' Suit No.188/1 was instituted by Wali Dad pre-emptor on 19-9-1998 which was decided on 26-2- 2004. This suit was contested by Gul Bar Khan defendant, issues were framed, and evidence of the parties was recorded. The plaintiff produced Sher Badshah Postman, Office of Shahbaz Garhi, Mardan, as P.W.1, who stated that he had given the registered envelop copy Exh.P.W.l/1, to concerned Branch of Post Office, Budseri, in the name of Gul Bar Khan. Jehanzeb Patwari Halqa was produced as P.W.2 who stated that the plaintiff was owner in Khasra No.2028 and was owner of the property contiguous to the suit property. Another Patwari Halqa, namely, Said Bacha was produced as P.W.2, who brought on record Ausat Yaksala from 21-8-1997 to 22-8-1998 as Exh.P.W.2/P.1.
Muhammad Ali Moharrir, Sub-Registrar, Mardan, appeared as P.W.3, who produced the original sale-deed, copy Exh.P.W.3/1. It is worth-mentioning that P.W.1 was not cross-examined in spite of the opportunity given and the cross-examination of P.W.2 was to continue. For P.W.3, it was first written 'opportunity given. Cross-Nil.' But then the same was rubbed, and the word 'ex parte' was mentioned. The statement of Wali Dad was recorded as P.W.4, of Zari Dad as P.W.5 and of Zahir Dad as P.W.6. Then evidence of the plaintiff was closed.
2. Gul Bar Khan appeared as the only D.W. And closed his evidence. He stated that Malik Shah Jehan was present at the time of payment of4 sale consideration to Tehsildar, but he did not want to produce either Malik Shah Jehan, or the witnesses of the registered deed as his witnesses. A suggestion was put to him that he had not paid Rs.1,95,000 in presence of Sub-Registrar, but had paid R.60,000 only. He did not speak about Talb-i-Muwathibat or waiver of right of Preemption by the plaintiff, and about anything which could be counted as estoppel against the plaintiff. The statement of Said Badshah Pat'wari Halqa was recorded as C.W.1 who produced 5 years average as Exh.C.W.1/1. He was not cross-examined by any party, rand, as such, the market value of the suit property as per five years average value was admitted.
3. The learned Civil Judge, Mardan, dismissed the suit of the plaintiff on the ground that the plaintiff and his witnesses stated that the notice was given on 3-9-1998, when the plaintiff came to know about the sale in question on 2-9-1998, but the plaintiff stated that he had obtained the copy of registered deed three days after its execution, which meant that the plaintiff had come to know about the sale in question on 25-8-1998. But he did not make Talb-i-Muwathibat on 25-8-1998 and delayed it upto 2-9-1998 which disentitled him to the right of preemption. The superior right of pre- emption of the plaintiff was accepted, but the plaintiff was declared estopped to sue, having no cause of action, having not made the Talbs in accordance with law, hence not entitled to the relief prayed for. The learned trial Court, however, decided that the amount of Rs.1,95,000 as made consideration was not proved by the defendant and the market value of the suit property, as per five years average, was Rs.67,217/52 at the rate of Rs.7595/20 per Kanal. Ausat Yaksala, brought on record, had mentioned the market value of the suit-land as Rs.11,316 per Kanal. In order to properly compensate the vendee defendant according to the rate in the market, 'the learned Civil Judge should have adopted the higher rate, and should have fixed the market value of 8 Kanals and 17 Marlas suit-land as Rs.1,00,146/60.
3-A. Feeling aggrieved, the plaintiff went to the Court of learned Additional District Judge-III, Mardan, who upheld the decision of the learned Original Court while deciding Civil Appeal No.29/13 of 2004, instituted on 16-3-2004 and decided on 21-6-2004. There is nothing on record to show that Gul Bar Khan defendant had also filed any appeal before the learned Additional District Judge. The learned Additional District Judge, in spite of that, took up Issues Nos.7 and 9 for discussion and decision. He recorded his views as under:-- ' From the rider of registered deed it is evident that the vendor received the sale price from the vendee in the presence of Sub-Registrar, Mardan. Non-production of the Sub-Registrar or marginal witnesses of the registered sale-deed is not fatal to the prosecution case for the simple reason that five years average price is admittedly a price list of different transaction but the said transaction have not been proved through evidence. Neither purchaser nor buyer and concerned Revenue Officer appeared to prove the sale price of the said transactions. While giving precedence to the five years average price over the sale price entered in the registered-deed, the trial Court has acted with material irregularity which needs interference. It is reflected from the record that an amount of Rs.1,95,000 has been entered in the registered sale-deed No.500 dated 22-8-1998 as price of the suit property which was received by the vendor from the vendee in the presence of Sub-Registrar Mardan. Upon the examination of the copies of registered sale-deed Exh.D.W.l/2, I find that it bears the stamp duty of Rs.4880. It is but evident that registration fee of Rs.3900 has also been paid. I, therefore, feel no hesitation to set aside findings of the trial Court on Issues Nos.7 and 9 and I hold that Rs.1,95,000 is the correct sale consideration of pre-empted land, which was actually paid. The cost of incidental charges is fixed as Rs.8780. Both the Issues Nos.7 and 9 are decided accordingly.
