' The brief facts out of which aforementioned civil revision arises are that suit-land (fully described in head note of the plaint) was sold by Muhammad Nawaz and others vide sale Mutation No,40 attested on 23-1-1993 in favour of Ali Akbar at the ostensible sale consideration of Rs,38.200.
Rehmatullah, pre-emptor, instituted Suit No,39/1 on 29-4-1993 for possession through pre-emption of suit-land on the basis of being `Shafi-e-Sharik', `Shafi-e-Khaliq' and 'Shafi-e-Jaar'. He claimed to have obtained knowledge of the suit transaction on 15-2-1993. And made Talb-e-Muwathibat instantly followed by notice of Talb-e-Ishhad dated 18-2-1993.
2. The suit was contested and superior right of pre-emption of the pre-emptor was denied. During pendency of the suit. Abu Khan and Umar Khan. Rival pre-emptors also filed Suits Nos.40/1 and 41/1 on 12-5-1993 to enforce their right of pre-emption in respect of suit-land. All the suits were contested and proceedings were conducted in Suit No,39/1 of 1993. The pleadings of the parties gave rise to the framing of following consolidated issues:--
(1) Whether the plaintiff as Well as rival pre-emptors have got a cause of action?
(2) Whether the suits are within time?
(3) Whether the plaintiff as well as rival pre-emptors have not fulfilled the requirements of Section 13 of the N.-W.F.P. Preemption Act, 1987, if so, its effect?
(4) Whether the plaintiff as well as rival pre-emptors have got their right of pre-emption?
(5) Whether the plaintiff as well as rival pre-emptors. Have got superior rights of pre-emption?
(6) Whether the sale consideration of Rs,38,200 as mentioned in the impugned mutation was fixed in good faith and was actually paid by the defendaht/yendee in lieu of the suit-land?
(7) What is the market value of the suit-land?
(8) Whether the plaintiff as well as rival pre-emptors are entitled to the decree for possession through pre-emption as prayed for?
(9) Relief.
3. The parties produced evidence in support of their respective. Contentions. After close of evidence. Rehmatullah, plaintiff; effected compromise with Ali Akbar, defendant. Resultantly, his suitwas dismissed as withdrawn. The suit instituted by Abu Khan, rival preemptor was dismissed on the ground that he failed to prove the 'Talbs' through independent witnesses. The suit of Umar khan was also dismissed through judgment and decree dated 5-2-2000 on the ground that he could not .Fulfil the requirements of section 13 of the N.-W.F.P. Pre-emption Act, 1987. Feeling aggrieved, an appeal was preferred thereagainst before learned District Judge, Lakki Marwat which did not succeed. The appeal was dismissed vide order, dated 9-12-2000, giving rise to the filing of instant civil revision under section 115, C.P.C. By Umar Khan thrpugh.His legal heirs, Shadi Khan and others.
4. I have heard Mr. Nasrullah Khan, Advocate for the petitioners and Mr. Muhammad Wahid Anjum, Advocate for the respondents. I have also gone through the record of the case with their able assistance.
5. Learned counsel for the petitioners vehemently contended that judgments and decrees of Courts below arc against law, facts, material on record and principles of natural justice and they have erred in law in deciding the issue of Talabs against the petitioner. He reiterated that the impugned judgments suffer from the vice of acute misreading and non-reading of evidence and cannot be allowed to remain intact. In this regard, he placed reliance-on Abdul Qayyum v.
Muhammad Amin 2001 SCM R 1651; Yar Muhammad Khan v. Bashir Ahmad PLD 2003 Pesti. 179 and Haji Din Muhammad through Legal Heirs v. Mst. Hajra Bibi and others PLD 2002 Pesh.
21.
