sale is a question which has to be answered first of all. According to plaint and 'entire evidence adduced by him, it was 4-12-1997 when he got knowledge and then on 8-12-1997 sent the notice registered A.D. Amanullah, the informer, is the real brother of the plaintiff-respondent No.1, who in his statement on oath stated that on 4-12-1997 at 2-00 P.M, he informed plaintiff-respondent about the sale, who immediately declared his intention to pre-empt the sale. This witness, however, in his cross-examination, stood completely shattered, which is reproduced hereunder for sake of ready reference:---

25. This statement of a very important witness produced by plaintiff-respondent thus makes it clear without leaving anything to be doubted that it was on 18-11-1997 and not 4-12-1997 when plaintiff got knowledge of the sale, thus his claim of making of `Talb-i-Muwathibat' immediately on gaining knowledge falls to the ground.

26. Similarly, he was required to make `Talb-i-Ishhad' within two weeks of his making `Talb-i-Muwathibat' but 8-12-1997, on which date he claim to have made the said `Talab' in no case falls within two weeks of 18-11-1997.

27. What is the effect of aforequoted statement of Amanullah and how for it is binding upon plaintiff-respondent has been answered by august Supreme Court of Pakistan, in a somewhat similar situation in the' case of "Fazal Subhan and 11 others v. Mst. Sahib Jamal and others" PLD 2005 SC 977, where their Lordships at page 985 held as under: --

"The statement of witness on a fact contrary to the pleading of the party which Produced him in the Court, is not as such an admission of that party on such fact but the statement of such witness would be binding on such party. In the present case, we find that Fazal Qadir (P.W.6) has clearly stated that prior to his conveying the information to the pre-emptor about the sale, he had already information about the transaction and thus the pre-emptor having not re-examined the witness, impliedly conceded the knowledge of sale prior to 8-8-1990. In these circumstances, the petitioners-pre-emptor cannot get benefit of judgment rendered in Noor Muhammad v. Abdul Ghani 2000 SCMR 329".

28. The law so settled by the Honourable apex Court fully applies to the case in hand.

29. Unfortunately in the instant case, trial Court read out the examination in chief of the witness, namely, Amanullah and totally omitted from consideration his cross-examination. This can be found on page 7 of the trial Court judgment in his joint discussion on issues Nos.5, 6, 8 and 10 and not on relevant issue No.7.

Similarly, the appellate Court, through being the last Court on facts except for the following neither appraised the evidence, nor recorded findings.

"13. Plaintiff has not only proved `Talabs', as required under the law, but has also established his superior right of pre-emption."

31. Such an approach and disposal by senior Judicial Officer of the level of District Judge besides being violative of the law governing disposal of first appeals under order LXI, C.P.C., can hardly be termed to be judicial disposal and approved of.

32. Since I have held the plaintiff-respondent No.1 to have not performed the first two `Talabs' in accordance with law, which are sine qua non for maintaining a suit for pre-emption and their non-performance extinguishes the right, if any. Thus there is no need to take up other issues for discussion.

33. Accordingly, on acceptance of this revision petition, the impugned judgments and decrees of both the Courts below being based on mis-reading, non-reading of evidence, result of illegal and irregular exercise of jurisdiction, are set aside and suit of plaintiff-respondent No.1 dismissed, leaving the parties to bear their own costs. All Miscellaneous applications including Review Petition stand disposed of.

H.B.T./68/P Petition accepte