' SALIM KHAN, J.---A suit was instituted by Ghulam Sarwar, the present petitioner, against Saleh Muhammad, respondent, for possession through pre-emption of the suit property measuring eight Kanals, seven Marlas in Khasra No,719/2 situate at Mauza Dargai, Tehsil and District, Charsadda. The suit land was sold by the vendor to Saleh Muhammad through registered deed dated 7-12-1998, and Suit No,154/1 was instituted on 22-3-1999 which was decided on 19-2-2002. Evidence of the parties, specially the statement of Patwari Halqa, who appeared as P.W.1, clarified that the plaintiff was Shafi Sharik, Shafi Khalit and Shafi Jar while the defendant had no such right. The suit was decreed in favour of the plaintiff on the payment of rupees five lacs as mentioned in the registered deed, and the plaintiff was directed to deposit proper court-fee otherwise his suit would stand dismissed.
2. The said judgment and decree was not acceptable to both the parties, and they went on appeal.
Those appeals were registered as 28/13 and 29/13 of 2002, and were disposed of vide judgment and decree in Appeal No,28/13, instituted on 20-3-2002 and decided on 8-5-2003. The appeal of Ghulam Sarwar was dismissed, and the amount of rupees five lacs as sale consideration/market value of the suit property was kept intact whereas the appeal of Saleh Muhammad was accepted, the judgment and decree in favour of Ghulam Sarwar was set aside and his suit was dismissed.
Hence, the present Civil Revision by Ghulam Sarwar plaintiff/appellant/petitioner. I heard the arguments of Mr. Abdul Kabir Khan, Advocate, for the petitioner as well as of Mr. Javed A. Khan, Advocate, for the respondent, and perused the record.
3. It is admitted by both the parties that the petitioner/plaintiff has superior right of pre-emption as against the respondent/defendant. The controversy between the parties is that whether the 'demands were properly made, what was the market value of the suit property, and whether it was fixed in good faith and paid by the vendee to the vendor. Evidence of the defendant could not prove the payment of said amount to the vendor.
4. Abdul Hameed Lambardar appeared as D. W . 1 and stated that the amount was correctly mentioned in the registered deed, but the same was not paid in his presence. Javed Iqbal D.W.2 stated that the plaintiff was his father-in-law while the defendant was his brother-in-law. He stated that the amount was paid in the house when there was no other person at that time, but that payment was made after the registration of the deed. This part of his statement controverts the assertion in the registered deed regarding payment of the amount, and is also against the statement of Abdul Hameed Lambardar (D.W.1). Liaqat Ali Moharrir (D.W.3) stated that the amount was not paid before the Sub-Registrar, but was accepted to have been paid at home. This part of his statement is against the statement of Javed Iqbal (D.W. 2) who stated that the amount was paid at home after the registration of the deed. It means that the amount was.Either not paid at all at the time of registration of the deed, or the witnesses to payment, if any, before the registration of deed, were not produced. Saleh Muhammad appeared as D.W.4 had clearly stated that the amount in question was paid by him to the vendor in two instalments, and no amount had been paid to him at the time of scribing of the deed. This statement belied the statement of Javed Iqbal D.W., who did not state that the amount was paid in two instalments. The whole evidence of the defendant did not prove the payment of total amount to the vendor.
5. A registered deed is a public document and presumption of truth is attached to it. But once controverted, the person taking benefit out of the same has to prove its contents, specially the value of the property mentioned by independent evidence, as the presumption of truth to a public document does not always mean that the contents of the document in question are unrebuttedly true. The controversy regarding the contents of such document has to be resolved in the light of pro and contra evidence of the parties. Defendant has not been able to prove that the amount in question was paid either before, or at the time of registration of the deed. Plaintiff was therefore, not obliged to produce any other evidence in this respect after he controverted the contents of the document.
