SAID GHANI Versus SHER RAHMAN
MOHAMMAD IBRAHIM KHAN, J.--- Here is this Civil Revision with the prayer:-
"It is, therefore, humbly prayed that with the acceptance of the instant Revision Petition, both the impugned judgments and decrees mentioned above may please be set aside and the suit of the petitioner/Plaintiff be decreed as prayed for. Any other relief which is just, appropriate and efficacious may also be awarded though not specifically prayed for, but the interest of the justice demanded so."
2. The Court of learned Civil Judge-II/Illaqa Qazi Buner at Dagger by its ultimate findings in the judgment and decree dated 03.12.2014 dismissed the suit bearing No. 249/1 of the year 2013 titled as ' Said Ghani v. Sher Rahman and others '.
3. Next off, the matter was taken up before the Court of learned District Judge/Zila Qazi Buner at Dagger while maintaining findings in the judgment and decree of the learned Civil Court, dismissed the appeal bearing No.75/13 of the year 2014 on 20.06.2015.
4. By introducing the suit for obtaining possession through exercising the right of pre-emption, it was with regard to sale in Khatta Khatooni No.268/319 bearing Khasra No.792 land measuring 28 kanals 6 marlas, out of which 2 kanals were settled for this sale according to the Fard-Jamabandi for the year 2010/2011 situated within territorial jurisdiction of Mauza Batai Gadezai District Buner. This piece of land was purchased by Sher Rahman for an amount of Rs. 600,000/-through oral sale acknowledged in the statement of Shah Wali Khan son of Sher Rehman, Respondent No. 1 under an affidavit. Suffice it to say, that the parties had entered mutation No. 2018 but due to lack of interest the same was rejected. The statement of PW-1 Syed Ali Shah Office Qanungo and in the remarks column of the jamabandi for the year 2010/2011 and the contents of mutation are evident to, however, possession of the suit land was transferred. The Plaintiff herein the Petitioner considering himself able to pre-empt this sale transaction holding the right to be Shafi Shareek, Shafi Khaleet and Shafi Jar in order to fulfill the conditions as laid down in Section 13 of the Khyber Pakhtunkhwa Pre -emption Act, 1987 made the demands of pre -emption in its order:- i. Talb-i-Muwathibat ii. Talb-i-Ishhad iii. Talb-i-Khusumat
5. This suit was hotly contested by the Defendants 1, 2 and 4 (hereinafter called the Respondents) raising various legal and factual objections. The learned Civil Court on the basis of averments taken in the pleadings of the parties framed the following issues:-
It is very much significant to mention here that the plaint was amended for want of impleadment of Zar Wali Khan, Sher Raees Khan, Mst. Jehan Ara and Mst. Khan Khaila, amongst whom Mst. Jehan Ara had sold out this piece of land measuring 2 kanals in favour of Sher Rahman, the Respondent No. 1 herein.
6. According to the list of witnesses being furnished, the parties examined their respective witnesses. On behalf of the Plaintiff (herein the Petitioner), Said Ali Shah O.Q. Dagger appeared as PW-1, Fawad Ali Shah Halqa Patwari as PW-2, Fazal Rahim postman as PW-3, the Plaintiff/Petitioner Said Ghani as PW 4 and in his support the witnesses of notice of Talb-i-Ish'had PW-5 Abdul Baqi Khan and PW-6 Sher Muhammad Khan were also examined. After closure of the evidence on behalf of the Plaintiff (herein the Petitioner) the witnesses of the other part were also given chance to prove their stance as alleged in the written statement, therefore, Fawad Ali Shah Halqa Patwari appeared as DW-1, Shah Wali Khan as DW-2 and Zar Wali Khan as DW-3.
7. By the judgment contained in suit No. 249/1 of the year 2013 the decision was followed under the findings on 03.12.2014 whereby for all the reasons mentioned therein particularly under issue No. 7 which reads as OPP? , the Plaintiff (herein the Petitioner) was non-suited as altogether no fault was pointed out with regard to making of Talb-i-muwathibat and the suit being held within time presented not over the span of 120 days, but because of the following findings the Plaintiff (herein the Petitioner) was not held entitled for the decree of pre-emption as prayed for:-
Whereas there is no such findings under any issue nocuous for restraining the Plaintiff (herein the Petitioner) to obtain a decree for pre-emption with regard to the land measuring 1 kanal out of the 2 kanals which has also been admitted under issue No.6 in the following manner:--
8. While going through the findings in the judgment of the learned appellate Court in Civil Appeal No. 75/13 decided on 20.06.2015 the findings in the judgment and decree of the learned trial Court were maintained to the effect that no misreading or non-reading found therein, thus the appeal was dismissed accordingly.
9. Valuable arguments of learned counsel for the parties were heard with vehemence and available record delved deep into with their able assistance.
10. The legal controversy to declare the Plaintiff (hereinafter called the Petitioner) entitled for the grant of decree for possession through pre-emption with regard to 1 kanal of land as obviously the parties are co-owners and as per wisdom contained 1993 SCMR 543 " Kala Khan v. Ayub Khan " the parties are entitled to the extent of 50% shares, thus, in view of the findings of learned Civil Court duly maintained by the learned appellate Court, the Plaintiff (herein the Petitioner) would be entitled to 1 kanal out of the sale being effected subject to the pre-emption prayer. Here in order to resolve the findings as referred to above under issue No. 7 OPP there it refers to the sending of notice of Talb-e-ishhad under section 13 of the ibid Pre- emption Act (demand of pre-emption) sub section (3) which reads as under:-
1. ...........................................
