MUHAMMAD QAIM JAN KHAN, J.--- This is a civil appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment of a learned Single Judge of the Peshawar High Court, Peshawar, dated 13-6-2003 passed in Civil Revision No,582 of 2000.
1. Short facts of the case are that respondent, Haji Fazal Subhan son of Haji Gul Nabi instituted a suit for possession by pre-emption against the appellants, Taza Gul, etc. In the Court of Civil Judge, Takht Bhai, District Mardan in respect of land measuring 74 Kanals, 18 Marlas mentioned in detail in the headings of the plaint at a price' of Rs,2,00,000. It was further alleged in the plaint that the defendants/appellants without any notice to the plaintiff-preemptors/respondent purchased the above mentioned land from Abdul Rauf vide Mutation No,120 attested on 24-2-1998 for a sale consideration of Rs,2,00,000 but in order to defeat his pre-emptive right entered a fancy amount in the sale mutation; that the plaintiff/ respondent had got superior right of pre-emption on all the three grounds than the defendants-vendees/appellants; that the plaintiff/ respondent was informed by one Muhammad Shoaib at his Hujra at 4-00 p.m. On Thursday i.e, 21-5-1998 in the presence of Haji Sher Bahadur and Zabita Khan. The plaintiff/respondent there and then performed Talb-iMuwathibat and proclaimed his right of pre-emption on 25-5-1998, Monday at 10-00 a.m.
And in the presence of the above mentioned two witnesses sent a notice of Talb-i-Ishhad to the defendants-vendees/ appellants which was never answered; that the defendants/appellants were asked to accept an amount of Rs,2,00,000 and hand over the suit property to the plaintiff/respondent but as they refused, therefore, the pre-emption suit.
2. The defendants/appellants vehemently contested the suit by filing their written statements and on the divergent pleas of the respective parties, the trial Court framed almost nine issues apart from relief. The parties led their evidence as they wished and after hearing the learned counsel for the parties and going through the record, the learned trial Judge decreed the suit in favour of the plaintiff/ respondent at price of Rs,9,36,250 vide judgment and decree, dated 12-6-2000.
3. Dissatisfied with the said judgment and decree defendants/ appellants preferred appeal in the Court of Additional District Judge, Mardan at Takht Bhai. The said Court after hearing the respective counsel for the parties and perusal of the record, accepted the appeal by setting aside the judgment of the trial Court and dismissed the suit of the plaintiff/respondent vide judgment, dated 21-7-2000.
4. Aggrieved from the judgment of the Appellate Court the plaintiff/respondent preferred Civil Revision No,582 of 2000 before the Peshawar High Court Peshawar and a learned single Judge after hearing the respective parties and going through the record accepted the revision petition, set aside the judgment impugned therein, dated 21-7-2000 passed in Civil Appeal No,73/13 of 2000 and restored that of the trial Court, dated 12-6-2000 passed in Civil Suit No,148/1 of 1998 with no order as to costs. The defendants/appellants Haji Taza Gul etc. Feeling aggrieved of the said judgment, dated 13-6-2003 preferred the instant civil appeal.
5. We have heard the learned counsel for the appellants and the respondent at length and have also perused the available record. The moot point in this civil appeal is that whether the plaintiff/respondent has got the knowledge of the sale prior to the attestation of sale Mutation No,120, dated 24-2-1998 and whether the plaintiff/respondent has waived his right or he was estopped to bring the suit for pre-emption. The contention of the learned counsel for the defendants/appellants is that the plaintiff-pre-emptor/respondent was a perfect knowledge of the impugned sale one year prior to the attestation of the impugned sale mutation and they had produced sufficient evidence in this behalf which has been deliberately discarded by the learned Single Judge in Chambers of the Peshawar High Court. Admittedly, right of pre-emption arises according to section 5 of the N.-W.F.P. Pre-emption Act, 1987 out of a sale as defined in section 2(b) thereof. The definition of sale according to the said section is 'sale means permanent transfer of ownership of an immovable property in exchange for a valuable consideration and includes transfer of immovable property by way of Hiba-bil-Iwaz or Hiba-bil-Shart-al-Iwaz but does not include..." In the instant case admittedly the process of sale is spread over a period of one year but finally it completed on 24-2-1998 in the shape of sale mutation when the entire sale consideration was paid by the vendees to the vendor. From the available evidence it is nowhere proved that the plaintiff-preemptor/respondent was a party in the previous suit between the landlord and the tenant nor he was a witness in that case nor he took any active part in the completion of the sale though he was present in the earlier Jirghas(?) but the transaction is spread over a period of one year and it is amply proved on the record that he was informed by Muhammad Shoaib P.W.8 regarding the completion' of the sale and sale mutation. Muhammad Shoaib, the informer and the two witnesses who were present there i.e, Sher Bahadur P.W.6 and Zabita Khan P.W.7 successfully undergone that test of cross-examination and these points have been elaborately discussed by the learned Single Judge of the Peshawar High Court, so summing the entire evidence the suit of the plaintiff/respondent was well within time. Nothing is available on the record to prove any type of waiver of estoppel against the respondent. The appellants who were defendants in the original suit seem to be disinterested as is reflected from their written statements. They have filed just and evasive type of written statements and have not complied with the various provisions regarding written statement. Learned counsel for the defendants/ appellants has got no satisfactory answer in this regard. As far as the price market value and right of pre-emption are concerned those were not touched by the learned counsel for the appellants, therefore, the appeal in hand having no legal force is hereby dismissed. No order as to costs.