SALIM KHAN, J.---This judgment ,will dispose of Civil Revision No.36 of 2003, Civil Revision No.37 of 2003 and Civil Revision No.38 of 2003, each instituted by Syed Afsar Ali Shah against Syed Hassan Shah. The facts of the three cases are similar, with minor variations. The plaintiff brought a Suit No.131/1 of 2000 against the defendant regarding Mutation No.325 attested on 12-6-2000 vide which an area of 3 Kanals, 9 Marlas was sold by the vendor to the vendee-defendant vide the above mentioned mutation. The area shown sold through the said Mutation is 69/377 shares out of total land of 16 Kanals, 17 Marlas in Khasra Nos.279, 282, 290 and 295. It was alleged by the plaintiff that he came to know about the sale in question on 23-6-2000 at 8 p.m. In the Baithak of Syed Sarwar Shah where Nadar Shah informed him and he declared Talb-i-Muwathibat in the presence of Amjad Ali Shah and Mubarak. 'He further contended that he sent notice Talb-i-Ishhad on 24-6- 2000 to the defendant and kept the certified copy of the same with himself. That certified copy and the receipt of the post office' and of registration were attached by the plaintiff with his plaint.
Another Suit No.132/1 of 2000 was instituted by the same plaintiff against the same defendant regarding 14/337 shares out of 16 Kanals, 17 Marlas land in the same Khasra Nos.279, 282, 290 and
295. The plaintiff alleged that he came to know about the said sale through Nadar Shah son of Sarwar Shah in the Baithak of Sarwar Shah at 8 p.m. On 23-6-2000 and he declared his intention to pre-empt in the presence of Amjad Ali Shah and Syed Mubarak Shah in the said sitting, and sent notice Talb-i-Ishhad to the defendant on 24-6-2000. The area sold though the said mutation comes to 14 Marlas. Another Suit No.130/1 was instituted by the same plaintiff against the same defendant regarding the same Khasra numbers out of which 5/337 shares of the land was sold vide Mutation No.326 attested on 12-6-2000. The date and time as well as the place of Talb-i- Muwathibat and the names of the informer and the witnesses are the same as mentioned above, and the date of sending the notice is also the same as mentioned above. In all the three cases, the suit of the plaintiff was dismissed and the appeal also dismissed, hence the abovementioned civil revisions.
2. While deciding Suit No.131/1, the learned Civil Judge, Battagram contended about the Issues Nos.8 and 9 regarding the sale consideration and market value, that the plaintiff did not know exactly about the sale consideration and he had stated that he heard from other people, that the suit-land was sold on payment of Rs.60,000. Keeping in view this statement, the learned Civil Judge came to the conclusion that the sale consideration of Rs.5,00,000 was the actual price of the suit-land. The statement of Patwari Halga, however, clearly shows that the market value of the suit property was Rs.38,796.80 per Kanal. No other amount as the market value of the suit property has been proved by any of the two parties. It was not the plaintiff who was to prove the otherwise rather it was the vendee-defendant who was to prove the payment of the actual sale price other than the one mentioned by the Patwari Halga. The defendant did not bring any evidence worth reliance regarding the sale consideration and market, value of the suit property otherwise then that mentioned by the Patwari Halga. I hold that the market value of the suit property is Rs.38,796.80 and the value of 3 Kanals, 9 Marlas land sold vide Mutation No.325 attested on 12-6-2000 is Rs.1,33,848.96, say, Rs.1,34,000. Half of that amount is Rs.67,000. The market value of 14 Marlas land sold vide Mutation No.328 attested on 12-6-2000 is Rs.27,157.76, say, Rs.27,200. Half of that amount is Rs.13,600. The market value of 5 Marlas land sold vide Mutation No.326 attested on 12-6-2000 is Rs.9,699.20, say Rs.9,700 and half of that amount is Rs.4,850.
3. It has been proved on record and not denied by the learned counsel for the parties that the plaintiff as well as the defendant are co-sharers in the suit property. This fact is also borne out by the entries regarding various mutations on the Fard Intikhab from Register Haqdaran-e-Zamin for the year 1997-98 wherein Afsar Ali Shah along with his two brothers Syed Yousaf Shah and Abdullah Shah is shown as one of the heirs of Akbar Ali Shah, in the column of ownership for the suit Khasra numbers, while Syed Hassan Shah has been shown as one of the heirs of Khalil Muhammad Shah vide Mutation No.324 attested on 11-5-2000. It means that both the parties have equal right of pre- emption with regard to the suit transaction and ordinarily the suit property is to be equally divided between them.
4. The learned counsel for the respondent objected in all the three cases that a document was scribed between the parties and other relatives that they would not sell their property to outsiders and first right of pre-emption will be given to a relative, and the plaintiff had previously sold some of his property to the defendant himself, therefore, the plaintiff was not the actual pre-emptor, and his suits for pre-emption were for the benefit of other persons. This fact, however, is not proved on record. There were deeds between the parties regarding sale of their properties. For the reason that those were small pieces of land, the relatives did not want to diminish the value of their lands by selling them piecemeal, they, hence, entered into an agreement with each other that their own properties will be sold to relatives first and not the others. That document is not relevant to 'the sale in question, as both the parties have equal rights regarding the suit property, one of the relatives had not sold the suit property to another relative with the consent of all the relatives.
