' ATTAULLAH KHAN, J.---This revision petition is directed against the concurrent judgments and decrees dated 17-4-2010 and 22-4-2009 passed by the learned District Judge and Civil Judge-I, Lakki respectively, whereby the pre-emption suit of the plaintiff/respondent Rahmatullah Khan was decreed.
2. Briefly stated facts of the case are that Rahmatullah Khan, plaintiff filed a declaratory cum-pre- emption suit against Amir Nawaz Khan etc; defendants, to the effect that in fact mutation No,1313 dated 27-4-2006 is sale but in order to defeat his pre-emptive rights, it has been shown as an exchange mutation. It was further averred in the plaint that the plaintiff had superior right of pre- emption as against the defendants.
3. The defendants hotly contested the suit by filing written statement. The divergent pleadings of the parties gave birth to the framing of thirteen issues. ISSUES:
(1) Whether the plaintiff has got the cause of action? OPP
(2) Whether the suit is within time? OPP
(3) Whether the suit is bad for non-joinder of necessary parties? OPD
(4) Whether the suit of the plaintiff is frivolous, vexatious and the defendant is entitled to the special cost? OPD
(5) Whether the suit of the plaintiff is liable to be rejected for nonpayment of Court fee? OPD
(6) Whether the suit land was exchanged for better management and is exempted from preemption? OPD
(7) Whether the transaction vide the impugned mutation is actually a sale? OPP
(8) Whether the plaintiff has got the superior right of preemption?
(9) Whether the plaintiff has fulfilled the requirements of Section 13 of N.-W.F.P., Pre-emption Act, 1987? OPP
(10) Whether the actual sale consideration is Rs,18750? OPP
(11) What is the market value of the suit land? OP Parties
(12) Whether the plaintiff is entitled to the decree as prayed for? OPP
(13) Relief
4. The learned trial Judge on evaluating the evidence brought on record decreed the suit of the plaintiff, where against appeal of the defendants also failed as mentioned above. Hence, this revision petition.
5. Learned counsel for the petitioners vehemently argued that under section 2(d)(1) of the N.-W.F.P.
Pre-emption Act 1987, the exchange of agriculture land for better management is exempted from pre-emption. According to him, the petitioners have exchanged the land for better management, it is exempt from pre-emption and, therefore, the impugned judgments and decrees of the Courts below are based on surmises and conjectures liable to be set aside.
6. I have considered the arguments of the learned counsel for the petitioners in the light of record of the case.
7. I would first discuss the defence taken by the defendants/ petitioners. In their written statement, they have taken the plea that the exchange was for better management of the suit land and, therefore, it cannot be pre-empted.
8. In this regard, the trial Court has framed issue No,6. The mutation is available on file which shows that it is an exchange of property with the concerned defendant and apparently it does not carry the transaction of sale.
9. In the plaint, the plaintiff has asserted that in fact the mutation is that of sale and not exchange.
So the burden shifts to the defendants/ petitioners to prove that the mutation was of exchange and also for the better management of agricultural land.
10. The parties have produced their evidence. The evidence of D.Ws. 2 and 3 is important. Because they have deposed in support of better management. Both the witnesses have stated that the land was exchanged by defendants 1 and 2 with defendant No,3 in order to get supply of water and path to their land. In their written statement, the defendants have taken the plea of better management but its details are not given, while in their statements, such details of better management are given as approach and irrigation. These two components of better management have not been given in the written statements by the defendants.
11. A Local Commissioner was appointed by the trial Court whose report is available on file. He has recorded statements of the parties and their witnesses and, thereafter, prepared his report. The site plan is also available along with report. From the report, it has been concluded that the exchange mutation was not for better management of the agriculture land duly supported by reasons. One of the reasons is that there is a path to the disputed property which is used by the party concerned.
12. The site plan prepared by the Local Commissioner shows that there is a Nullah between the two properties exchanged by the defendants. The disputed property is not physically contiguous to the property of the defendants. So in my opinion in these circumstances need of path can rarely be believed. Moreover, some of the property is barren and question of irrigation is also doubtful.
13. It is the settled law that unless the defendants prove that the land is exchanged for better management of agriculture property, it would not be exempt from pre-emption.
14. The defendants/petitioners have failed to prove the plea of better management of the suit land through cogent and convincing evidence. Therefore, both the Courts below have rightly held that the disputed property was not exchanged for better management of agriculture property.
15. Now coming to the requirements of Talbs, it is to be noted that the plaintiff/respondent has proved the same through evidence of marginal witnesses in whose presence the talbs were performed. Notices of Ex.P.W.3/1 and Ex.P.W.3/2 have also been established to have been issued by the plaintiff in respect of Talb-e-Ishhad. The official of the postal department appeared as P.W.2 and he confirmed the receipt Ex.P.W.2/1 as correct. These materials are sufficient to prove that all the Talbs were performed as required under section 13 of the N.-W.F.P. Pre-emption Act 1987.
16. Consequently, I find no illegality, irregularity, perversity, misreading or non-reading of evidence in the impugned findings of the Courts below which are accordingly maintained and the revision petition being without substance is hereby dismissed in limine, leaving the parties to bear their own costs.