6. As against this, learned counsel for the respondents, supported the impugned judgments and decrees and reiterated that the petitioner was rightly non-suited as they failed to prove the requirements of Talbs in accordance with law. Additionally, he urged that interference in concurrent findings of facts can be made by the High Court only when the evidence is misread and evidence is based on surmise and conjectures or based on inadmissible evidence or there existed any error or defect in the procedure. In the instant case, he added, position is altogether different and it does not tilt in favour of the petitioners. To substantiate, the pleas he placed reliance on Altaf Hussain v. Abdul Hamid and Abdul Majid through Legal Heirs 2000 SCM R 314 and Haji Muhammad Salim v. Khuda Bakhsh PLD 2003 SC 315.
7. In order to appreciate the arguments of learned counsel for the parties, I consider it appropriate to reproduce below section 13 of the N.-W.F.P. Pre-emption Act, 1987 which reads:-
13. Demand of Pre-emption.--- (1) The right of pre-emption of a person shall be extinguished Unless. Such person makes demands of pre-emption in the following order, namely:--
(a) 'Talk-i-Muwathibar';
(b) Talb-i-Ishhad'; and
(c) 'Talb-e-Khushumat'.
8. The three demands asserting the right of pre-eruption have their own respective connotations.
' The first demand, i,e, Talb-e-Muwathihat or, what is literally meant, the jumping is defined in the first Explanation to subsection (1) of section 13 which envisage firstly, the act of prospective pre- emptor coming to know of the factum of a sale, secondly. Such knowledge/ information emanating from a sitting or meeting, i,e, Majlis and thirdly, and rather foremostly declaration.Of his intention to exercise the right of pre-emption immediately on gaining the knowledge of the sale.
' 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 conic to know of the sale declaring his intention to exercise the right of pre-emption technically called "Talb-e-Muwathibat".
He shall he thereafter required to make the demand of "Talb-e-Ishhad by establishing evidence as soon as possible but not 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 a registered postal cover with acknowledgment due confirming his intention to exercise the right of pre-emption, then comes the demand for "Talb-e-Khusumat" by filing a suit in a competent Court for enforcing his right of pre-emption.
9. This is settled proposition of law in pre-emption cases that preemption right cannot be exercised unless and until the pre-emptor has performed the ceremony of Talb-e-Muwathibat immediately after hearing the sale. The delay in performing the ceremony is fatal to that right. When Talab-e- Muwathibat is not made instantly on coming to know of the sale, the right of pre-emption is lost. A short delay would not be excused.
10. It may not be out of place to mention here that the pre-emption right, being a feeble right pre- emptor seeking to exercise Such right was hound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre-emption decree as held in Wahid Bakhsh and others v. Abdul Qayyum and others 1997 M LD 2945 (Peshawar).
11. It was held in Haji Muhammad Salim v. Khuda Bakhsh PLD 2003 SC 315.
"The performance of Talb-i-Muwathibat is pure question of fact which in the instant case was alleged in the plaint. The plaintiff/pre-emptor had also examined evidence in this behalf which was duly appreciated by the trial Court as well as the Appellate Court, both of whom had non-suited the pre-emptor. Holding the view that the required question of fact was not proved. The two Courts had appreciated the evidence minutely, had discussed the same in detail and thereafter had arrived at concurrent conclusion. As it was a concurrent finding of fact given by two Courts below, the High Court should not have interfered with simply to substitute its own finding, notwithstanding the mode of appreciation of evidence being subjective. The concurrent finding of fact can be interfered with by the High Court only where such findings are based on "conjectural .Presumptions, erroneous assumptions, wrong proposition of law", "insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, arbitrary exercise of power and where unreasonable view of evidence had been taken due to non- reading and misreading of evidence". I have to appreciate in the instant case as to whether the two Courts below had resorted to misreading of evidence or non-reading of evidence or had arrived at a wrong conclusion by reading into evidence something which did not exist at all...
