Haji MUHAMMAD AFZAL Versus MUHAMMAD ZAHID

SAID MAROOF KHAN, J.--- One Ghulam Yasin was the owner of land measuring 7 Kanals, 10 Marlas situated in the limits of Village Paroa, District D.I. Khan and he sold it to Muhammad Zahid for an ostensible sale price of Rs.45;000 vide sale Mutation No.2675 attested on 21-4-1993. The sale was pre-empted by Haji Muhammad Afzal who instituted pre-emption suit in the Civil Court at D.I. Khan. Muhammad Zahid vendee submitted his written statement and contested the suit mainly on the ground that the pre-emptor had not fulfilled the requirements of Talb-e-Muwathibat and Talb-e-Ishhad in accordance with the provisions of section 13, N.-W.F.P. Pre-emption Act, 1987.

2. After recording such evidence as the parties wished to adduce for and against the learned Civil Judge-V, D.I. Khan decreed the suit in favour of the pre-emptor vide judgment, dated 30-11-2001. On appeal the learned District Judge, D.I. Khan came to the conclusion that since the date, time and place of `Talb-e-Muwathibat' were not mentioned in the plaint, the suit could not succeed and consequently he set aside the judgment and decree, dated 30-1 L-2001 of the learned Civil Judge and dismissed the suit vide his judgment, dated 31-10-2003. Feeling aggrieved the pre-emptor filed the instant revision petition.

3. Malik Muhammad Jehangir Awan learned counsel for the pre emptor-petitioner contended that the performance of Talb-e-Muwathibat and Talb-e-Ishhad was specifically pleaded in the plaint in general terms and also proved through oral as well as documentary evidence, therefore, the pre-emptor petitioner could not be non-suited on the only ground that the date, time and place of Talb-e-Muwathibat were not disclosed in the plaint.

4. The contention of learned counsel for the pre-emptor-petitioner is devoid of substance. The date, time and place of performance of `Talb-e-Muwathibat' and acquiring knowledge about the sale transaction has to be specified in the plaint because without such disclosure it would be difficult to determine as to whether `Talb-e-Muwathibat' was in fact made by the pre-emptor soon after getting the knowledge of sale and in the same sitting where he acquired the knowledge of the transaction. Another reason for disclosure of the above material fact in the plaint is that the time of `Talb-e-Ishhad' has to be counted from the date of 'Talb e-Muwathibat'.

5. Even otherwise the evidence produced by the. pre-emptor-petitioner is also not indicating that Talb-e-Muwathibat was performed in accordance with the provisions of N.-W.F.P. Pre-emption Act, 1987. The testimony of the pre-emptor (P.W.7) with regard to performance of Talb-e-Muwathibat is inconsistent with the statement of the alleged informer Haqnawaz (P.W.8). The pre-emptor alleged in his statement that Haqnawaz (P.W.8) had informed him about the sale transaction on 27-4-1993 at 9/10 a.m. and that at the same time he performed Talb e-Muwathibat in the presence of the informer. On the contrary, the alleged informer (P.W.8) deposed that he had informed the pre-emptor at noon. Further deposed that in fact at noon time he had gone to the house of vendor, stayed there for 2/3 hours and then went to the house of pre-emptor and told him about the sale transaction. In view of the above contradiction regarding time of Talb-e-Muwathibat the petitioners' version as to performance of Talbs could not be relied upon. It appears that Talb-e-Muwathibat was not at all performed according to the requirements of law.

6. Since the pre-emptor-petitioner had not mentioned the date, time and place of Talb-e-Muwathibat in his plaint and the evidence produced by him was also not establishing the performance of Talbs in accordance with the provisions of section 13, N.-W.F.P. Pre-emption Act, 1987, the learned District Judge had rightly dismissed the suit. The impugned judgment is not suffering from any illegality or material irregularity calling for interference by this Court in revision. This revision petition being without substance is hereby dismissed, leaving the parties to bear their own cost.

H.B.T./197/P Revision petition dismissed.