2. ...........................................
3. [Subject to his ability to do so, where) a pre-emptor made Talb-i- Muwathabat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses , under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption.
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11. On behalf of learned counsel for the Plaintiff (hereinafter called the Petitioner) the following wisdom contained in the judgments of Hon'ble superior Courts have been referred to, cited as 2008 MLD 307 " Muhammad Sharif v. Muhammad Yousaf ", 2006 SCMR 4 " Pervaiz and another v. Muhammad Nawab ", PLD 2003 Peshawar 179 " Yar Muhammad Khan v. Bashir Ahmed ", PLD 2002 Peshawar 21 " Haji Din Muhammad through LRs v. Mst. Hajra Bibi and others ", PLD 2010 Peshawar 80 " Haji Auranazeb Khan v. Habib Khan ", 2008 SCMR 1444 " Hameedullah Khan v. Mst. Zeenat Khatoon " and 2006 CLC 1715 (Lahore) " Wali Khan v. Noor Ahmod and another " and prayed for the acceptance of this petition. While on the other hand, learned counsel for the Defendants (hereinafter called the Respondents) relied upon 2016 YLR Note 65, p.45 " Ubaidullah Jan v. Mumtaz Khan and 3 others ", 2015 SCMR 311 " Khan Afsar v. Afsar Khan and others ", 2014 YLR 2114 (Peshawar) " Noor Muheet v. Attaullah and others ", PLD 2011 Peshawar 116 " Amir Muhammad through LRs v. Muhammad Ashraf " and 2011 CLC 899 (Peshawar) " Samandar Khan v. Khan Hakim " and thereby prayed for utter dismissal of the present revision petition.
12. Where the language of section 13 subsection (3) of the ibid Khyber Pakhtunkhwa Pre-emption Act, 1987 is quite clear and it has to be followed for demand making Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption. This needful has utterly been done, but because of non-examining of the postman who served these registered notices upon the Defendant (hereinafter called the Respondent No. 1) Sher Rahman and in view of the referred judgments by the learned counsel for the Defendants (hereinafter called the Respondents) it was incumbent upon the Plaintiff (herein the. Petitioner) to produce postman to prove service/delivery of notices of Talb-i-Ishhad in compliance with set requirement of law. It would have been very much necessary, had the Defendant (hereinafter called the Respondent No. 1) by the name of Sher Rahman to have appeared in the witness-box and denied the service of the said notice upon him. Attorney on his behalf DW-2 Shah Wali Khan has only said about in his examination-in-chief as under:-
He has never repudiated to have not received registered A.D. which contained the notice of Talb-i-Ish'had served through Pakistan Post Office Ex. PW-3/1 to Ex. PW-3/2 in either his written statement or under an affidavit furnished under the Sharia Regulation 2009. In such scenario, where such facts exist on record there is absolutely no need of examination of the postman who has delivered registered A.D to Sher Rahman, the Defendant (hereinafter called the Respondent No. 1). In such background, PW-3 Fazal Rahim postman of the sender post office who has been examined alone is sufficient and not the postman of the receiving post office would be required to have been examined as a token of service upon the vendee/Defendant (hereinafter called the Respondent No. 1). It is by itself a proof of the delivery of notice of Talb-i-Ish'had even without return of the A.D card from the concerned post office to have been duly received by the Defendant (hereinafter called the Respondent No. 1), much more to say that PW-3 Fazal Rahim has not even been cross-examined thereby admitting the delivery of the registered Talb-i-Ishhad notice. It shall be made perfectly clear and straighten out that the wisdom contained in the judgment of the Hon'ble Supreme Court of Pakistan 2015 SCMR 311 " Khan Afsar v. Afsar Khan and others " as referred in the arguments of the learned counsel for the Respondents under its Para 6 because of a specific denial of the receipt of notice of Talb-i-Ish'had on account of such plea as defence it was received by another person rather than the vendee himself, thus for the dire need of the fulfillment of such requirement under section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 had not fulfilled the mandatory condition. Here in this case absolutely the facts are altogether on different touchstone with all veneration wherein this ground of not receiving Talb-i-Ish'had notice has never been denied.
13. Whereas to settle market value for 1 kanal piece of land which obviously the share falling in favour of the Plaintiff (hereinafter called the Petitioner) the total land measuring 2 kanals has been purchased for an amount of Rs.600,000/-. At the time of arguments an offer was made that if the market value is to be fixed for land measuring 1 kanal the Plaintiff (hereinafter called the Petitioner) may make payment of Rs.600,000/-, but this offer was discordant and the attorney on behalf of the Defendant No. 1 (hereinafter called the Respondent No. 1) spurned to receive, the consideration of offer under the market value, so, the sale price of 1 kanal persistently is settled Rs.300,000/- as entered under the sale inquestioned.
14. In such terms, this Revision Petition stands accepted and findings contained in the judgments and decrees of the learned Courts below are set aside, ergo, suit of the plaintiff (hereinafter called the Petitioner) is decreed to the extent of 1 kanal out of 2 kanals under the suit land as per survey number mentioned in the head-note of the plaint for an amount of Rs. 3,00,000/- fixed as its market value with no order as to costs.
ZC/94/P Revision allowed.