KALA KHAN Versus AYUB KHAN

Ayub Khan, respondent herein, filed a suit in the Court of Civil Judge, Haripur against petitioner Kala Khan and obtained a decree for possession through pre‑emption of a certain agricultural land on 4‑3‑1989. An appeal taken by the vendee‑defendant before the Additional District Judge was dismissed on 4‑7‑1989. Hence this petition under section 115, C.P.C.

2. I have heard at length Syed Abdus Salam Sarwar, Advocate on behalf of Kala Khan petitioner and Mr. Saleh Mahmud Advocate for the plaintiff‑respondent. It is the finding of the learned two Courts below on Issue No.4 which has been assailed before me on behalf of the vendee‑defendant. It would tie as such appropriate to reproduce here the text of issue No.4 as settled between the parties during trial of the suit which is to the following effect:‑‑‑

"Whether notice issued to the defendant is not proper and in accordance with existing law of pre‑emption?"

3. On the enforcement of Act, X of 1987 the North‑West Frontier Province Pre‑emption Act, 1987 the right of pre‑emption of a person unless such person makes demands of pre‑emption in the manner provided under section 13 of the Act ibid is said to have extinguished. A person who intends to pre‑empt a sale transaction by enforcing his right of pre‑emption shall make an immediate demand 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 technically called "Talb‑i‑Muwathibat". He shall be thereafter required to make the demand of "Talb‑i‑Ishhad" by establishing evidence as soon as possible but not I later than two weeks from the date of notice under section 32 of the Act or knowledge whichever may be earlier, by sending a notice in writing attested by two truthful witnesses to the vendee under registered postal cover with acknowledgement‑due confirming his intention to exercise the right of pre -emption. In an area where due to the lack of postal facilities if it is not possible for a pre‑emptor to send a registered notice, he may make "Talb‑i‑Ishhad" in the‑ presence of two truthful witnesses. Then comes the demand for "Talb‑e- Khusumat" whereby a pre‑emptor after having satisfied the requirements of the aforesaid two "Talbs" shall make. "Talb‑e‑Khusumat" by filing a suit in a competent Court for enforcing his right of pre‑emption. The evidence adduced on the issue would indicate, that after the sale transaction and attestation of the impugned mutation when the petitioner started making interference in the land purchased the respondent went to the office of the village Patwari on 13‑9‑1987 and obtained a copy of the record of rights and thereby got knowledge of the transaction. He immediately made announcement of his intention to lodge a pre‑emption suit against the vendee. Thereafter within a period of two weeks he sent a registered notice by post to the vendee defendant with acknowledgement due as required by section 13(3) of Act X of 1987. A photo copy (Exh.PW.2/1) of the impugned notice has been placed on the record of the trial Court. It shows that a notice carrying the demand for "Talb‑i‑Ishhad" duly attested by two truthful witnesses of the area had been sent by the pre‑emptor to the vendee on 21‑9‑1987 on the home address through his counsel, Mr. Muhammad Yaqoob Awan, Advocate. The notice reads that the respondent got knowledge of the suit transaction on 13‑9‑1987 and immediately made "Talb‑i‑Muwathibat" and thereafter "Talb‑i‑Ishhad" within the prescribed period in the manner aforesaid. The learned counsel on reading para. No.4 of the notice endeavoured much to build up a case, that the respondent did not make immediate pronouncement of "Talb‑i‑Muwathibat" when the fact of sale came to his knowledge and placed reliance in his context on para. No.4 of the notice that the plaintiff had made "Talb‑i‑Muwathibat" a week before the date of notice meaning thereby, that he made "Talb‑i-Muwathibat" on 15‑3‑1987 and not on 13‑3‑1987 when the factum of sale came to his knowledge. This phrase mentioned in para. No.4 in no way signifies that sense. On the contrary if one reads cojointly paras. Nos.3 and 4 this would become quite evident, that the respondent gained knowledge of the sale transaction on 13‑9‑1987 when he visited the office of the Patwari and made an immediate pronouncement on that very day of his intention to exercise the right of pre‑emption. The writing of the word "one week in para. No.4 of the notice indicates the same thing.

4. It was also argued that the respondent in fact had knowledge of the impugned transaction on 17‑3‑1987 and in support thereof an attested copy of an application in the name of Muhammad Ayub plaintiff was placed on the file of the trial Court which the respondent had allegedly moved for issuing him a copy of the suit mutation. This document has not been produced and exhibited in evidence of the respondent during trial. Not only this, copy of the application was although obtained by the petitioner‑defendant on 30‑9‑1987 and was in his possession when he filed written statement in the suit on 21‑11‑1987 but did not mention this important fact in his pleadings. He did not again write anything about this application in his list of evidence and witnesses filed subsequently. No efforts were also made for pressing this document into service when evidence of the petitioner was recorded which consisted of his own solitary statement. The document with this background cannot be considered in evidence at this stage and particularly so when it has not been proved in accordance with law. No original was produced in Court nor any efforts made to prove that it was the respondent and none also who moved this application before the Copying Department on 17‑3‑1989. The defendant‑ g petitioner has, therefore, failed to establish the accusation that the plaintiff was the author of the aforesaid application and he had knowledge of the transaction on the said date. The learned counsel next argued, that the plaintiff could not send a notice of "Talb‑e‑Ishhad" through a counsel. This argument is of no avail. Section 14 of the Act ibid speaks of demands made by a guardian or agent. It states that where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf. The word "agent" has been defined in Chambers' 20th Century Dictionary (New Edition) at page 21 as, "one authorised or delegated to transact business for another" and it definitely includes a law agent or a lawyer. The plaintiff being an illiterate village person and not conversant with the technicalities of law if engaged a counsel and sent a notice to the vendee confirming his intention to exercise the right of pre‑emption there could hardly be any harm.

5. In this background of the case I find, that the pre‑emptor (Shafee) did make an immediate claim of "Talb‑i‑Muwathibat" at the moment he learnt of the sale on 13‑9‑1987 and thereafter within two weeks sent a written notice carrying the demand for "Talb‑i‑Ishhad" to the vendee attested by two truthful witnesses under registered postal cover with A.D. on his correct home address confirming further his intention to exercise the right and there is no cogent evidence to the contrary that these demands were either delayed or deficient. The two forums below have thus made findings in the decision of issue No.4 which are based on evidence and cannot be said to have acted in the exercise of jurisdiction illegally or with material irregularity. Finding no force in this petition I shall dismiss it with costs.

AA./1404/P Revision dismissed.