NUSRAT KHURSHID Versus SHAH JEHAN

`Mst. Nusrat Khurshid has filed the instant revision petition with a prayer to set aside the judgments and decrees of the trial and appellate Courts, dated 11‑6‑1996 and 1‑2‑1999 respectively, whereby her suit and appeal were dismissed.

2. The short background of the instant case is that the petitioner filed a Civil Suit No.34/1 of 1994 whereby she pre‑empted a house purchased by the respondent on the basis of a registered sale‑deed, dated 30‑8‑1994. The` respondent resisted the suit of the petitioner on various legal and factual premises and pleading of the parties had begotten the following issues:‑

(1) .Whether the plaintiff has a cause of action?

(2) Whether the suit is competent?

(3) Whether the plaintiff by her own conduct and by the conduct of her husband is estopped to sue?

(4) Whether the suit is Benami?

(5) Whether the plaintiff has waived her right of pre‑emption?

(6) Whether the talabs have been validly made?

(7) Whether the plaintiff has superiour right of pre‑emption? '`

(8) Whether the suit is within time?

(9) Whether the suit property has been improved? ‑

(10) Whether the suit has been properly valued for the purposes'of court‑ fee?

(11) Whether the suit is partial?

(12) Market value?

(13) Relief?

3. After recording evidence of both the combatants, the learned trial Court vide his judgment and decree, dated 11‑6‑1996 dismissed the suit of the petitioner, chiefly on the ground of her failure to make the Talabs in accordance with law. Aggrieved by such a dismissal, the petitioner went in appeal before the learned District Judge, D.I. Khan which also failed and the learned District Judge while concurring with the findings of the learned trial Court with certain added discussion dismissed her appeal. Hence the. present revision petition.

4. Sardar Allah Nawaz Khan, the learned counsel appearing on behalf of the .petitioner while assailing the concurrent findings of the two Courts below has contended that the same are the outcome of misreading of evidence and, as such, are liable to be set aside. He contended that the sale of the disputed house took place on 30‑8‑1994 regarding which the suit was filed on 27‑9‑1994. He also submitted that the petitioner carne to know about the sale of the suit house on 4‑9‑1994 and on the same day when she was informed by Hameedullah at 'Aser time', she immediately declared her intention to exercise her right of pre‑emption qua the suit house in presence of Hameedullah who was subsequently appointed as special attorney and appeared as P.W.4 in this case and, as such, the petitioner made Talb‑e Ishhad. He further contended that the following day, i.e. 5‑9‑1994 a notice of Talb‑e‑Muwathibat was sent to the respondent through registered. A.D cover and thereby qualified the requirements of Talb‑e‑Ishhad. He was also critical of the findings of the two Courts below regarding the contradictory statements of the P.Ws. particularly that of PWA and stated that the minor contradictions in statements of the P. Ws. in pre‑emption cases cannot produce the effect of dismissal of the suit. , "

5. On the contrary, the learned counsel appearing on behalf of the respondent has defended the concurrent findings of the two Courts below for the reasons contained therein and submitted that the judgments and decrees of the learned lower Courts are well‑reasoned and there is no element of perversity, fancifulness, misreading or non‑reading of evidence.

6. 1 have heard the rival arguments of both the combatants and gone through record of the case with their valuable assistance. In cases of‑ pre emption, the requirements of law, i.e. section 13 of the N.‑W:F.P. Pre emption Act, 1987, is that Talb‑e‑Muwathibat (immediate jumping demand) and Talb‑e‑lshhad, i.e. affirmation of the pre‑emptor of his intention to exercise his right of pre‑emption by invoking the testimony of two truthful witnesses is imperative and is considered as a sine qua non for the enforcement of a right of pre‑emption. Failure in doing so would be a cause which produces the effect of extinguishing/invalidating the‑ right of pre emption. Thus, the pre‑emptor would be required to establish that he had carried out the purpose of law by making such demands in such a manner which is not incompatible with the relevant circumstances of the case. In other words, the relevant circumstances should not serve to visibly belie the claim of making the Talabs of the preemptor.

7. The suit of the petitioner was dismissed by the trial Court on the grounds, after perusal of the evidence, that the Talabs were not proved to have been made in accordance with law. To such findings, the learned appellate Court also agreed who has detailfully embarked upon the question of Talabs in paragraphs Nos.7 and 8 of his judgment and has given reasons for recording his findings against the petitioner resulting into dismissal of the appeal.

