SALIM KHAN, J.- Agricultural land measuring 3 kanals, 7 marlas equal to 176/880 shares, out of 16 kanals, 17 marlas land, in Khasra Nos. 279, 282, 290 and 295 of Mauza Maidan of Tehsil and District Batagram, was sold to Syed Hussain Shah son of Khalil Muhammad Shah vide Mutation No. 334 attested on 7.10.2000. Afsar Ali Shah son of Syed Akbar Shah instituted Suit No. 76/1 of 2001, wherein he alleged that Syed Habib Shah and others sold the suit property to the defendant for Rupees one lac (Rs. 1,00,000/- ) but an amount of Rupees i.e lacs (Rs. 5,00,000/-) was incorrectly entered in the suit mutation in order to ward OF the right of pre-emption of the plaintiff. It was - further contended that the plaintiff got information at the house of Syed Amjad Ali Shah through Faizullah Shah son of Syed Sarwar Shah at 2 p.m. On 19.11.200(3, and the plaintiff declared his intention to pre-empt the suit property in the presence of Syed Amjad Ali Shah and Mubarak Shah.
2. The plaintiff further contended that he sent notice Talb-i-Ishad, duly attested by the two witnesses, and : accompanied by the A.D. Card, to the defendant which was received by the defendant The plaintiff attached the copy of the notice, of the receipts of registration of the notice and the receipt of A.D. Card along with his plaint. The further contention of the plaintiff was that the plaintiff was co-sharer in the suit property while the defendant did not have such a right and the plaintiff also had the right as Shafi Khalit and Shafi Jar, and that no notice was given to the plaintiff regarding the sale in question.
3. This suit was contested by the defendant. After recording evidence of the parties on the basis of the issues arising out of the pleadings of the parties, and hearing arguments of the parties, the learned Civil Judge dismissed the suit of the plaintiff vide his judgment in Suit No. 76/1 of 2001 instituted on 30.1.2001. The main observation of the learned Civil Judge was that there were contradictions in the statement of the P.Ws, regarding Talb-i-Muwathibat, specially that the plaintiff in his statements as P.W. 5 deposed Jo the effect that he along with other witnesses were sitting On a charpoy when the informer about the factum of sale entered the room and informed them, and this statement of P.W. 5 is contradicted by the witnesses when put to them in their cross-examination, and they narrated their own version of the alleged place of performance of Talb-i-Muwathibat.
4. The learned Judge was .Also of the view that there was also a profound contradiction about the fact that who was the first to leave the place of alleged performance of Talb-i-Muwathibat after the said performance and who was left behind. He also found contradiction in the statements of P.W. 5, P.W. 6 and P.W. 7 to the effect that who amongst the alleged witnesses of Talb-i-Muwathibat went with the plaintiff to see him OF. These contradictions were considered by the learned Civil Judge fatal for the right of pre-emption of the plaintiff, considering them major contradictions.
5. The major observation of the learned Civil Judge regarding notice Talb-i-Ishad was that it was sent by the counsel of the plaintiff and he referred to Section 14 of the N.W.F.P. Pre-emption Act, 1987. The learned Civil Judge was of the view that the plaintiff failed to show any inability on his part to send the notices himself.
6. The learned District Judge was of the view that there was a deed copy Ex. D.W. 1/2 between the parties, whereby they had agreed to sell their land in village Maidan of District Datagram and that the same would be sold to the cousins. He was also of the view that Faizullah Shah, informer was not examined, and he took adverse inference against the plaintiff. Ultimately the learned District Judge, Batagram, vide his judgment and decree granted on 29.4,2003 in Appeal No. 21/13 of 2002 instituted on 17.9.2002, dismissed the appeal of the present petitioner. Hence the civil revision in hand, which was contested by the respondent.
7. I heard the learned counsel for the parties and perused the record.
8. It is a proved fact, and admitted by the parties, that the parties are co-sharers in the suit property. This fact is proved from the copy of Fard Intikhab for the year 1997-98 In respect of the suit property. Ordinarily, the plaintiff and the defendant, would share the suit property in equal shares, if the plaintiff proved his case against the defendant. According to the statement of patwari halqa, supported by the Aust Panjsala Ex.P.W. 2/D-1, in the light of other Aust Panjsala Ex. P.W. 2/8, the market value of the suit property comes to Rs. 51,351/20 according to the first Aust Panjsala, while it comes to Rs. 38,796/80 with reference to the second Aust Panjsala. The total land in this case in 3 kanals, 7 marlas. The market value for it, at the rate of Rs. 51,351.20 per kanal, being the highest rate as per Ex. P.W. 2/D-1 produced by the defendant in the cross-examination of the patwari halqa, in Rs. 1,72,026/52. The defendant failed to prove the payment of Rupees i.e lacs (Rs.
5,00,000/-). To the vendor by, any reliable evidence, arid also failed to show that why such exaggerated amount, instead of the above- mentioned amount was entered in the suit mutation.
