MUHAMMAD YOUSAF KHAN vs KHAN SARDAR and others

The instant civil revision has been filed by Muhammad Yousaf Khan against the judgment and decree of the Civil. Judge, Lakki Marwat dated 13-11-1998 as well as against the order of the District Judge, Lakki Marwat dated 5-5-1999 vide which his suit as well as the appeal have been dismissed by the two Courts below.

2. Brief facts of the case are that present petitioner Muhammad Yousaf son of Sher. Daraz Khan of Wanda Shahabkhel, District Lakki Marwat, instituted a suit in the Court of Civil Judge Lakki Marwat, against Khan Sardar and five others for a decree of possession by pre-emption of land measuring 21 Kanals and 14 Marlas, mentioned in detail in the heading of the plaint, situated in Village Mashkana, Tehsil and District Lakki Mawart, at price of Rs, 14,000 but inflated price has been entered in the mutation. It is further alleged in the plaint that Mst. Fatima etc. Owners of the suit property sold the suit land to defendants Nos.1 to 6 vide Mutation No,452, attested on 27-4-1994 at the price of Rs, 14,000 but in order to defeat the pre-emptive rights of the plaintiff, an inflated amount was inserted in the same Mutation; that on gaining knowledge of the sale, the plaintiff announced his intention to pre-empt the said sale there and then in the Majlis in front of the witnesses and separate registered notices of Talb-i-Ishhad were sent to the concerned parties; that the plaintiff has got superior right of pre-emption on the ground of Shafi Sharik, Shafi Khaleet and Shafi Jaar while defendants Nos.1 to 7 have got no such right; that no notice has been served upon the plaintiff regarding the sale of the suit property and as defendants are not accepting the plaintiff's pre-emptive rights, so the present suit.

3. The defendants contested the suit vehemently by filing their written statements. It is to be noted that defendant No,7 Haqnawaz is a rival pre-emptor. On the divergent pleas of the respective parties, the trial Court framed almost 9 issues apart from relief. The parties produced their respective evidence and after hearing the learned counsel for the parties and going through the record, the trial Court vide its judgment and decree dated 13-11-1998 dismissed the suit of the plaintiff with costs.

4. Dissatisfied with the said judgment and decree, Muhammad Yousaf Khan preferred an appeal in the Court of District Judge, Lakki Marwat, but that appeal also failed and was dismissed vide judgment of the Appellate Court dated 5-5-1999. Aggrieved from these judgments and decrees, petitioner Muhammad Yousaf Khan has preferred the instant revision petition on the ground that both the lower Courts, have acted in violation of the latest judgment of the august Supreme Court wherein it is firmly held that the mentioning of date, time and place in the notice of Talb-i-Ishhad as well as in the plaint is not an essential requirement for the purpose of pre-emption and no suit on account of omission can be dismissed. According to the petitioner, he has established the making of Talb-i-Muwathibat and sending of notices of Talb-i-Ishhad but the learned Courts below have ignored these issues.

4. I have heard the learned counsel for the parties and have gone through the record with their assistance.

5. Admittedly, the contention of the learnd counsel for the petitioner seems to be correct that no details and names of witnesses ate required to be given in the plaint. But the case in hand is not so as has been depicted by the learned counsel for the petitioner. A perusal of the record clearly shows that neither notice of Talb-i-Muwathibat has been proved cogently nor there is any evidence with regard to Talb-i-Ishhad as no official from the Post Office has been produced and nothing is available on the record with regard to the proof of Talb-i-Ishhad. The counsel for the petitioner argued that he has placed receipts on the file which are sufficient to prove the factum of Talb-i-Ishhad but the contention of the learned counsel is not correct and these receipts must have been, proved through some responsible official of the Post Office Department which has not been done in the present case.

6. With regard to Talb-i-Muwathibat the witnesses of the present petitioner/plaintiff as well as rival pre-emptor are not certain with regard to the date and time and in this behalf the statements of Zabta Khan (P.W.3) and Abdul Hameed (P.W.4) are worth perusal and so is the case with the rival pre-emptor. It is to be noted that the rival pre-emptor seems to be disinterested as he has neither preferred any appeal nor any revision in this Court against the said order of the trial Court. But leaving aside that factor of the case, it is crystal clear that the Talabs were not made in the instant case in accordance with the spirit of section 13 of the N.-W.F.P. Pre-emption Act, 1987 and the trial Court as well .As the Appellate. Court have rightly dismissed the claim of the petitioner/plaintiff. In view of my above discussion, the revision petition being devoid of merits, stands dismissed.