4. In this way, learned Additional District Judge went out of the limits of the memorandum of appeal of the present petitioner and reversed the decision of the learned Original Court, in spite of the fact that it is not shown on record that the defendant had also filed appeal. The learned Judge ignored the copy of Aks Shajara, Exh.P.W.2/2, and the copy of Fard Jamabandi, Exh.P.2/1, wherein it has been clearly mentioned that Khasra Nos.2041 and 2040 were parts of Khata No.983 of 2206 while Khasra No.2039 was in Khata No.983 of 2207, Khasra No.2028 was directly contiguous to Khasra Nos.2039 and 2041 while Khasra No.2040 was in the same block and in the same Khata with Khasra No.2041. The learned Judge was, therefore, wrong to hold that the plaintiff had no right to Khasra No.2040. The present petitioner assailed the judgment of the learned Appellate Court not only for dismissal of appeal on the ground of non-making of Talb-i-Muwathibat, but also regarding the fixation of sale consideration.
5. There has always been difference between Haq-e-Shufaa and the right of pre-emption. The old law of pre-emption was the product of Anglo-Saxon Judicial System. The right was created for the benefit of the landlords. That was a right in preference of one purchaser against another genuine purchaser, and the purpose of that right was the accumulation of further property for the landlords.
It was such a right which might have necessitated jumping over the property, and snatching it. But jumping etc. Is not required for demand in relation to Haq-eShufaa. The purpose of Haq-e-Shufaa was never the accumulation of property, but was always the avoidence of stranger and to keep him away from the property of landowner whether he needed or not the other property. The bestower granted it for keeping peace in the society and for avoiding mischief on earth. The right holder of Haq-e-Shufaa was obliged to meet the need of the vendor, and to spend his own money in accordance with the market value of the suit property in order to properly compensate the vendee. In the first case the vendee was bound to sell the property to the pre-emptor, and not to any other person, and its effect was to compel the vendor to sell his property to the pre-emptor on the value agreed to by the pre-emptor, or as may be fixed in the market. In the second case, the need of the vendor was to be met by the right-holder of Shufaa, and the stranger was to be compensated properly in spite of keeping him away.
6. Section 33 of the N.-W.F.P. Pre-emption Act, 1987, (hereinfter referred to as the Act) is as under:-- "33. Matters Ancilliary Or Akin to the Provisions of this Act.--Matters ancillary or akin to the provisions of this Act which haven't been specifically covered under any provisions thereof shall be decided according to Shari'ah."
' In order to establish the fairness of the vendor, section 12 of the Act provides as under:-- "12. Notice of Intention to sell.----(1) Where any person proposes to sell any immovable property in respect of which a right of pre-emption exists, he may give notice to all such persons having such right of the price at which he is willing to sell the property.
(2) The notice under subsection (1) shall be given through any Court within the local limits of whose jurisdiction such immovable property is situated and shall be deemed sufficiently given if it be stuck upon the main entrance of a mosque and on any other public place of the village, city or place where the property is situated."
The right-holder of Shufaa stands deprived of this facility when the vendor does not.Follow this law and fails to give notice by ignoring the Court, the mosque and the public place. An adverse inference has to be taken against the vendor concerning the sale price due to his failure to follow the above law. The burden is not to be shifted to the right-holder of Shufaa to prove non-payment of the sale-consideration. As alleged by the vendor and the vendee. It is for the vendee and the vendor, in case of failure to give notice under section 12 of the Act, to positively prove that the sale consideration was fixed in good faith and was actually paid. The mere production of copy of the registered deed may amount to prove that the sale-deed was actually executed. But the contents of the deed have to be proved by independent cogent evidence, and failure to prove the contents of such deed will result in non-proof of such contents.
