SALIM KHAN, J.---Out of the suit property in Khasra Nos.722, 728, 758, 759, 764, 765, 770, 767, 760 and 766 measuring 76 Kanals, 14 Marlas, an area up to the extent of 7/72 share was sold, vide Mutation No.2323 attested on 27-2-1999. Mst. Farzana Bibi daughter of Mehboob Elahi as well as Sardar Bahadur, rival pre-emptor, instituted Suits Nos.78/1 and 70/1, respectively, on 11-6-1999 and 19-6-1999, which were consolidated and were dismissed on 5-1-2004 by the learned Civil Judge, Haripur. Farzana Bibi contended that she was co-sharer in the suit property and that Abdul- Rashid had informed her on 29-5-1999 at her house at 5 p.m. The defendants contended that the suit property was purchased by them for Rs.10,000 while Farzana Bibi alleged that the said property was sold only for Rs.5,000 but, in order to defeat the right of pre-emptor, an amount of Rs. 10,000 was entered in the suit mutation.
2. Sardar Bahadur filed Appeal No.18/13 on 9-2-2004 while Farzana Bibi filed Appeal No.23/13 on 17- 2-2004. Both the appeals were dismissed. Sardar Bahadur did not file any civil revision while Mst.
Farzana Bibi filed the present Civil Revision No.272 of 2005.
3. The learned Appellate Court, was of the view that the statement of Mst. Farzana Bibi had not supported her claim as she mentioned in her plaint that she was informed on 29-5-1999 at 5 p.m.
But she could not show the time during her statement as she stated that she had not checked the watch. It was further held by the learned Appellate Court that the statement of Abdur Rashid to the extent of information to him was contradictory and not reliable as he had stated once that he was told by the Patwari in the Courts area while he stated again that he was informed by Anwar Khan Patwari somewhere in Haripur city and he did not remember that place. It was further contended that there was contradiction in the statements of P.Ws.4, 5 and 6 regarding relationship of the present petitioner with Ghulam Mustafa P. W., as the present petitioner had stated that Ghulam Mustafa was her relative but she did not know the relationship with him while Abdur Rashid and Ghulam Mustafa stated that Ghulam Mustafa was not related to Mst. Farzana Bibi and he was a resident of village Malkiar. It was further highlighted that Mst. Farzana Bibi had stated as P.W.4 that Ghulam Mustafa and Abdur Rashid had accompanied her to the Courts area for scribing the notice but this statement was not supported by the other witnesses.
4. Mst. Farzana Bibi had stated that she along with Abdur Rashid and Ghulam Mustafa came to the Courts area but Abdur Rashid stated that he accompanied Farzana Bibi to the Courts area. This is not a major contradiction to defeat the right of pre-emption of the plaintiff. The only fact to be ascertained was whether Ghulam Mustafa was present along with Mst. Farzana Bibi and Abdur Rashid at the time of scribing the notice of Talb-i-Ishhad and whether he had witnessed the said notice. Mst. Farzana Bibi being a Pardanashin lady is not expected to all along observe that Ghulam Mustafa was available with her till reaching the Courts area. It is, however, proved that Ghulam Mustafa was available with her, along with Abdur Rashid, in the Courts area at the time when the notice was scribed.
5. It has never been held necessary to find out that who was the informer of the informer and who had provided the information about the sale transaction to the informer, when and at which place.
The minor contradiction in the statement of Abdul Rashid P.W. Is not much important because he once stated that he was informed by the Patwari in Courts area and then stated that he was informed by Anwar Khan Patwari somewhere in Haripur city. The Courts area is also situated in Haripur city.
6. The time was mentioned by the plaintiff in the plaint as well as in notice of Talb-i-Ishhad but when asked about the time she did not mention the exact time for the reason that she had not seen the watch. It has never been held that the exact time must always be mentioned through watch when it can be tentatively shown, like Digar Vela, Shaam, Khuftan etc. Or the time in hours and minutes is given tentatively. The only fact that is to be proved was that whether the information was given to her by Abdur Rashid on 29-5-1999 and if so, at what period of the day and night of 29-5-1999. It was mentioned by Abdur Rashid regarding information to him that he did to remember the exact time of information to him as enough time had passed. The same is true for Mst. Farzana Bibi who is a Parda Nashin lady.
7. It was held by the learned Appellate Court that Abdur Rashid had accepted that he had obtained information about 10 days after the attestation of the mutation. Such information if gathered, and accepted to had been gathered, by Abdur Rashid, is not shown to had been conveyed to Mst.
