SALIM KHAN, J.--- A Suit No.202/1 was instituted on 1-10-1998 by Malik Aman son of Rehmatullah against Gul Muhammad son of Mir Zaman for possession through pre-emption of agricultural land in Khata No.24/71, Khasra No.199 total measuring 15 Kanals, 9 Marlas situated in the area of Mauza Dhanaka sold to the extent of its 56/864 shares equal to 1 Kanal land. The sale was completer) vide Mutation No.278 attested on 15-8-1998. The plaintiff alleged that the suit property was sold for Rs.15,000 while an amount of Rs.3,00,000 was entered in the suit mutation. The plaintiff alleged that he got information about the sale in question on 15-8-1998 at 12 noon at Qazi Hotel Lassan Nawab and he objected to the said sale in the same Majlis in the presence of Jan Muhammad son of Samandar Khan and Jan Muhammad son of Faqir Muhammad, and thus, made Talb-i- Muwathibat. It was further contended by the plaintiff that he sent notice Talb-i-Ishhad on 17-8- 1978, witnessed by the above named two persons which was sent through a registered A.D. Letter, dated 18-8-1998. The original notice, the envelope and the receipt of the post office were attached by the plaintiff with his plaint. He further contended that he was Shafi Sharik, Shall Khalit and Shafi Jar regarding the suit property, and that the defendant refused to transfer the suit property to him, therefore, he instituted the suit, which was filed on 1-10-1998.
2. The evidence of the parties was recorded on the basis of issues framed with relation to the pleadings of the parties.
3. The issues regarding the sale consideration and market value were Issues Nos.8 and 9. An amount of Rs.30,000 was mentioned in Issue No.8, although the figure mentioned in the mutation was Rupees three lacs (Rs.3,00,000). The defendant had also stressed in para. 1 of the written statement that he had purchased the suit property for Rs.3,00,000. It was also stressed by Khalid Urfan son of Mir Afzal, attorney of the defendant, that an amount of Rs.3,00,000 was paid to the vendor and the sale transaction had taken place about one year before the attestation of mutation. The statement of Patwari Halqa as P.W.2, however, does not support the version of any of the two parties, which is to the effect that, according to the average as per Exh.P.W.2/5, the market value of 12 Marlas land is Rs.16,718.16 while 8 Marlas land is Kharij-az-Parta and the value of the same has not been given. He stated that he has not mentioned any mutation regarding purchase of land for construction in the said five years average as no such land was sold for the purpose of construction of a house.
4. He gave the per Kanal price of Maira land as Rs.27,863.60 and calculated the per Kanal market price of Rakkar and Katti land as Rs.13,931.80. Proper consideration was not given to this fact and the amount of Rs.3,00,000 as sale consideration was accepted by the learned Civil Judge, on the ground that the plaintiff had not proved the negative, although the defendant was to prove the positive as it was asserted by him. Neither Rs.16,718.16 is the value of the total suit property nor it is Rs.3,00,000. The Kharij-az-Parta 8 Marlas land has not been valued by Patwari Halqa. The only evidence available is that of Aust Panjsala Exh.P.W.2/5 which mentions the highest rate in the area as Rs.27,863.60 per Kanal. The value of 8 Marlas had according to the value of Maira land comes to Rs.11,145.44. The total value of the suit property could, thus, be about (Rs.16,718.16+Rs.11,145.44= Rs.27,863.60), it is worth mentioning that neither the learned Civil Judge, in spite of holding that the amount of Rs.3,00,000 was paid, nor the learned Additional District Judge, in spite of hearing arguments and perusing the record, corrected the issue No.8. The learned Civil Judge and the learned Appellate Court dismissed the suit and appeal of the pre-emptor. Hence this revision.
5. As discussed above, the market value of the total 1 Kanal suit-land comes to Rs.27,863.60 which is near to Rupees thirty thousands (Rs.30,000) as mentioned in Issue No.8. D.W.2 (Mehmood Khan son of Jalal Khan) had admitted that no transaction of payment of sale consideration had taken place in his presence. The attorney of the defendant had said that he was present at the time of payment to Juma Khan and the defendant paid the amount in different currency notes but he did not remember the number of notes in accordance to their denomination and stated that the notes were in the purse/bag of the defendant.
6. I, therefore, hold that the market value of the suit property, and its sale price is Rs.30,000, as no other amount has been proved by the defendant. As for the superior right of pre-emption, it is admitted that Khasra Nos.198, 201 and 202 belonging to the plaintiff were contiguous to the suit property in Khasra No.199 while Khasra No.200 of the defendant was contiguous to the said Khasra No.199. It means that both the parties had equal rights of pre-emption and the property was ordinarily to be equally divided between them. It is no good reason to say that the plaintiff claimed that he was Shafi Sharik, Shafi Khalit and Shafi Jar, but he did not say anything in his evidence to the effect that he was Shafi Jar. The fact of right of pre-emption of the plaintiff was already proved by the evidence of the Patwari Halqa, produced as a P. W., and by the Revenue Record produced by him, and that was sufficient evidence of the rights of the parties. The plaintiff had categorically stated that he was Khata Sharik in the suit property. Though that fact was not proved but the fact of his right of pre-emption on the basis of contiguity was proved by the statement of Patwari, and right of pre-emption on the basis of contiguity could not be denied to him.
7. It was contended at the time of arguments before me that the plaintiff had stated that his objection was written on the mutation itself. This fact is admitted, but the objection of the learned counsel for respondent was that it was mentioned on the mutation that the plaintiff was objecting to the sale on the ground that he was Khata Sharik, and the fact of his Bana Sharik was not mentioned therein. Once a right of pre-emption is declared and the intention to purchase the said property in preference to the other is shown, and that fact*is proved, it has never been held that what were the exact words which were to be used for the purpose of declaration of intention of Talb-i-Muwathibat. The fact of objection of the plaintiff on the mutation at the time of its attestation shows that he had declared his intention to exercise his right of pre-emption over the sale in question.
8. The fact of sending of the registered A.D. Notice to the defendant has been proved by the statement of Haji Fazal Karim Branch Post Master. He mentioned that when the letter was received, it came to his knowledge that the defendant was at Karachi, therefore, he returned the letter. The demand of subsection (3) of section 13 of the N.-W.F.P. Pre-emption Act, 1987 is that a registered A.D. Notice be sent, and when it is proved that such a notice was sent by the pre-emptor, it is immaterial whether the notice was or was not received by the vendee-defendant as the process of delivery of the notice is never in the control of the pre-emptor, and is never the requirement of any law.
9. In these circumstances, I hold that the value of the suit property is Rs.30,000, that the plaintiff has equal right with the defendant as owner of property contiguous to the suit Khasra No.199, and that the plaintiff had properly made Talb-i-Muwathibat and Talb-i-Ishhad within three days from the date of attestation of the mutation, including the day of attestation of the said mutation. I, therefore, accept the civil revision, set aside both the impugned judgments and decrees and grant the decree for possession through pre-emption in favour of the plaintiff against the defendant to the extent of half of the suit property on the payment of Rs.15,000 to be deposited by the plaintiff within one month from the date of announcement of this judgment, otherwise the suit of the plaintiff shall stand dismissed. I further hold that the plaintiff is liable to pay the District Council fee and the mutation fee, paid by the vendee-defendant on official rates, at the time of execution of the decree, when the defendant produces the exact official receipts regarding the payment of taxes/fees mentioned above. I order accordingly.
Announced.