Mst. GULA JANA Versus BANARAS (Deceased) through Legal Heirs
MOHAMMAD IBRAHIM KHAN, J.--- In exercising her right of pre-emption Mst. Gula Jana introduced suit for possession through pre-emption pertaining to land measuring 01 Kanal 09 Marla out of 16 Kanal 12 Marla when the sale activity was given effect through mutation No.5641 attested on 11.03.2005. This sale was for an amount of Rs.87,000/- but inflated amount of Rs.1,45,000/- was entered and denied. After making the performance of Talb-e-Muwathibat followed by Talb-e-Ishhad, the requirement of Talb-e-Khusumat was carried on 07.07.2005.
2. This claim was hotly resisted by the respondents by filing their joint written statement opposing the grant of decree on various legal and factual objections raised therein.
3. The pleadings of the parties were drawn into the following issues.
ISSUES
1. Whether the plaintiff has got cause of action?
2. Whether the suit is competent in its present form?
3. Whether the suit is within time?
4. Whether plaintiff has fulfilled requirements of Talbs in accordance with section 13 of the N.W.F.P. pre-emption?
5. Whether the plaintiff has superior rights of pre-emption?
6. Whether the sale amount mentioned in the impugned sale deed is correct and actually paid?
7. What is the market value of the suit property?
8. Whether the plaintiff is entitle to the decree as prayed for?
9. Relief.
4. Mst. Gula Jana petitioner herein, to prove her claim examined PW-1 Patwari Halqa Raz Muhammad, PW-2 Muhammad Afzal Clerk Post Office, Peshawar Kachehri, PW-3 Fazl-e-Mula ADK, Peshawar. She herself stepped forward as PW-4 and in her support Afeeyat Khan was examined as PW-5, Ismail Khan as PW-6. The respondents in the trial before learned Civil Court examined DW-1 Muhammad Anwar Meter Reader, Mehrab-ud-Din DW-2, Johar Ali DW-3, Daasht Khan DW-4, Habib Rasool DW-5 and Muhammad Zaman DW-6.
5. This suit was at first instance decided through judgment dated 17.02.2011 by the Court of learned Civil Judge-XI, Peshawar. The relief under issue-wise findings for want of failure of proof whereafter Civil Appeal No.20/13 of 2011 was preferred before the Court of Additional District Judge-I, Peshawar which also stood dismissed.
6. Having heard arguments of learned counsel for the parties, the record delved deep into with their assistance.
7. Admittedly the plaintiff/petitioner being real sister of the vendors and as per Jamabandi for the year 2000-2001 and 2004-2005 is co-owner. The defendants/ respondents have become owner through impugned sale mutation No.4641 dated 11.03.2005, thus having preferential right and having a cause of action to seek pre-emption so is optimistic for grant of decree. There is no dispute between the parties under competency of the present form of suit. As far as the market value and the sale amount mentioned in the impugned sale deed pertaining to, no arguments have been advanced before this Court to fix any other amount rather than Rs.1,45,000/- to be its correct valuation.
8. After hearing learned counsel for the parties and while the findings under the impugned judgments have gone through, the failure of the petitioner for her claim has mainly focused on that Mst: Gula Jana has been unable to perform Talb-e-Muwathibat in due course of time of coming into knowledge about the sale learning from her husband Afeeyat Khan. He has later been examined as PW-5. While placing reliance on 1996 CLC 902 Arif Hussain v. Abdul Qayoum, 2000 CLC 252 Sher Ahmad v. Murtaza Khan, 2011 CLC 578 Mst: Chand Sanoober v. Ghulam Noorani, PLD 2003 Peshawar 179 Yar Muhammad Khan v. Bashir Ahmad and 2009 SCMR 240 Muhammad Tariq v. Asif Javed, Mst. Gula Jana petitioner is a woman of advance age and is illiterate lady, therefore it cannot be expected from her to remember the moment occurring pertaining to Taib-Muwathibat of a specific date 05.07.2005 when her statement was recorded on 26.05.2009. Minor omission in the statement of a witness whose statement was recorded after sufficient time cannot mar the case of the petitioner as law does not favour to throwaway her, as pre-emptor just of mere technicalities. Her words that when she came into knowledge about the sale transactions are sufficiently indicative of her intention to enforce her right of pre-emption sufficient to prove the same. The performance of Talb-e-Muwathibat, there is no specific words which marked an explanation. Therefore the Talb-e-Muwathibat by Mst: Gula Jana is within its proper time and sufficiently proved. Reliance is placed on the judgments referred as (supra).
9. Repelling to the arguments learned counsel for respondents opposed these arguments.
10. As the issue of fulfillment of the requirement of Talbs in accordance with section 13 of the Khyber Pakhtunkhwa Act, 1987 is the only burning issue when the learned trial Court and the learned appellate Court of first instance have non-suited Mst: Gula Jana to exercise her right of pre-emption under a favourable decree, therefore this Court has seriously taken up this matter for a decisive findings. According to the statement of PW-4 Mst: Gula Jana in her examination in chief she tried to impress upon the performance of Talb-e-Muwathibat that when on 04.07.2005 at 10:00 AM her husband Afeeyat Khan came inside the house informed her about the sale transaction in favour of the respondents. She announced her willingness to pre-empt the same transaction and later on 05.07.2005 on Tuesday she sent her son to obtain copy of the mutation. Then on 06.07.2005 on following day i.e. Wednesday she came along with her husband Afeeyat Khan and Banoor Khan her son to the Court premises at Peshawar. There Talb-Ishhad notice was drafted and on the same day it was dispatched from Post Office Peshawar Kachehri.
11. While scrutinizing this fact the cross-examination of Mst: Gula Jana when particularly question has come with an answer:--
Even if at all the words appearing in her examination in chief are considered sufficient indicative of intention to exercise her right of pre-emption would not be sufficient when the mutation bearing No.5641 attested on 11.03.2005 and on learning after 20 days of the mutation being attested would come to 31st of March 2005. The requirement of Talb-e-Ishhad was then to have been sent through notice by 14th April 2005. The notice Ex.PW4/1 is dated 06.07.2005 which is not within stipulated period required between making of Talb-e-Muwathibat and Talb-e-Ishhad.
12. In order to find support the dictum reported in PLD 2008 Peshawar 137 Aisha Bibi v. Abdul Raoof, 1992 SCMR 1886 Zafar Ali v. Zain-ul-Abidin, 2004 CLC 1773 Afsar Ali Khan v. Shireen Gul and another, it has been very specifically emphasized that right of pre-emption being of a feeble right of a pre-emptor. Such right is exercised under the performance of Talb-e-Muwathibat, Talb-e-Ishhad and Talb-e-Khusumat which shall be carried within the ambit of limitation as required for each Talb.
13. Whatever be the date of performance of Talb-e-Muwathibat as this is a requirement when a pre-emptor seeking his right come into knowledge at a specific time and date after the sale has been effected. The requirement of Talb-e-Ishhad shall be complied within 14 days follow up of Talb-e-Khusumat within four months of the sale activity in the mode and manner from the date of exercising the right of pre-emption.
14. Mst. Gula Jana when coming into knowledge after 20 days of the sale transaction effected through mutation No.5641 attested on 11.03.2005, her efforts for sending notice under Talb-e-Ishhad not coming within the validated time would squarely leave her disentitle to a favourable decree of pre-emption.
15. This civil revision has no force, it is therefore dismissed.
ZC/71/P Revision dismissed.