Farzana Bibi pre-emptor. She is the daughter-in-law of Abdur Rashid, and she is living with Abdur Rashid in the same house, but it has not been brought on record by any evidence that information was given to Mst. Farzana Bibi by Abdur Rashid 'after 10 days of the attestation of the mutation.
8. When the existence of a fact is uncertain, a Court of law is never expected to favour one or the other party by unfounded presumption. The vendor could take steps to inform Farzana Bibi in accordance with the provisions of section 12 of the N.-W.F.P. Pre-emption Act in order to check the intention of Mst. Farzana Bibi to declare or not the intention to pre-empt the suit property, but no such steps have ever been taken by the vendor in this respect. The Revenue Officer, in accordance with the provisions of section 32 of the said Act, could take steps to issue a notice to general public regarding the attestation of the mutation and the vendees-defendants were duty bound to pay the fee for the issuance of such a notice. But they did not pay such fee and the Revenue Officer did not issue such notice which was the requirement of law.
9. It was the burden of the defendants to prove that the plaintiff-pre-emptor had obtained knowledge of the sale in question 'prior to 29-5-1999 in a Majlis or meeting but no such evidence has been produced by the vendees-defendants (present respondents). No one is required by any law or a principle of law or rule of justice and equity to take up the burden of any other person. In the absence of any other alternate evidence of the vendees in this respect, the only evidence regarding the date, time and place of the information and Majlis is that of the plaintiff-pre-emptor which could not be rebutted by the vendees--defendants.
10. It was held that the copy of the original notice was produced by the plaintiff-pre-emptor while that was a secondary evidence and the vendees-defendants were not given a notice to produce the original notices, and hence notice of Talb-i-Ishhad was not proved. The plaintiff-pre-emptor proved the sending of the notice through the statement of Muhammad Aslam Clerk G.P.O. And Muhammad Afsar postman who produced the receipts regarding the sending and delivery of the notices. The copy left with the pre-emptor was the original copy with the plaintiff which, for her purposes, was the original document. The notice sent to the vendees-defendants was not a common document executed by the parties and the fact mentioned therein 'was not to be proved by the signatures or thumb-impressions of both the parties and their witnesses. The original could be produced by the defendants to rebut that the copy produced by the plaintiff-pre-emptor was not genuine and there was difference between the copy and the original. But, the defendants did not produce the original notices to make the genuineness of the original copy of the pre-emptor doubtful.
11. Section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 contains the words "Making Talb-i-Ishhad by sending a notice in writing attested by two truthful witness under registered cover and the acknowledgment due to the vendee, ....". It has never been the intention of law to compel the pre- emptor to prove that the notices were received by the vendees--defendants. The only duty of the pre-emptor is to prove that he/she sent the notices and that has been proved by the plaintiff-pre- emptor of this case. No efforts have been made by the vendees-defendants to show that something else than the notices were sent to them through the registered A.D. Letters. Muhammad Afsar (Muhammad Akhtar) postman categorically stated that the registered letters were received by the defendants.
12. The plaintiff is admittedly to co-sharer in the suit property while the defendants do not have such a right. Patwari Halga has confirmed the value of the suit property as Rs.10,000 and there is no other evidence to rebut the contention that the sale consideration was Rs.10.000 which were duly paid and correctly entered in the mutation. He produced Aust Yaksala which mentioned that the value of the suit property is Rs.2,95,454.97, but the defendants themselves have admitted that they had paid Rs.10,000 as sale consideration.
13. In the light of what has been discussed above. I hold that the plaintiff is a co-sharer in the suit property, that the sale consideration and market value of the suit property is Rs.10,000 which has been paid by the vendees-defendants in good faith, that the plaintiff had properly made Talb-i- Muwathibat on the information given to her by Abdur Rashid on 29-5-1999 at her house, that the contradictions in the statement of Abdur Rashid regarding the other matters except the information to the plaintiff-pre-emptor are not material and that the plaintiff had properly proved that she had sent notice of Talb-i-Ishhad to the defendants on 4-6-1999 (six days after her making Talb-i-Muwathibat).
14. I, therefore, set aside both the impugned judgments and decrees, and grant a decree as prayed in favour of the plaintiff against the defendants on payment of Rs.10,000 as pre-emption money, along with the District Council fee and mutation fee. The plaintiff-pre-emptor/ present petitioner shall deposit the amount of Rs.10,000 or make up the deficiency of the same, within one month from the date of announcement of this judgment, otherwise her suit shall stand dismissed on this ground. She shall also have to pay the District Council fee and the mutation fee to the vendees- defendants during the execution proceedings before taking possession of the suit property through the process of law, after the vendees/defendants produce and the exact receipts of payment of such fee on prescribed official rates, or the learned executing Court ascertains the said amounts otherwise.