SHER BAHADAR KHAN Versus SHARIF ULLAH
SYED ARSHAD ALI, J. ---Sher Bahadar Khan, the petitioner who was plaintiff before the trial Court, through the instant revision petition, has called into question the consolidated judgment and decree of the learned Appeal Court dated 24.9.2011, whereby the learned Appeal Court while allowing the appeal of the respondent/defendant has set aside the judgment and decree of the learned trial Court dated 22.05.2010 decreeing the suit of the petitioner for pre-emption, and dismissed the suit of the petitioner.
2. Brief but essential facts of the case are that on 21.10.2006, petitioner/plaintiff Sher Bahadar Khan had instituted Suit No.228/1 of 2006 for possession of the suit property by exercising his right of pre-emption. It is averred in the plaint that the suit property was purchased by the defendant No.1 from the defendant No.2 in lieu of Rs.150,000/-. It is further averred in the plaint that on 18.10.2006 (Wednesday) at 2 O'clock, he was informed at his shop situated at People Chowk, Malak Market, Mingora, by Riaz Ahmad (PW-6) in presence of Syed Badshah (PW-7) regarding the disputed sale transaction, hence, in the said majlis, he made the jumping demand by expressing his intention to pre-empt upon the suit transaction, therefore, thereafter he sent notice talb-i-Ishhad to the defendant No. l/vendee.
On being noticed, the respondents/defendants have filed their written statement, thereby denying the contents of plaint. The divergent pleadings of the parties were reduced by the learned trial Court into the following issues:
Accordingly, the parties were provided an opportunity to produce their respective evidence.
3. The petitioner/plaintiff produced Nazir Ahmad, postman as PW-1, who has stated that he has personally delivered the registered AD regarding the notice talb-i-Ishbad to the respondent/defendant No.1. The witness has owned signature on the receipt and AD card. Rustam Khan, petition writer, appeared as PW-2, who has stated to have drafted the notice of talb-i-Ishhad whereas Akbar Ali Khan, Advocate who has notarized the notice talb-i-Ishhad has appeared as PW-3. Similarly, Tajdar Khan Patwari Halqa has appeared as PW-4, who has produced the relevant revenue record as Ex.PW4/1 and Ex.PW4/2, showing that the present petitioner/plaintiff is a contiguous owner to the suit property. The petitioner namely Sher Bahadar Khan, who being the witness of talb-i-ishhad and talb-i-muwathibat has himself appeared as PW-5 whereas Riaz Ahmad, the informer was produced as PW-6. He has also produced Syed Badshah, another witness of talb-i-muwathibat as PW-7 and thereafter closed his evidence.
4. In defence, the respondent/defendant No.1 Sharifullah himself has appeared as DW-1 while Zahir Karam, the vendor/defendant No.2 has appeared as DW-2. The defendants have also produced Tariq as DW-3 and Sher Muhammad as DW-4, in support of their claim.
5. After hearing the parties, the learned trial Court has decreed the suit vide judgment and decree dated 22.05.2010.
Both the parties have challenged the findings/judgment and decree of the learned trial Court before the learned Appeal Court through their separate Civil Appeals Nos. 63/13 and 69/13 of 2006. The petitioner/plaintiff has challenged the findings of the learned trial Court to the extent of the market value of the suit property, whereas the respondent/defendant has challenged the entire judgment and decree of the learned trial Court.
The learned Appeal Court vide its consolidated judgment and decree dated 24.09.2011 while accepting the appeal of the respondent/ defendant has confirmed the findings of the learned trial Court qua the issue of talbs, however, has held that the impugned sale transaction was not a complete sale at the time of filing suit by the petitioner/plaintiff, therefore, while considering the suit of the plaintiff as pre-mature has dismissed the same. Similarly, the learned Appeal Court has confirmed the findings of the learned trial Court regarding the market value of the suit property.
The petitioner/plaintiff being aggrieved of the judgment and decree of the learned Appeal Court has approached this Court through the instant revision petition.