In the light of the evidence of the parties, specially the reliable evidence of the patwari halqa, the market value of the suit property is Rs. 1,72,026/52. Half of the said amount comes to Rs. 86,013/26, say Rs. 86,100/-
9. The contradictions regarding the sitting of persons on charpois or- otherwise, the entry of any of them as first, second or third to the room, the exact mention of the persons who went out to see OF the plaintiff and of the '
Persons who stayed back are mere details of the sitting/meeting in which Talb-i-Muwathibat was made. The basic questions to be ascertained are whether such a sitting or meeting, was proved, whether information was received during such a sitting or meeting, and whether declaration of intention to pre-empt the suit property was made by the plaintiff. It has categorically been proved by the plaintiff that such sitting/meeting occurred at the house of Syed Amjad ' Ali Shah, that information was received by the plaintiff there and that he made Talb-i-Muwathibat in the said sitting in the presence of witnesses. Other details of the said sitting are related to the memory of human beings, and each and every detail is not expected to be remembered by different persons.
Different persons, generally, give different details of, even, a recent occurrence from different angles, according to their own observations, and it I never expected of human beings to give the exact version regarding details.
10. The informer is the first person to know that he has given information of Sale of a property to the prospective pre-emptor. His evidence is important, specially, when he is the only person meeting the pre-emptor and giving information to him. He becomes the only person who heard the declaration of intention to pre-empt by the pre-emptor. The evidence of. Such informer is necessary and the Court may take an adverse inference against the pre-emptor when the plaintiff records only his statement with regard to information, and fails to produce the informer as his witness. But, those persons, who might have heard the passing of such information by the informer to the prospective pre- emptor, are also the first persons who are witnesses to the delivery of such information, and their evidence is also important. When such persons are produced by, the pre- emptor/plaintiff as witnesses of the delivery of information, and they. Support the passing of information in their presence, if the informer ife not produced, besides the statement of plaintiff/pre-emptor as his own witness, there is no chance for the Court to take adverse inference against the plaintiff/pre-emptor to the effect that the informer, if produced, would have denied the passing of such information. Such denial, even if made, could be rebutted by the evidence of the persons who had heard the passing of the said information, and the evidence of such denying informer and of the witnesses who had heard him while delivering such information will be weighed properly by the Court, without mere supposition or presumption.
11. Section 14 of N.W.F.P. Pre-emption Act, 1987 comes into play where a person is unable to make demands under Section 13. His guardian or agent may make the required demand on his behalf.
Sub-section (3) of Section 13 of the above-mentioned Act is as follows;-- "(3) Subject to his ability to do so, where a pre- emptor has made Talb-i-Muwathibat under sub- section (2),. He shall as soon thereafter as possible but not later than two weeks from the date of notice under Section 32, or knowledge whichever may be earlier make Talb-i-lshhad by sending a notice in writing attested by two . Truthful witnesses, under registered cover acknowledgement due to the vendee confirming his intention to exercise the right of pre-emption. " ,
12. A counsel is neither the guardian nor an agent of a pre-emptor. He is 'the legal advisor of the pre-emptor and he acts under the instructions of the pre-emptor, for and instead of the pre- emptor. All the preparations of sending a notice have been mad$ by the pre-emptor himself, and he gave, instructions to his counsel to send the notice to the vendee, and the counsel acted under the instructions of the pre-emptor. Such sending of the notice by the counsel of the pre-emptor, for all practical purposes, was the sending of the notice by the pre-emptor, and there was no legal defect in such sending .Of the notice.
13. - Once it is proved that the notice was sent by the counsel of the pre-emptor, like all other proceedings for the purposes of the suit of pre-emption, the counsel for the pre-emptor is executed to have acted for and Instead of the pre-emptor, but on his instructions. It has never been prescribed that the pre-emptor should personally go to the post office, meet the concerned clerk, pay the official i.e, and get the notices registered and sent to the vendee- defendant by the post office in his presence.
It is enough that the pre-emptor takes steps to send the notices to the vendee-defendant, and such steps; have been taken in this case by the pre-emptor himself.
14. There was a document between the parties regarding the sale of their own Iands. But those lands have not been sold. The property in question is different from that property of the parties. There is no agreement between the parties that one of the party shall not pre-empt a property purchased by the other party, without the consent of the first party. The existence of the said deed has no relevance with the sale in question. I, therefore, hold that the plaintiff has properly made Talb-I- Muwathibat and Talb-i-lshhad.
15. In the light of the above, I hold that the plaintiff/petitioner is entitled to the decree for possession of half of the suit property through pre-emption. J, therefore, set aside both the impugned judgments of. The learned Civil Judge and the learned Appellate Court mentioned above, and I grant the decree as prayed for in favour of the plaintiff against the defendant to the extent of half of the suit property. The plaintiff shall have to deposit an amount of Rs. 86,100/- or its un-deposited part, in the Court of learned Civil Judge, Batagram, within one month from the date of announcement of this judgment, otherwise his suit shall stand dismissed oft this score. This pre- emptor shall also have to pay . Half of the District Council i.e and mutation i.e paid by the vendee- defendant on official rates, at the time of the execution of the decree in his favour, when either the vendee-defendant/judgment-debtor produces the actual receipts of payment of such fees, or the Executing Court ascertains the same otherwise.