6. Plaintiff had alleged that the suit property was sold by the vendors to the defendant only for rupees twenty five thousands, but the one year's average sale price of the property sold in the vicinity of the disputed property shows that the market value of the suit property was about rupees forty thousands, per Kanal. The total value of eight Kanals seven Marlas land, in this way, comes to Rs,3,34,000 but it was shown to had been sold for rupees five lacs (Rs,5,00,000). The difference between the two amounts is Rs,1,66,000. It has been stated by the defendant that he paid the registration fee as well as stamp duty on the deed in question, which amount has not been added to the market value. There may be fluctuation in the market value of the property either due to rate in the market, or due to relationship of the parties or need of one or other of the parties. The ends of justice will meet if the amount of registration fee, stamp duty and miscellaneous expenses are added to the market rate and the total amount is fixed as rupees five lacs (Rs,5,00,000).
7. The learned Judge of the Appellate Court came to the conclusion that neither Talb-e- Muwathibat nor Talb-e-Ishhad was properly made. Evidence of Ghulam Sarwar, Qadir Khan, Abdur Rashid and Abdul Latif, who appeared as P.Ws. 4 to 7, regarding Talb-e-Muwathibat is consistent.
Not only the place of Majlis, but also the date and time of Majlis have been shown by all the witnesses. Even the date 8-3-1999 and time (4-00 p.m.) at Ilesaara Pul' (Bridge near Hesaara Koroona) have been correctly mentioned by all the above mentioned P.Ws. The controversy as regards obtaining the copy of the registered deed and its availability or otherwise at the time of writing of the notice is not fatal to the case of the plaintiff. The date of registration of the deed was entered as 7-12-1998, the information was allegedly given to the plaintiff on 8-3-1999; the notice was allegedly served on the defendant on 20-3-1999, and the suit was instituted on 22-3-1999. It is not proved on record by the defendant that copy of the registered deed was obtained by the plaintiff before 8-3-1999.
8. Section 31 of the N.-W.F.P. Pre-emption Act, 1987 (hereinafter referred to as the 'the Act') is regarding the period of limitation for a suit to enforce a right of pre-emption. This period is one hundred and twenty days from the date of registration of the sale-deed, for the purposes of the present case. The deed was registered on 7-12-1998 while the suit was instituted on 22-3-1999. The plaintiff took one hundred and five days, out of one hundred and twenty days, to enforce his right of pre-emption, and, so, the suit is within time from the date of registration of the deed.
9. Section 32 of the Act, though not mandatory in nature, has to be taken into consideration for the purposes of Talb-e-Muwathibat, Talb-eIshhad, but not for the purposes of Talb-e-Khusumat. The deed; as mentioned above, was registered on 7-12-1998, and it was to be made further republic through a notice within two weeks from the date of registration of the deed by the Sub-Registrar.
There is nothing to show that the Sub-Registrar had stuck up the said notice on the main entrance of a Mosque or any public place of the village, city or place where the property was situated. It was the duty of the defendant to pay charges to the Sub-Registrar for issue of such notice, but neither the Sub-Registrar tried to recover that amount from the vendee nor the vendee voluntarily paid the said amount to the Sub-Registrar. It has to be presumed that the sale was not known to the general public for at least further fourteen days, even if the document was registered. The pre- emptor is not liable for the fault of the vendee-defendant, and he cannot be held responsible to prove that he did not have' knowledge about the registration of the deed. The negative denial is not to be proved by the pre-emptor, although the respondent has to positively prove that the pre- emptor had the knowledge regarding the sale before 8-3-1999.
10. It was argued that the plaintiff was the father-in-law of Javed Iqbal D.W. And he had every chance to know about the sale in question from him and other relatives. It was further argued that Mst. Raabia sold her share in the suit property to the defendant and she was relative of the plaintiff.
In spite of the fact that she knew that the plaintiff was co-sharer in the suit property, but she sold her share to the defendant without first offering it to him or to take steps in the light of the provisions of section 12 of the Act. Javed Iqbal D.W. Supported the case of the defendant, and that too falsely when he stated that the amount was paid in his presence at home, but the defendant himself stated that the amount was paid in two instalments which was not mentioned by Javed Iqbal, D.W. At any stage.