6. Arguments heard and record of the case was perused with the able assistance of learned counsel for the parties.
7. Since, the learned Appeal Court has confirmed the findings of the learned trial Court on the issues of the preferential right of purchase of the petitioner/plaintiff as well as performance of the three essential talbs, therefore, the said findings are not disputed before this Court.
8. Indeed, the following two issues have been raised by the petitioner/plaintiff in this petition for determination of this Court.
1. Whether the disputed transaction was a sale within the meaning of the Khyber Pakhtunkhwa Pre-emption Act, 1987 ("Act") and thus the suit of the plaintiff was premature?
2. Whether both the learned Courts below have properly appreciated evidence regarding the market value of the suit property?
First, I will address the issue No.1 regarding the disputed transaction as to whether it was a complete sale in terms of the Act.
The word sale has been defined in section 2(d) of the Act, as follows:
"Section 2(3)..."Sale". Term 'sale' has been defined in S.2(d) of North-West-Frontier Province Pre-emption Act, 1987, as under:
(d) "Sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hibba-bil-iwaz or hiba-bi-shart al-iwaz but does not include: i. ------------"
The perusal of the aforesaid definition of sale would clearly show that the legislature has, with certain intents, deviated from the definition of sale as provided in the Transfer of Property Act, 1882, and this deviation appears to be purposeful for the reason that the right of pre-emption is a very feeble right, which will extinguish, the moment, when the person possesses this right but does not perform talb-i-muwathibat i.e. immediate demand by a pre-emptor in the sitting or meeting, in which, he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Thus if I assume that the pre-emptor has to first make an inquiry about the completion of transection of sale and thereafter shall exercise his right of pre-emption then I am afraid that delaying the performance of talb-i-mawathibat that is immediate demand till completion of such inquiry would defeat his right of pre-emption. This intention of the law maker is further obvious from the contents of section 31 of the Act, which provides a period of limitation for filing a suit to enforce the right of pre-emption under the Act. For ready reference, section 31 of the Act is reproduced as follows:
"31. Limitation.- The period of limitation for a suit to enforce a right of pre-emption under this Act shall be one hundred and twenty-days from the date.- a) Of the registration of the sale-deed; or b) Of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or c) On which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or d) Of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c)."
9. Thus, the basic ingredient of a complete sale for the purpose of Pre-emption Act would be the transfer of possession by vendor in exchange of consideration and once the consideration is received, the sale becomes complete. However, this definition cannot be given a uniform meaning in terms of section 13 of the Act because, as stated above, if the pre-emptor has to undertake an inquiry before exercising his right of pre-emption i.e. talb-i-muwathibat, thenS his right to pre-empt would be defeated because under section 13 of the Act, he has to make a jumping demand, at the moment, he receives the information of sale. This issue has been elaborated dealt with by the august Supreme Court of Pakistan in the case of 'Muhammad Nazeef Khan v. Gulbat Khan and others' (2012 SCMR 235) as following:
"The said definition of "Sale" becomes relevant when controversy arises as to whether or not the property in question was sold, conferring right of pre-emption on the pre-emptor/ plaintiff. The fulfilment or otherwise of the two conditions mentioned in section 2(d) of the Act, however, may not be relevant in the context in which the word "Sale" in subsection (3) of section 13 of the Act has been used. The latter provision mandates the pre-emptor to make immediate demand in the same sitting or meeting in which he acquires knowledge of the sale. This stringent provision does not allow the preemptor to postpone the making of Talb-e-Muwasibat in order to make further inquiry or probe as to whether or not the sale was complete in all respects. The Talb is to be made regardless of the credibility of the information. The pre-emptor may never be able to find out about the completion of the sale until the commencement of the proceedings in the suit for pre-emption or, at times, upon its conclusion when the Court finally determines the question, if the same was in issue. This possibility is aptly demonstrated by the facts of the present case when it was disclosed for the first time during the recording of evidence of the vendee/defendant that the sale consideration was paid by the vendee at the time of attestation of mutation. A pre-emptor may never know when, if at all, sale consideration was paid to the vendor. If the word "Sale" in section 13 is given the same meaning as its definition in section 2(d) it would negate the very essence of the mandatory nature of the former provision requiring the pre-emptor to make immediate Talb-e-Muwasibat upon learning of the sale. The expression 'Sale' in the two statutory provisions is used in entirely different context. The definition of sale in section 2(d) cannot be applied to the same expression used in section 13 of the Act and the pre-emptor is obliged to make the talb regardless of whether the conditions laid down for completion of sale have been fulfilled. As the appellant had delayed the making of talb till attestation of the sale mutation, his suit was rightly dismissed."
