'ATTAULLAH KHAN, J.- Mst. Nausheen Latif daughter of Latifullah Khan purchased a plot, boundaries of which are described in the heading of the plaint, from Mst. Taj Bibi, through a registered deed No,2031 dated 17-11-1997 for Rs,50.000 but in order to defeat the pre-emption right of the plaintiff, has entered an exaggerated amount of Rs,3,00,000 as per plaint.
2. To pre-empt the said plot, the plaintiff filed a suit for possession through pre-emption against the defendant on the grounds mentioned in the body of the plaint.
3. The suit was contested by the petitioner/defendant by filing her written statement which gave rise to the following issues framed on 16-3-1999:---
(1) Whether the plaintiff has got a cause of action and locus standi?
(2) Whether the suit is time barred?
(3) Whether the plaintiff has failed to affix a proper court-fee?
(4) Whether the plaintiff has superior right of pre-emption?
(5) Whether the plaintiff has established the Talabs under section 13 of the N.-W.F.P. Pre= emption Act, 1987 in accordance with law?
(6) Whether the sale consideration of ' Rs,3,00,000 as shown in the registered deed is fixed in good faith and actually paid?
(7) Market value of the suit property?
(8) Relief.
Additional issue No, 1 .
'Whether in case of decree the defendant will be entitled to the recovery of Rs,14,891.40 as ancillary expenditure to the suit transaction i.e. Stamp duty Rs,9000 + property MC tax Rs,4,500 + petition writer's fee Rs,500+ station fee Rs,891.40 which comes to Rs,14,891.40.
4. After recording evidence of eight witnesses, the plaintiff closed her evidence. The defendant also produced and examined as many as four witnesses.
5. After hearing arguments the of suit the plaintiff was decreed by the learned Civil Judge vide judgment and decree dated 11-10-2005.
6. The above-mentioned decision was challenged in appeal before the learned Addition District Judge, DI who vide judgment and decree 19-7-2007 dismissed the appeal.
7. Now the petitioner/defendant has challenged the above judgment through instant revision petition under section 115 C.P.C.
8. Learned counsel for both the parties heard and record on file perused, in the light of which my discussion is as under.
9. The main argument taken by learned counsel for the petitioner is that Talabs have not been performed in accordance with the law. Local commissioner, who recorded oral evidence has not been examined by learned trial Court and his report is not to be considered. His third argument is that the judgments and decrees of both the lower Courts are based on misreading and non- reading of evidence.
10. On the other hand, learned counsel for the respondent opposed the contentions raised by the petitioner counsel. According to him the Talabs have been performed strictly in accordance with the law and the judgments have been passed by. The Courts below after correctly appreciating the evidence of the parties. In respect of non-examination of local commission he submitted that he was not appointed for some inspection of spot etc. But examination of witnesses, which he has done.
11. I would first discuss the contention regarding non-examination of local commissioner. It appears from the record of the learned trial Court that some of the PWs i.e. P.W.4 to P.W.7 have been examined on 9-2-2005 in the presence of the counsel for the defendant. The last order sheet attached with the evidence shows that both the counsel have signed the statement to the effect that the local commissioner examined the witnesses who were cross-examined by counsel for the opposite party. This statement has been signed by the counsel for the parties including that of defendant/ petitioner as correct. The job of local commission in this particular case was mere recording statement of witnesses and he was required nothing to do on his own. Therefore, there was no need of examination of the local commissioner by the Court. Moreover, no objection has been raised in this regard, regarding the conduct of the local commission and in the absence of such objection there was no need to summon and examine him. Resultantly, this argument of learned counsel for the petitioner is of no avail and is turned down.
12. Next argument is in respect of non-performance of Talabs in accordance with the law. The learned counsel has stressed upon Talb-e-Ishahad. According to him notice under section 13 of the Preemption Act has not been properly served, therefore, it amounts to absence of the said Talab.
