Suit land was sold to the petitioner on 2.9.2000 vide Mutation No, 1046 which was pre-empted by the respondents-plaintiffs who are mother and sons respectively, three in number. The learned S.C.J. vide impugned judgment and decree dated 18.5.2004 granted decree to Respondent No, 1 Shaukat Ali but refused the same to Muhammad Rafique his brother and Mst. Qabal Jan being their mother on the simple ground that albeit the first talab was jointly made on one and the same place, date and time by the pre-emptors but for issuance of notice talb-i-ishhad they appointed Shaukat Ali as their attorney on the date on which the notice was issued. In view of the trial Court it was incumbent upon all the pre-emptors to have signed the notice before appointing Shaukat Ali.
2. Aggrieved from the said judgment and decree vendee filed Appeal No, 40/13 of 2004 while pre- emptors-plaintiffs Muhammad Rafique and Mst. Qabal Jan filed Appeal No, 45/13 of 2004 and the learned District Judge Batagram through consolidated judgment given in the former appeal granted decree to Muhammad Rafique and Mst. Qabal Jan pre-emptors as well by holding that the appointment of the attorney and issuance of notice talb-i-ishhad by him thereafter, was valid as he was duly authorized to issue the same. In this regard the learned District Judge has relied on the view taken by this Court in C.R. No, 141 of 2003 titled Mst. Roshan Jan vs. Muhammad Maroof The view taken by the learned District Judge on this point is well placed and is in accord with the settled rule regulating and specifying the principal and agent relationship both under the relevant chapter of the Contract Act and the provisions of the Power of Attorney Act.
3. As pre-emptor Shaukat Ali has made the first talab jointly at the same time with co-plaintiffs, i,e,, Muhammad Rafique his brother and Mst. Qabal Jan his mother, therefore, he was a witnesss to the said fact as well. He was a competent witness to depose in this regard in view of the provision of Article 71 of the Qanoon-e-Shahadat Order, 1984 which makes the oral evidence of such a witness admissible. The relevant para of the above provision is reproduced below:-- "S. 71... Oral evidence must be direct. Oral evidence must, in all cases what ever, be direct, i,e,, to say;
(i) Not relevant.
(ii) if it refers to a fact which could be heard, it must be the evidence of a witness who says that he heard it'.
Rest also not relevant."
Thus the attorney was competent to issue the notice talb-i-ishhad and had the competency under written deed of authority to depose at the trial on behalf of the co-plaintiffs. Thus the testimony so given by him does not suffer from any legal infirmity.
4. The learned counsel for the petitioner was considerably vehement and criticized the ratio/mode on basis of which the pre-empted property was distributed amongst the petitioner-vendee and the three pre-emptors, i,e,, 1/4 and 3/4 share. He emphatically argued that Section 20 of the N.W.F.P.
Pre-emption Act, 1987, contemplates that in a case a pre-emptor and vendee have equal right then the division of the property amongst them shall have to be divided in equal shares and not on per capital basis as held by the honourable Lahore High Court in Feroz Khan and another vs. Ahmad Yar (1992 M LD 1570) and that the number of pre-emptors if is taken to be the determining factor then the principle of equal division of the property amongst the persons having equal right of pre-emption would stand defeated and great disparity would crop up which in his view is not the intention of the legislature.
5. In the provision of Section 20 of the Act ibid, the words pre-emptor and vendee have been used in singular and not in plural and it was in this context that reference has been made to equal division of property if both are possessed of equal right of pre-emption. However, Section 9 of the Act 1987 ibid, add to and supplement the provision of Section 20 of the Act which is reproduced below:-- "Section 9. Method of distribution of the property where more than one person are equally entitled....Where more than one persons are found by the Court to be equally entitled to the right of pre-emption, the property shall be distributed among them in equal share."
More conspicuous is the word person used in this provision as neither it refers to the pre-emptor or the vendee having equal right of pre-emption. The necessary coroally and inference, therefore, would be that the division of property amongst the pre-emptor vis-a-vis the vendee or amongst the preemptors themselves if they are more than one shall be divided equally on equal basis and no one should be given an edge over the other. The arrangement provided by the said provisions of law are based on principle of equity, therefore, the Court has to place reasonable and workable construction on the same in line with the settled principle of equal treatment. It shall not be construed in a manner to create mischief or to place one party or the other in disadvantageous position violating the principle of equity. Unless it is established that all the pre-emptors have the common, inseparable and similar interest then in ordinary course, under the law very one has independent right irrespective of their close relationship inter se. The same would be the case of the vendee having equal right of pre-emption like pre-emptor(s). To ensure fair play, principle of justice and rule of propriety therefore demands that the numerical strength of the preemptors or that of the vendees would require the Court to distribute the property equally but per capita so that each one is, placed in the same position in which the other is placed otherwise division of the suit property as proposed by the learned counsel for the petitioner on the pattern half and half between the three pre-emptors and the solitary vendee would cause miscarriage of justice attracting the element of discrimination, disparity and unequal treatment before law of the persons similarly placed and possessed of independent and individual right of pre-emption, more so, when the statutory law itself has created no exception in this regard.
6. As the learned District Judge has applied his judicial mind fairly and properly to the law on the subject to which no exception could be taken, as both parties have been treated equally, hence this petition being devoid of legal merits is, therefore, dismissed.