6-A. Section 32 of the Act declares the responsibility of the Registrar registering the sale-deed, or the Revenue Officer attesting the mutation, of a sale, to give public notice in respect of such registration or attestation within two weeks of the registration or attestation of the mutation. The law, therefore, does not expect the pre-emptor to run after the deed or mutation within the period of the first two weeks after registration or attestation. It is the responsibility of the vendee to pay charges for the notice. Failure of the vendee to prove that such charges were paid by him and that such notice was issued by the Registrar or the Revenue Officer shall adversely hit the vendee defendant and not the plaintiff pre-emptor. The fault of the Registrar or the Revenue Officer and the vendee can in no way be considered as the fault of the preemptor.
7. In this case, the vendee defendant has neither produced the vendee to show that he had either given notice to the pre-emptor through the Court or had sufficient reasons, and not mala fides, for not giving such notice. The statement of the 'vendor to prove that the amount of sale consideration was fixed in good faith and was paid to him in the presence of the witnesses, was the best evidence. The defendant failed to produce that best evidence. The defendant also failed to produce the Registrar to prove that a notice was issued by him in accordance with section 32 of the Act, and further to prow that the amount of sale consideration was actually paid to the vendor by the vendee in his presence. The vendee defendant has not produced. Malik Shah Jehan and the witnesses of the deed to prove that the sale consideration was actually paid by him to the vendor.
8. The learned Additional District Judge was of the view that the witnesses of the transactions mentioned in the Ausat Yaksala or the Ausat Panjsala were not produced and, therefore, the sale transactions were not proved. In fact, those were closed and undisputed transactions and their value had to be taken as it was mentioned in the Revenue Record. The learned Additional District Judge shifted the burden to the pre-emptor instead of vendee defendant and that, too, for reasons not genuine and without showing that any appeal was filed by the vendee defendant.
9. The purpose of making and proving Talb-i-Muwathibat and , Talb-i-Jshhad before Talb-i- Khusumat is to ascertain that the plaintiff pre-emptor intended, from the very start, to avoid the entry of stranger to his locality and was ready, even, to spend his own money to purchase the disputed property in order to meet the need of the vendor. The preemptor was to prove his intention while the vendee waslo prove waiver D by, and estoppel of the pre-emptor. A Majlis (Meeting) is necessary. For making Talb-i-Muwathibat, and it can be made only when there are one or more persons available to the pre-emptor to announce his Talb in their presence, within their hearing and attention.
10. There niay be occasions when a pre-emptor may receive a telephonic call, a letter or chit, or copy of registered deed or mutation, and there is no person who may be attentive to his Talb. He is not required to shout as a crazy person and attract witnesses of Talb. He shall have to wait for a Majlis. There can be no Talb-i-Muwathibat unless there is a person giving information to the pre- emptor and there is a Majlis (Meeting) of persons who may hear his demand attentively. E Such demand is neither jumping, nor immediate and can be delayed upto before,the end of that Majlis.
11. The purpose of mentioning of date, time and place in the plaint regarding Talb-i-Muwathibat is that it facilitates the counting of time of the notice of Talb-i-Ishhad from the time of Talb-i- Muwathibat. In this case, the registered deed was executed on 22-8-1998. But it has been proved unrebuttedly that the notice was given on 3-9-1998. A period of 120 days was available to the pre- emptor from 22-8-1998, but he filed the suit on 19-9-1998. It means that he filed the suit immediately after 15 days of the notice of Talb-i-Ishhad and within the first two weeks of the registration of the deed. These circumstances show that he had the intention to keep the stranger away, never allowed the stranger to believe that he was acceptable to the pre-emptor, and never waived his right.
12. It has been stated by the plaintiff as P.W.4 that he got the copy of the registered deed on the third day of its execution. But such statement was recorded after five years of the execution of the deed. Human memory does not retain facts for a long time and only important aspects of an important fact may be retained' by human memory. This one sentence of the statement should not have been separated from the whole of his evidence, specially in the light of casual statement of the defendant. It was never the duty of the Court to defeat the valuable right of the plaintiff pre- emptor by labouring to search out contradictions in the evidence of the plaintiff. The plaintiff was to prove by evidence, whether documentary or oral or circumstantial, that he had made Talb- iMuwathibat and Talb-i-Ishhad. The plaintiff in this case proved Talb-iMuwathibat as well as Talb- i-Khusumat. It was the duty of the vendee defendants to prove by positive evidence that the plaintiff had waived his right and was estopped by his own conduct to continue with the right of pre-emption. The vendee-defendant did not produce any evidence to this effect, and remained silent about Talb-i-Muwathibat which amounted to his admission.