10. In the context of the present case, the vendee has purchased the suit property through an unregistered agreement to sell dated 06.9.2006 (Ex.DW1/1). According to this agreement to sell, the defendant/vendor Zahir Karam has old the suit property measuring 2952 feet @ Rs.320 per foot, in lieu of total consideration of Rs.944,640/-. In order to fully understand that whether it was a complete sale for the purpose of the Act, the agreement to sell is reproduced as under:
According to this agreement, the vendor has received an amount of Rs.144,640/- as cash whereas the remaining amount through two cheques. The defendant/vendee in his written statement has not raised any objection that the disputed transaction was not a complete sale on the day of execution of the agreement. In this regard, Para No.1 of his written statement is reproduced as under:
From the perusal of the sale deed, written statement and evidence produced by the parties, it appears that this transaction was a complete sale in terms of section 2(d) of the Act, which is a transfer of ownership of the immovable property in lieu of a valuable consideration. Indeed, it is not the case of the vendee/ defendant that on the day of execution of the deed, the entire consideration was not paid. Once this factual plea that the sale in question was not a complete sale was not raised in the written statement, then the defendant is barred to raise this plea at later stage. In this regard, reliance can be placed on the law laid down by the august Supreme Court of Pakistan in case of 'Muhammad Inayat v. Fateh Muhammad and others' (PLD 2004 SC 778).
11. Moving to the application of the law laid down by the august Supreme Court of Pakistan an in case of 'Abdul Nasir v. Haji Said Akbar' (2010 SCMR 1770). In my humble view, the law laid down in the said case has been incorrectly relied upon by the learned Appeal Court, as the facts and circumstances of the said case are distinguishable. In the said case, the disputed transaction was only an agreement to sell and it was expressly provided in the said agreement to sell that a proper sale deed will be executed after payment of the balance consideration, whereas no such a covenant exists in the disputed transaction dated 06.09.2006. Thus, the findings of the learned Appeal Court that it was not a complete sale, are not tenable and accordingly deserve to be set aside.
12. Moving on to the 2nd issue i.e. the determination of the market value of the suit property. The market value of the suit property has been expressly provided in the disputed agreement to sell as Rs.944,640/-. The vendor Zakir Karam himself has appeared as DW-2 before the learned trial Court and has confirmed this price/sale consideration of the suit property. The petitioner/plaintiff could not rebut this amount by producing any confidence inspiring evidence. Although, he has placed on file one year average rate, however, the said document was neither exhibited from the concerned official nor the said one year average rate can be given any preference over the disputed instrument wherein the sale consideration has been cited in unequivocal terms. Thus, the findings of both the learned Courts regarding the determination of the market value of the suit property are not open to any exception.
13. In view of the above discussion, I partly allow this revision petition by holding that the disputed transaction was a complete sale in terms of section 2(d) of the Act and accordingly to this extent set aside the impugned judgment and decree of the learned Appeal Court dated 24.09.2011 by restoring the judgment and decree of the learned trial Court dated 22.05.2010. Accordingly, the petitioner/plaintiff shall deposit the remaining amount of sale consideration within a period of 30 days from receipt of this judgment, failing which, his suit shall be deemed to have been dismissed. The parties shall bear their own costs.
ZC/118/P Revision allowed.