11. Issue No,2 was framed on the basis of the written statement filed by the defendant, who alleged that the plaintiff was estopped to sue. No evidence was produced by the defendant to prove that how the plaintiff was estopped by his own conduct to sue in the case in hand, and when the plaintiff had so conducted himself. There is nothing on record regarding the conduct of the plaintiff concerning estoppel, and right of waiver. In these circumstances, the plaintiff has to be believed unless H otherwise proved and, it has to be presumed that the plaintiff had got knowledge about the sale on 8-3-1999, the date on which the plaintiff allegedly got information and knowledge about the same, and made Talbe-Muwathibat, unless the contrary is proved: Not only the notice of Talb-e-Ishhed, but also the suit itself was filed within fourteen days from 8-3-1999, and, therefore, in the absence of evidence otherwise, it has been proved by the plaintiff that he got information on 8-3-1999 and made Talb-e-Muwathibat on the said date.
12. The learned Judge of the Appellate Court was of the view that the plaintiff had previous knowledge, that Rashid P.W.6 had arranged money for the purposes of the suit and Qadar Khan P.W.5 did not know the name of the person, who had informed him about the sale in question. As for prior knowledge, it has been mentioned by the plaintiff that he had produced the copy of the registered deed to his counsel when he wanted to prepare notice. This prior knowledge was after 8-3-1999. It is not shown anywhere in the evidence that such knowledge was before 8-3-1999. The statement of P.W.6 regarding the arrangement of money for filing the suit for pre-emption has been quoted wrongly. He stated that at the time of taking Jirga to the defendant, they had arranged money for filing the suit for pre-emption . The Jirga has never been proved to be before 8-3-1999, i,e, the date of Talb-e-Muwathibat. It is not the demand of the Act that the informer shall declare the source of his information as well as the date, time and place where he got the information about the sale. Such information to the informer is not required by law nor necessary for any of the purposes of suit for preemption. A Majlis was always necessary for declaration of Talb-eMuwahtibat. Without a Majlis, which is a requirement for the declaration of Talb-e- Muwathibat, there can be no Talb-e-Muwathibat. The defendant did not prove that there was any Majlis before 8-3-1999 in which the plaintiff had got information. The Majlis mentioned by the pre- emptor or any other Majlis, if mentioned and proved by the vendee defendant, have to be taken into consideration for the purpose of ascertaining the declaration of Talb-e-Muwathibvat. The only Majlis shown in the present case is the Majlis at `Hesaara Pul', and no other Majlis has been shown in evidence of the defendant at any other date, time and place. The Majlis on 8-3-1999 and the declaration of Talb-eMuwathibat on that date, therefore, stand proved.
13. It has been brought on record by the defendant that he went out of the country on 16-2-1999. It is admitted by the plaintiff that the defendant remained some time inside the country and some time outside the country. The defendant never produced the original air ticket regarding his travelling outside the country. The entries in his passport are as much public document as the entries on the AD Card and the record of registration of notice. The signature on the AD Card has never been proved by the defence and to be fake or forged through any cogent evidence. It has also not been proved by him that he did not return to his village after 16-2-1999, and was not available there on 20-3-1999. Munhamir P.W.3 is the person, who had served notice on the defendant. He clearly stated that he knew the defendant personally, as P.W.3 was resident of village Dargai which was at a distance of two furlongs from `Hesaara Koroona'. Mere denial of signature on the AD Card by the defendant, without further ascertainment, in the light of the statement of P.W.3,loses its credit.
14. In the circumstances, it was properly held by the learned Original Court that Talb-e-Muwathibat and Talb-e-Ishhad were duly made by the plaintiff, and the evidence to this extent has been misread by the learned Judge of the Appellate Court. No other point of improvements etc. Has been taken up at this stage, which were finally decided by the learned two Courts.
15. I, therefore, hold that the plaintiff has superior right of preemption, has made Talb-e- Muwathibat and Talb-e-Ishhad properly, has a cause of action, and the market value of the suit property and the expenses made by the defendant are rupees five lacs (Rs,5,00,000) as a whole.
Resultantly, I accept the present Civil Revision, set aside the judgment and decree dated 8-5-2003 of the learned Additional District Judge-II, Charsadda and restore the judgment and decree dated 19-2-2002 of the learned Civil Judge, Charsadda. The plaintiff is ordered to deposit the amount of rupees five lacs (Rs,5,00,000) or the remaining part of it, if not already deposited, and make up the deficiency of court-fee, within the next two months, otherwise his suit shall stand dismissed for non-compliance of both or any of these orders.