ABDUL HAMEED DOGAR, J.--- Petitioners seek leave to appeal against the judgment, dated 23-.5- 2006 of a learned Single Judge of the Peshawar High Court, Abbottabad Bench whereby Civil Revision No,135 of 2002 filed by the petitioners was dismissed and decree of the First Appellate Court was upheld and suit for possession through preemption filed by respondent was decreed in the sum of Rs,5,40,000 along with Rs,47,845 as the amount of improvements. It was also directed to respondent to pay the officially paid District Council fee and mutation fee on the prescribed rates to the vendees-defendant at the time of execution of decree.
2. Briefly, stated, facts giving rise to the filing of instant petition are that suit-land measuring 5 Kanals and 2 Marlas situated in Mauza Oghi District Mansehra was sold by Mst. Muniza Zaman to petitioners vide Mutation No,4281 attested on 25-4-1994 against a consideration of Rs,5,40,000. As soon as respondent came to know about the sale, he announced his intention to purchase the suit-land claiming his superior right of pre-emption on the ground that the suit property was contiguous to his property. He made Talb-i-Muwathibat and sent notices through registered A.D.
Letters. It was clearly mentioned in the notice that information about sale was received by respondent on 25-4-1994 and he made Talb-i-Muwathibat in the presence of Muhammad Sadiq, Sultan Muhammad, Ghulam Muhammad and Muhammad Sindhi. Notice of Talb-i-Ishhad was sent on 7-5-1994. Thereafter, he filed suit for possession through pre-emption against petitioners, which was initially decreed by learned Civil Judge, Oghi on 23-7-1996. But in the post-remand proceeding the suit was dismissed on 27-10-1998. Feeling aggrieved, respondent filed appeal which was allowed by the learned Additional District Judge Mansehra on 11-9-2002 and decree for possession through pre-emption on payment of Rs,5,40,000 was granted in favor of respondent. The said judgment was assailed by petitioners before learned Peshawar High Court, Abbottabad Bench through Civil Revision No,135 of 2002. Which was dismissed as stated above vide impugned judgment.
3. We have heard Ch. Imtiaz Ahmad, Senior Advocate Supreme Court for the petitioner and Ch. Akhtar Ali, learned Advocate-on-Record for the respondent at length and have gone through the record and proceedings of the case in minute particulars.
4.. Learned counsel for the petitioners vehemently contended that learned High Court has not appreciated the material brought on record in its true perspective which resulted in miscarriage of justice. According to him, the pre-requisite conditions of Talb-i-Muwathibat and Talb-iIshhad as prescribed by the law were not fulfilled in this case. Neither any date on which plaintiff/respondent Malik Aman came to know about the sale was disclosed by him in the plaint nor the date on which he desired to pre-empt the land after coming to know for the same was disclosed. Even the names of two truthful witnesses in whose presence he made declaration to pre-empt have not been mentioned. He vehemently urged that requirements of Talb-i-Muwathibat cannot be fulfilled unless the details, particulars, date, time and place are specifically indicated in the plaint and the names of the persons in whose presence such Taib was made. Lastly the learned counsel contended that the judgment of trial Court is well-reasoned and is based on proper appraisal of evidence and is, in accordance with law, as such, the same may be maintained. He vehemently stressed upon the case of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 wherein, it was held that it is important for the plaintiff to disclose the date and time of the performance of Talb-i-Muwathibat in the plaint so as to prove the immediate exercise thereof and also as to whether he performed Talb-iMuwathibat in the same meeting and before the dispersal thereof, which is a clear indication of compulsion on the prospective pre-emptor that he has to make Talb- i-Muwathibat in between the period of his having received the information in the Majlis and the dispersal of the Majlis and beyond such limitation, the Talb exercised could be invalid. Talb-iIshhad has to be completed within 15 days after the performance of Talb-i-Muwathibat. Pre-emptor can be non-suited for non-performance of Talb-i-Ishhad as well and the performance of same has to be limited with performance of. Talb-i-Muwathibat.
6. (sic) On the other hand learned counsel for the respondent controverted the above contentions and contended that impugned judgment does not suffer from any legal flaw and that all the P. Ws.
Examined are unanimous about the date, time and place of gaining of knowledge by the respondent regarding sale and have deposed that respondent instantly expressed his intention of pre-empting the sale. He further contended that respondent has proved the Talb-i-Ishhad by producing its marginal witnesses, namely, P.W.4 Muhammad Sadiq and P.W.5 Ghulam Muhammad who without any contradiction supported the case of respondent on making Talbs. He further contended that even service of notice on petitioners is established through the testimony of independent witness, P.W.2 Muhammad Suleman, Postman who produced the original receipts..
According to him, the manner of making Talb-i-Muwathibat and sending the notice of Talb-i- Ishhad have been elaborately discussed by a larger Bench of this Court in the case of Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCM R 329 and the case of respondent is at par with that case as such it being a decision of larger Bench is binding on the decision of smaller Bench of this Court.
7. Admittedly, respondent in the plaint claimed the right of preemption on the basis of being Shall Jar and Shall Khalit. Respondent on coming to know about the sale immediately disclosed his intention to preempt the suit-land in the presence of P.W.4 Muhammad Sadiq, P.W.5 Ghulam Khan, P.W.6 Sultan Muhammad and P.W.7 Muhammad Sindhi. The factum of sending of notice Talb-i- Ishhad after getting it attested by two truthful witnesses stood established on the record. As regards the right of pre-emption, it has been established that respondent had the superior right of pre-emption on the basis of common boundary line, common rite of passage and common right of irrigation. Above all, there is no exception to the concurrent findings of the two Courts below on both Talbs, which are made well in accordance with law. In the case of Haji Noor Muhammad (supra) it has been held that the plaintiff could not be non-suited merely on the ground that other details of time and place of Talbs and names of witnesses etc. Had not been specifically mentioned in the plaint. In the case of Allah Bakhsh and another v. Falak Sher 2004 SCM R 1580 this Court had held that minor discrepancies of time could not come in the way of pre-emptor. This Court also held in the case of Abdul Malik v. Muhammad Latif 1999 SCM R 717 that the service of registered notice by pre-emptor containing the names of two truthful witnesses before whom Talb-i-lshhad was allegedly made amounted to substantial compliance of the provisions of law.
Learned counsel for petitioners though argued at length yet could not refer to any illegality, misreading or non-appraisal of evidence.
8. For what has been discussed above, we do not find any reason to interfere with the concurrent findings of two Courts below. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.