8. In order to resolve the controversy, it is to be seen .whether the requirements of Talabs were made by the petitioner in accordance with law, and whether the circumstances appearing in the evidence of the petitioner herself do not have the clear tendency of disbelieving the version regarding the making of Talb‑e‑Muwathibat. Regarding this score, my attention was drawn to .the statement of P.W.4, i.e. the special attorney for the petitioner, who has categorically mentioned in his statement that on 4‑9‑1994 when he was proceeding for his ' Aser Prayers' to the mosque, he was informed by the brother of respondent that the suit house was purchased by the respondent. Thereafter, he came to the house of the petitioner and informed .her about the sale transaction, on which she declared her intention of pre empting the same day. He was further directed by the petitioner that since her husband was in Abbottabad, therefore, he should act as an attorney for her and from tomorrow, i.e. 5‑6‑1994, the proceedings of pre‑emption be carried out. This witness further clarified the position in the following words:‑‑

9. The above narration of this witness shows that on 4‑9‑1994 no step of any kind was taken towards the proceedings of pre‑emption. It is also a significant feature of the case that this P. W . is an employee of Bank and banking hours, according to his own statement were, in those days, from 8‑00 a.m. to 4‑00 p.m. and the timings of other Government Offices, according to him, were froth 8‑00 a.m.. to 2‑00 p.m. This part of the statement of P. W .4 has a far‑reaching effect upon the truthfulness of the claim of the petitioner regarding making Talb‑e‑Muwathibat.

10 D.W.1, Muhammad Aslam. Registry Moharrir, produced the copy of application of the petitioner (EXh.D.W.I/1) for the purpose of getting a certified copy of the sale‑deed.. This application is, dated 4; 9‑1994 ‑and the stamp ticket affixed thereon is also of the same date. The stamp paper meant for obtaining the copy of the sale‑deed valuing Rs. four was also of the same date. All these facts show that the petitioner has filed the application and purchased the ticket alongwith the stamp paper on 4‑9‑1994 during the office hours, and the office hours, according to the statement of the P.W.4 of the Government Departments,‑were from 8‑00 a.m. to 2‑00 p.m. which is an eloquent indicator to the fact that at the time of filing of application or prior, thereto, the petitioner had obtained the knowledge regarding the sale and, as such, the .statement of the petitioner that she was informed on 4‑9‑1994 at Aser time' is totally belied by the documentary evidence lying on the record. Thus, the claim‑of the pe4itioner that she made Talb‑e‑Muwathibat immediately after gaining knowledge of the salt; is completely incompatible with the documentary evidence. It makes; thus, clear that she was wrong in saying that she got the information of sale on 4‑9‑1994 but in fact she had obtained the knowledge. about sale earlier to 4‑9‑1994 and no Talb‑e- Muwathibat was made.

11: Another feature of the case of the petitioner is that according to the statement of P.W.4, the power of attorney was executed first and the notice was prepared and signed by him and the witness subsequent to the preparation of power of attorney. This is further belied by the contents of the register of the deed writer which is Exh.P.W.7/D.1. On this exhibit at serial No.902, the entry regarding the factum of notice of Talb‑e‑Ishhad from petitioner to the respondent is shown, while the entry regarding the power of attorney was shown at serial No.905‑A, which is discordant with the statement of P.W.4 and it clearly suggests that the notice preceded the power of attorney.

12. Since Talb‑e‑Muwathibat is the basis on which further proceedings are dependent and if this first Talab lis not proved, obviously the second B Talab would have no footing and the non‑proving of the first Talab dissolve the effect of the second Talab, i.e. Talb‑e‑Ishhad. Thus, in the above circumstances, it is evident that the necessary requirement of Talb‑e -Muwathibat was not complied with, which of course, produces the effect of invalidating the right of pre‑emption.

13. For the reason stated above and the conclusion drawn by me. I feel myself supported by a judgment of this Court in Civil Revision No.39 of 1993, captioned' as Ramzan and others v. Najeebullah Khan and others, decided on 13‑9‑1993, wherein his lordship Mr. Justice Qazi Muhammad Farooq J, while dismissing the revision petition in limine, in paragraph No.2 of his judgment, has observed as follows:‑‑

"It is‑evident from the certified copy of the sale mutation under pre‑emption (Exh.P.W.5/2) annexed with the plaint, that the petitioner had obtained the same on 13‑2‑1988. In this backdrop there can be no cavil with the proposition that the petitioner had come to know of the sale transaction on 13‑2‑1988 and as such, he ought to have made ' Talb‑e‑Muwathibat' on 13‑2‑1988 but he postponed it to 14‑2‑1988. Reference in this context may be made to Zafar Ali v. Zainul Abidin 1992 SCMR 1886 wherein it has been observed that Talb‑e‑Muwathibat' has to be made before the dispersal of ' Majlis' in which the plaintiff' gains the knowledge about the sale. In that case, the pre‑emptor had come to know of the sale on 12th or 13th August, 1988 but had made ' Talb‑e‑Muwathibat' on 16th August, 1988 after obtaining a copy of the sale mutation .... "

14. In these circumstances, I do not find any element of misreading or non‑reading or perversity in the impugned judgments and the same are based on sound reasons, which do not call for any interference by this Court in C exercise of its revisional jurisdiction under section 115, C.P:C.

15. As a corollory of the above discussion, this revision petition being devoid of any meritable consideration is hereby dismissed.

Q.M.H./M.A.K./110/P Petition dismissed.