Sarfaraz Khan defendant purchased from one Saliheen, suit land measuring 5 Kanals 19 Marlas bearing different Khasra numbers situated in the area of Mauza Narai, Tehsil Takht Bhai, District Mardan, vide Mutation No,721 attested on 15-5-1990 for ostensible price of Rs,60,000. Faridoon Khan, plaintiff instituted before Senior Civil Judge, Mardan a suit for possession through pre-emption on the ground of being a co-sharer, contiguous owner and participator in immunities and appendages therein. The defendant resisted the suit by filing his written statement. In view of the pleadings of the parties, following issues were formulated for trial:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether suit is time barred?
(3) Whether the plaintiff has not fulfilled the requirements of Talbs properly?
(4) Whether the sale consideration has been fixed in good faith and actually paid?
(5) Whether the defendant has made improvement over the suit land, if so, to what extent and its effect?
(6) Whether/What is market value of the suit land?
(7) Whether the plaintiff is estopped to sue?
(8) Whether the plaintiff is entitled to the decree as prayed for?
(9) Relief.
2. The learned Civil Judge, Mardan at Takht Bhai, seized of the matter, upon consideration of the material before him, decreed the suit by judgment and decree dated 27-5-2003. An appeal was preferred there against, which was accepted by learned Additional District Judge, Mardan at Takht Bhai on 8-3-2004. The impugned judgment and decree was set aside and suit was dismissed.
Feeling aggrieved, Faridoon Khan, petitioner has approached this Court by way of filing instant civil revision under section 115 of the Code of Civil Procedure.
3. Mr. Abdul Sattar Khan, Advocate, for the petitioner, strenuously contended that the judgment and ' decree of the learned Appellate Court suffers from the vice of misreading, mis-construction and non-reading of evidence on record and does not qualify the requirements of a valid judgment.
Additionally, he urged that learned Appellate Court failed to appreciate the evidence in a legal fashion and came to an erroneous conclusion. The judgment of learned trial Court is/was based on sound reasoning and proper appreciation of evidence. The learned Appellate Court was having no justification much less plausible and legal, to interfere with the same. By doing so, the learned Appellate Court has exceeded from the jurisdiction lawfully vesting on its part. To substantiate the pleas, reliance was placed on Abdul Qayum (deceased) through L.Rs, v. Mushk-e-Alam and another 2001 SCM R 798 and Yar Muhammad v. Bashir Ahmad-PLD 2003 Pesh.
179.
4. Qazi Muhammad Anwar, Advocate, representing the other side, controverted the arguments advanced on behalf of the petitioner and attempted to argue that the Appellate Court has elaborately discussed every aspect of the case and dealt with the same in detail, leaving no room for further consideration. The learned counsel contended that the appraisal of evidence undertaken by the Appellate Court was perfectly in accordance with the principles settled by the superior Courts about appraisal of evidence in civil cases and the same did not suffer from any legal infirmity which could be interfered with by the High Court in the exercise of its revisional jurisdiction under section 115 of the Code of Civil Procedure.
5. Section 13 of the N.-W.F.P. Pre-emption Act, 1987 relates to the demands of pre-emption according to Islamic, law of pre-emption before institution of a suit by the prospective pre-emptor.
These demands have been termed as `Talb-i-Muwathibat', `Talb-i-Ishhad' and `Talb-iKhusumat'. `Talb-i-Muwathibar is to be made immediately by a pre- emptor in a sitting or meeting in which he has come to know of the sale and there and then declaring his intention to exercise the right of preemption. In case of `Talb-i-Ishhad' the pre-emptor is required to send 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 soon after the `Talb-i-Muwathibae but not later than two weeks. After `Talb-i-Muwathibae and `Talb-i-Ishhad' the pre-emptor is required to make `Talb-i-Khusumat' by filing a suit in the Court of competent jurisdiction to enforce his right of pre-emption.
6. A perusal of the record would reveal that the petitioner has successfully proved on record the making of Talbs, in accordance with the requirements of section 13 of N.-W.F.P. Pre-emption Act, 1987, by the production of informer, as well as marginal witness and also himself appeared as witness. The making of `Talb-i-Muwathibar, `Talb-i-Ishhad' and `Talb-i-Khusumat' stood proved on record, but, the learned Appellate Court, while employing hyper technical approach and while giving undue importance to minor slip of tongue of petitioner's witnesses, discarded such an extensive evidence, on no ground muchless valid. It has nowhere been the case of respondent either in his written statement, or in his Court statement, that he was in Saudi Arabia at the time when notice `Talb-i-Ishhad' was given to him. The learned Appellate Court, on its own and without their being any evidence to this effect, illegally held that as respondent was in Saudi Arabia, therefore, though, notice `Talb-i-Ishhad' had been issued but, could not be served and so, did not accept the making of `Talb-i-Ishhad'. This approach of the learned Appellate Court, is contrary to the settled principle of law, justice, equity and fair play. It may be added here that while dilating upon the cross-examination of P.W.5, the learned Appellate Court unnecessarily exploited the slip of tongue of this witness, wherein he stated to have informed the petitioner of the transaction after three day of attestation of mutation. This sentence of the witness is mere slip of tongue, which is but natural, but the learned Appellate Court, advanced a very strange notion that the portion of statement, which, goes against deponent should be considered. There is no such law in vogue, rather this is a very technical and unreasonable personal approach of the learned Appellate Court, which is unwarranted under the law. The judgment of learned trial Court is based on sound reasoning and proper appreciation of evidence. The learned Appellate Court was having no jurisdiction muchless plausible and legal, to interfere with the same. I agree with learned counsel for the petitioner that material on the record has not been properly assessed and appreciated by the learned Appellate Court, which has resulted in manifest injustice. Under the well-entrenched principle of law only glaring omissions, contradictions and dishonest improvements introduced in evidence of witness would render it unreliable. In the instant case, no such glaring contradiction or inconsistency could be pointed out by learned counsel for the respondent. In the result and for the foregoing reasons, I accept this civil revision, set aside the impugned judgment of the learned Appellate Court and restore that of the trial Court. There shall be no order as to costs.