KALA KHAN vs AYYUB KHAN

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---The defendant/vendee in a pre-emption suit filed under the new Pre-emption Law of N.-W.F.P., has brought under challenge the dismissal by the High Court of his Civil Revision. The respondent/pre-emptor's suit has been decreed throughout.

2. ' Learned counsel for the petitioner has raised two points. One, that as observed by the Supreme Court in the case of Zafar All v. Zainulabidin (1992 SCM R 1886) it was necesary for the respondent/plaintiff not to wait for the full time for `Talb-i-Ishhad'; and, did not make it as soon as it was possible for him. And secondly, that the sale being prior to the enactment of new law the respondent having equal right of pre-emption with the petitioner he had no right of obtaining 50 per cent. Share of the property under the new law.

3. ' The first argument has no force. The case cited by the learned counsel is distinguishable. A new feature with regard to the second Talb was mentioned in the said judgment of this Court as it could validly arise therein, in the facts and circumstances thereof. And also for the guidance of the litigant parties, the Bar and the lower Courts. In this case no foundation was laid, from the petitioner's side in which burden of proof was also on the petitioner, to show that what was possible for the respondent/plaintiff, was not done by him. The argument of the learned counsel that no evidence could be led in the realm of possibility, is unacceptable. If according to him it could be shown by the plaintiff that it was impossible for him to make the second Talb earlier, the contrary could, as well, be established by the petitioner/defendant.

4. The second argument is also without any force. The suit having been filed under the new law and the right of pre-emption having been claimed thereunder, the provisions thereof would compel as a new dispensation, the defendant/petitioner to share the property with the plaintiff to the extent of 50 per cent. Each. Under section 20 of the N.-W.F.P. Pre-emption Act, 1987 it was the command as well as intention of the law. The other provisions of the Act including sections 6 and 7, supplement/add to section 20 in the above context. None of the arguments raised by the learned counsel has any force. Leave to appeal thus is refused.