AMIR JAN and 3 others vs Haji GHULAM MUHAMMAD

ORDER

1. ' FAZAL ILAHI KHAN, J.--Sale of the suit land that is 20/518 out of land measuring 25 Kanals 18 Marlas detailed in the plaint sold in favour of the petitioners through Mutation No,201 attested on 21-2-1989 was pre-empted by Haji Ghulam Muhammad respondent in Suit No,509/1 instituted in the Court of Civil Judge, Lakki Marwat. It was alleged in the plaint that when he came to know of the sale in question in favour of the petitioners, he there and then declared his intention to exercise his superior right of pre-emption. He approached the petitioners through a Jirga and then sent the required notice duly attested by two witnesses as required under the law.

2. ' Petitioners in their written statement apart from raising other issues stated that the conditions under section 13 of the N.-W.F.P. Pre-emption Act (Act X of 1987), (hereafter to be called as "Act") i,e, requirement of Talbs, have not been fulfilled and that no notices were ever served on them. .

3. ' After recording evidence of parties, which they wish to produce, on the issues framed, respondents suit was decreed against the petitioners on 22-7-1993 on payment of Rs,25,386.66. Petitioners' appeal against the judgment and decree was partially accepted by learned District Judge i,e, the pre-emption amount was enhanced and fixed at Rs,39,000 vide judgment dated 28-6-1995.

4. ' The petitioners challenged the judgments and decrees of the Courts below in revision before learned High Court which, too, was dismissed vide judgment dated 24-6-1996 against which leave to appeal is prayed for.

5. ' Learned counsel for petitioners confined his arguments to issue No,5 pertaining to Talbs under section 13 of the Act and in that regard challenged the finding of the Courts below in the light of the judgment of learned Peshawar High Court in Shah Hussain and 9 others v. Khani Zaman PLD 1996 Pesh. 73 wherein while repelling the arguments from the respondents' side in the case that Talb-i- Muwathibat is not strictly required to be alleged in the plaint with reference to time, place and persons in whose presence declaration of his intention to pre-empt is made, it was held: "This, if believed, would go counter to the provisions of Order 6 of the C.P.C. That specifically requires all questions of facts to be mentioned in the pleading, leaving aside the evidence. The same order of the C.P.C. Requires that although the details of facts are not necessary yet in some cases the details attain such importance and proportion that the mentioning thereof becomes necessary... ...

6. ' The details are important because in the light of such details regarding the time and place of Talb-i-Muwathibat one can calculate the period of limitation for Talb-i-Ishhad. It is, therefore, held that in the peculiar nature of the factor concerned, the details of Talb-i-Muwathibat are bound to be given in the pleadings."

7. ' Such being the case it was argued by the learned counsel for petitioner that the absence of there being given details regarding time, place and persons in whose presence Talb-i-Muwathibat was made in the plaint the findings of the Courts below on the relevant issue are erroneous and liable to be set aside.

8. After hearing the learned counsel for petitioners and perusal of record it is abundantly clear that respondent-pre-emptor did allege in his plaint that as soon as he came to know of the sale he declared his intention to exercise his superior right of pre-emption. This fact was denied by the petitioners in their written statement in general words as "denied". However, a specific issue was framed with regard to the fulfillment of requirement of Talbs on which both the parties led evidence. It was on appraisal of such evidence that learned trial Court decided that issue in favour of respondent and against the petitioners. That finding was maintained by the learned District Judge and the learned High Court on re-appraisal of such evidence. The question whether requirements of section 13 of the Act are fulfilled is a pure question of fact as held in the very judgment on which reliance has been placed by the learned counsel for petitioners. Such question was put to issue and the parties led evidence and such issues. The finding given as such cannot be disturbed merely on the ground that details of Talb-i-Muwathibat have not been stated in the plaint.

9. No doubt Order VI, Rule 2, C.P.C. Provides that material facts are to be stated in the pleadings but it does not mean that evidence through which such material fact is to be proved shall also be stated in the pleadings . In our view it would be sufficient requirement of law if it is alleged in the pleadings that after having come to know of the sale the pre-emptor declared his intention to preempt the sale. This material fact has to be proved at the trial through evidence on the issue framed in this regard. The evidence to be led need not be alleged in the plaint. However, if the plaintiff fails to mention the material fact that he has made Talb-i-Muwathibat on his having gained knowledge of the sale would be debarred from leading evidence on the material fact of Talb-i-Muwathibat. In Muhammad Ayub Khan v. Muhammad Zaman PLD 1990 Peshawar 181 a judgment which was not brought to the notice of the learned Judge at the hearing of Shah Hussain and 9 others v. Khani Zaman PLD 1996 Peshawar 73 the learned Judge dealing with the question held as under:-- "Viewed in the perspective of what is stated above, I am clear in my mind that no hard and fast rule can be laid down as to what precise yardstick shall measure contemporaneity of the knowledge of the sale with the demand tluit is to be made immediately in pursuance of Talb-iMuwathibat with reference to Explanation I read with subsection (2) of section 13 of the Act and the time factor in assessing as to whether Talb-i-Muwathibat has been made immediately or not, of the knowledge acquired of the sale by the prospective pre-emptor; shall vary from case to case, keeping in view the circumstances relevant to the peculiar nature and facts thereof."

10. ' Dealing with the evidence to be led in proof of this fact i,e, Talb-i-Muwathibat which is in dispute herein, the learned Judge observed as under: "For a layman to understand this newly introduced concept of Talbs in law, more particularly the first Talb-i-Muwathibat, with all its factual and legal intricacies; is not easy to comprehend and it will take some time for him to get himself acquainted with and particularly as to precisely what kind of evidence shall be required to prove it to the satisfaction of the Courts. I am of the view that till such time as they get adequately acquainted with the law, the Courts shall have to show indulgence in matters of testing the proof forthcoming, on the point of making Talb-i-Muwathibat; on the touchstone of established principle of scrutiny."

11. From what has been stated above it cannot be said that the material fact having not been stated in the pleading the evidence led can be ignored even if he succeeds, in proving Talb-i-Muwathibat through evidence. The proposition that pleadings are to be liberally construed is the cordial principle of law. In the instant case Talb-i-Muwathibat is alleged in the plaint, issue in this regard framed and evidence led on such issue, even if the fact is not stated with clarity and in detail in the pleading, the Court is empowered to give finding on such issue in the light of the evidence led.

12. ' The Courts below have concurrently given finding on a question of fact that Talb-i-Muwathibat was made and the provisions of section 13 have been complied with in letter and spirit. Such finding is sustainable in the light of the evidence in absence of any material irregularity and illegality. Leave to Appeal is therefore, refused and the petition dismissed.