' The question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre- emption. The law as well as the fact is that the very right of pre-emption is not activated unless Talb-i-Muwathibat is performed. It should not be dubbed as a mere technicality at times, it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of pre-emption. The latter might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality, this Court in Said Kamal Shah's case PLD 1986 SC 360 would never have gone to the extent of saying that Talb-i-Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provisions qua Talb-i-Mutathibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of pre-emptors in the country were non-suited because of non-assertion and performance of Talb-i-Muwathibat though not required by the then prevailing pre-emption laws in the country. What we want to emphasise is that Talb-i-Muwathibat should not be taken lightly and should not be considered as a mere technicality. Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of a right of pre-emption.
' According to section 13, Explanation 1 of N.-W.F.P. Pre-emption 1 Act. 1987, Talb-i-Muwathibat means "immediate demand he a pre-emptor in the sitting or meeting (Majlis) in which lie has come to know of the sale declaring his intention to exercise the right of pre-emption" the words "immediate demand" put a limitation on the prospective pre-emptor that he must express his intention immediately. This has also been interpreted as jumping demand but the immediacy can well be gathered from Hedaya (The Hedaya 1975 Edition, Chapter II, page 550) which provides. If the man claims his Shuffa in the presence' of the company amongst whom he may be sitting when he receives the intelligence, he is the "Shafee", his right not being invalidated unless he delays asserting it till after the company have broken up."
' This is a clear indication of compulsion on the prospective preemptor that he has to make Talb-i- Muwathibat in between the period of his having received the information in the Majlis and the dispersal' of the Majlis. Beyond such limitation, the Talb if exercised would be invalid. The second step is that of Talb-i-Ishhad which has to be completed within 15 days after the performance of Talb-i-Muwathibat. A pre-emptor can be non-suited for non-performance of Talb-I-Ishhad as well and the performance of the latter is to be linked with the performance of the former. The third one is Talb-i-Khusumat which is the filing of a pre-emption suit and that too within a period of 120 days.
16. It is a settled principle of law that in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or the knowledge of the .Plaintiff in specific so that the limitation is computed accordingly. It has never been made permissible in the realm of civil law that a plaintiff who does not disclose the point of time of his knowledge about the accrual of cause of action, he could be accommodated subsequently in the evidence to satisfy the same. In our view, it is important to tell the date and time of the performance of Talb-i-Muwathibat in the plaint so as to prove the immediate exercise thereof and also as to whether he performed Talb-i-Muwathihat in the same meeting and before the dispersal thereof.
' The date and time is important to be mentioned in the pleadings because therefrom the performance of Talb-i-Ishhad has to be computed so as to be within 15 days. As mentioned earlier, in civil cases in general the point of time qua the accrual of knowledge requires to be mentioned in specific so that nothing is invented during evidence as an afterthought. The cases of preemption should not be an exception to the general law and the day and time of performance of Talb-i- Muwathibat which is simultaneous with the accrual of knowledge of transaction should be mentioned in the pleadings so that, at the first instance the immediacy of the Talb-i-Muwathibat is appreciated and at the second instance the limitation qua the performance of Talb-ilshhad is calculated. This aspect has never been argued in any case before this Court where the view happens to be expressed to the contrary. Conceding, of course, that the material constituting evidence may or may not be mentioned in the pleadings."
12. Although an appraisal of the evidence is not normal course in exercise of revisional jurisdiction but in the case of gross misreading of evidence, High Court can reappraise the evidence on the file.
In order to prove the requirements of the requisite Talbs, the evidence must be reliable, true, trustworthy and beyond material contradictions as to the factum of knowledge of sale. In this case, the evidence produced by the petitioner comprising the 'testimony- of Shadi Khan (RPW-2), Hakam Khan (RPW-3) and Abdul Majid (RPW-4) is highly discrepant and full of infirmities and contradictions. The same has been ignored and excluded out of consideration for valid and cogent reasons. The concurrent finding of .Fact recorded by the forums below is not susceptible to the revisional jurisdittion of this Court and hardly calls for interference.
13. No other point has been raised before MC and rightly so.
14. In the wake of above discussion, finding no substance in this revision petition, I dismiss the same with no order as to costs.