5. The plaintiff alleged that he came to know about the suit transaction through Nadar Shah son of Syed Sarwar Shah but did not produce Syed Nadar Shah as a witness. The learned counsel for the respondent contended that the non-production of the informer as a witness was a fact which was to be taken adversely against the plaintiff under Article 129(g) of Qanun-e-Shahadat, 1984. The learned counsel for the plaintiff-petitioner, however, replied that the statement of informer would be the best available evidence, and the non-production of such informer could give rise to adverse inference against the plaintiff, if the informer was the only witness of the Talb-i-Muwathibat and he was not produced as a witness in Court. He further contended that the adverse inference would be taken against the present pre-emptor when the informer was named in the plaint but was not produced. He further contended that the informer was not the only witness of declaration of intention to pre-empt by the plaintiff, and the fact of information as well as declaration of intention was otherwise proved by the plaintiff-petitioner through Syed Amjad Ali Shah and Syed Mubarak Shah P.Ws. He was of the view that there was no need for producing Nadar Shah as P.W. As the other witnesses of the information and the making of Talb were available to the plaintiff and he produced them. Their statements were also regarding the first hand information and, in no way, could be dubbed as hearsay evidence.
6. As far the fact of sending notice Talb-i-Ishhad, it has been sufficiently proved by the plaintiff that such a notice had been sent by him to the defendant and the evidence to this effect is reliable as it is supported by the official documents.
7. The statement of an informer, when he is the only witness of Talb-i-Muwathibat is the best available evidence regarding the date, time and place of information to the pre-emptor and the making of Talb-i-Muwathibat and his non-production as a witness would weaken the statement of the plaintiff to the extent that it may be adversely presumed by the Court that had that informer been produced, he would have stated against the pre-emptor, and therefore, he was not produced. But, when there are other witnesses besides the informer himself regarding the information delivered to the pre-emptor at a certain date, time and place, the production of those other witnesses regarding the fact of information to the pre-emptor and the fact of his making Talb-i-Muwathibat would be sufficient evidence available to, and produced by the pre-emptor, to further support his statement regarding the information and the making of Talb-i-Muwathibat.
8. It is worth mentioning at this stage that it is not always a must for a Court of law to take adverse inference of something as it is discretionary/empowering for it to take such inference, and such a Court may or may not take such adverse inference, keeping in view the circumstances of each case independently. There may be cases when the statement of only the pre-emptor is so much authentic and reliable that the non-production of any other witness in support of the same may not be necessary, and in such cases, the Court is not bound by any law to take adverse inference against the plaintiff for non-production of any other witness.
9. In the circumstances of this case, it is clear that the three suit Mutations Nos.325, 328 and 326 respectively were attested on 12-6-2000 while the declaration of Talb-i-Muwathibat was made on 23-6-2000 and the notices were sent on 24-6-2000. This shows the seriousness of the plaintiff regarding his intention to pre-empt the suit property. No other Majlis has been shown by the vendee-defendant in which the plaintiff could be shown to have received the information but had not made Talb--i-Muwathibat. There is nothing on record to show that any notice was given to the plaintiff by the vendee-defendant in the light of section 12 of the N.-W.F.P. Pre-emption Act, 1987, or any notice was given to the general public by the concerned Revenue Officer at the expense of the vendee-defendant. As there are no efforts by the vendor and the vendee to inform the plaintiff- pre-emptor regarding the sale in question either directly or through the concerned Revenue Officer, it is the date, time and place of the knowledge of the pre-emptor, and, that too, within 14 days from the date of the attestation of the suit mutations, which is to be taken into consideration and accepted correct.
10. The arguments of the learned counsel for the parties, and the perusal of record, as well as the above discussion, have brought me to the conclusion that the plaintiff is entitled to the decree for possession through pre-emption to the extent of half of the suit property in each of three cases on the payment of half of the sale considerations as held above, within one month, by depositing it in the trial Court, otherwise the suits of the plaintiff-pre-emptor/petitioner or, as the case may be, one or more of such suits, for which the amount is not so deposited, would stand dismissed on this ground.
11. I, therefore, set aside the impugned judgments and decrees dated 27-5-2002 of the learned Civil Judge, Battagram and the impugned judgments and decrees of the learned appellate Court dated 23-12-2002 ,in all the above mentioned three cases, and grant the decree as prayed for in favour of the plaintiff against the defendant to the extent of half of the suit property in each of the three cases on payment of half of the sale consideration in each of the three cases within one month from the date of announcement of this judgment, to be deposited in the learned trial Court, otherwise the suit of the plaintiff in the case in which he does not deposit the pre-emption amount as aforesaid, would stand dismissed. I further hold that the plaintiff will be liable and will have to pay half of the official expenses of the vendee-defendant, paid by him legally as District Council fee and mutation fee in each case, at the time of execution of the respective decree, when the vendee-defendant shall produce the actual receipts of payment or the Court ascertain the same otherwise.
Announced.