13. In order to show some example of lapses of human memory, the part of decision of the learned Additional District Judge has already been reproduced above. He recorded 'rider' for 'reading' and called the appeal of civil nature as the prosecution case in flow of discussion, although it was not a case of criminal nature. A piece of the statement of P.W. 4 mentioned above has been taken by the learned Civil Judge for defeating his valuable right of pre-emption. But the same learned Judge, in the same statement, ignored the part which was to the effect that "it is correct that when my statement was recorded, the other witnesses were present in Court and the defendant and his counsel were not available in Court". She also ignored the part of statement of Zari Dad wherein he stated that "I, Wali Dad and Zahir Dad came to Kutchery on the next day and scribed the notice in the name of the defendant in Kutchery. I and Zari Dad thumb-impressed it." Zari Dad stated that he and Zari Dad thumb-impressed the notice. In fact he meant Zahir Dad P.W.6 and not himself twice.
Such-like lapses of memory are the beauty of the human life and should never be taken to prejudice the persons, who says or writes so.
14. The vendor, the vendee and the Registrar failed to perform their part of responsibilities to properly inform the plaintiff in time. The plaintiff is entitled to the same treatment, protection and leniency as is given by the State to a Citizen against a foreigner, and by a unit of the State to a domiciled person against the person not so domiciled. It is not only the principle of Shari'ah by itself, but it is also an established principle of the judicial system prevailing in Pakistan that valuable rights should not be defeated either by technicalities or by minor contradictions, and unintentional faults, errors and lapses. The making of the first two Talbs themselves is a pre- requisite for Talb-i-Khusumat, and is not mere technicality. But the process of making these Talbs are procedural in nature.
15. The part of the statement of the plaintiff taken by the learned two Courts is totally unadjustable with the other evidence of the plaintiff. Neither the defendant nor the plaintiff had produced any copy of the registered deed which might have been obtained by the plaintiff after three days of the execution of the deed in question. There is a copy produced by the plaintiff on 19-9-1998 along with his plaint, which is dated 15-9-1998. The suit of the plaintiff was' filed on 19-9-1998, although it was registered on 21-9-1998, and the copy produced along with the plaint (dated 15-9-1998) has been initiated by the learned Civil Judge on 21-9-1998, which means that it was the only copy of the registered deed available with the plaintiff. This copy was obtained by the plaintiff three days before the institution of the suit, and not three days after execution of the deed. This lapse of memory of the plaintiff should not destroy his valuable rights, specially in the light of the maxim that 'to err is human'.
16. In these circumstances, I am of the view that the judgment and decree of the learned Civil Judge, Murdan, for the purpose of Talb-iMuwathibat, waiver, estoppel, cause of action and relief are not based on solid reasons, and also required modification for the issue of market value. I hold that the plaintiff has made Talb-i-Muwathibat, Talib-iIshhad and Talb-i-Khusumat with continued intention of Shufaa, and market value of the suit-land is Rs.1,00,146/60.The judgment and decree of the learned Additional District Judge is also bad in law, is not based on sound reasons for the purposes of Talbs, as well as on Issues Nos.7 and 9, and, on other grounds, and is not maintainable.
17. I, therefore, accepted the present Civil Revision, set aside the impugned judgment and decree dated 21-6-2004 of the learned Additional District Judge-III, Mardan, in this case, and I also partially set aside the judgment and decree of the learned Civil Judge, Mardan, dated 26-2-2004 regarding the Talbs, waiver, estoppel, cause of action and relief (Issues Nos.1, 2, 5 and 10), and restore it for the remaining purposes, including decisions on issues Nos.3, 4, 6, 7, 8 and 9, but with modification about the market value of the suit-land.
18. As a result of the above discussions, and decision, I grant decree for possession of the suit property through pre-emption in favour of the plaintiff/petitioner, as prayed for, against the defendant/respondent on payment of Rs.1,00,146/60. The plaintiff/petitioner shall have to deposit the said amount within one month from the date of announcement of this judgment, if he has not already deposited it fully, and shall make up the deficiency of court-fee, if any, within the said period, otherwise his suit shall stand dismissed.