He stated that in support of the said demand the plaintiff produced Bashir Ahmad Town Inspector GPO, DI Khan as P.W.1 but he could not prove that the notice was served properly on the defendant.
I have perused the statement of P.W.1 recorded on 6-3-2000. It appears from the statement that the said witness produced the certificate and receipt Exh. PW 1/1 and Exh.PW1/2 respectively, Exh.PW1/1 is regarding the fact that the record after the laps of statutory period has been destroyed as per rules of Postal Department, Exh.PW1/2 is receipt allegedly showing that a registry was sent to the defendant/petitioner. In cross-examination it is deposed by the said witness that the record does not disclose as to what was sent to the addressee through the said receipt. The certificate Exh.PW1/1 discloses that the relevant record has been destroyed in accordance with Rules of Post Office. The receipt is available on file is Exh.PW1/2 which shows that some thing has been posted to defendant on 19th December, which bears No,548. This receipt as well as certificate has not shown as what was sent to the addressee. In cross-examination P.W.1 has stated that his record does not reflect as to which item was sent through this receipt. He has made a very material admission in his cross-examination which is reproduced as under:--- {{URDU TEXT}}
13. I have traced the entire record but there is nothing to prove that the alleged notice sent through receipt Exh.PW1/1 was ever served. Normally the practice of the Pakistan Post Office is that when an item is posted to the addressee, an AD card is annexed which after return shows whether the same is served or not. No such evidence is available on record nor produced by the plaintiff that the registered envelope containing the notice was in fact received by the addressee i.e. Petitioner/defendant. The returned AD card is supposed to be in possession of the plaintiff/respondent and he should have produced it in his evidence before the Court. Its non- production in the Court gives rise to a presumption that the same was not returned, meaning thereby that the registered envelope did not reach to the petitioner/defendant. This fact find support from the evidence produced by the defendant that the address recorded on the receipt is that of DI Khan while the petitioner/defendant was residing in Abbottabad during the relevant period in connection with her medical education. The absence of petitioner/defendant from DI Khan is supported by the statement of Muhammad Tariq, Assistant Ayub Medical College, Abbottabad whose statement was recorded as D. W.1. In his statement he has admitted that the defendant was student of M.M.B.S. In Ayub Medical College, Abbottabad. He also produced a certificate duly signed by the Principal which is available on file as Exh.DW1/1. There are other documents including Exh . DW1/2 and Exh . DW1/3 which support the admission of the defendant in the College. The statement of D.W.1 establishes the plea of the defendant raised in para 8 of the preliminary objection including in written statement that she was residing in Abbottabad.
According to the last Para of the cross examination of D. W.1 the defendant got admission in 1992 and graduated in the month of January, 1999. This gives rise to an inference that the defendant was in Abbottabad from 1992 to 1999 and not available in DI Khan. The fact of absence of defendant from D.I. Khan also find support from the statement of D.W.3 Muhammad Fayyaz Ahmad and D.W.4 Rashidullah Khan. D.W.3 has clearly stated that the defendant remained settled in Abbottabad in connection with her medical education from 17-12-1992 to 22-11-1998. He has further stated that the parents of the defendant also remained settled in connection with service at Peshawar up to February, 2005. It is also stated that the defendant did not come from Abbottabad during her study in Medical College Abbottabad to DI Khan and similar statement has been given by Rashidullah Khan as D.W.2 in which he has confirmed the deposition of D.W.3 about the absence of defendant from DI Khan and her stay at Abbottabad. He has also confirmed that since January 1993 up to February 2005 the parents of defendant remained settled at Peshawar. In cross- examination he has also supported that the defendant used to join her family at Peshawar during vacation. As against this evidence, nothing has been brought in rebuttal to establish that during the relevant period petitioner/defendant was residing at DI Khan.
14. It was the duty of the plaintiff to have proved that the notice was issued to the defendant/vendee/petitioner on proper address. The issuance of notice is fully described in section 13(3) of the N.-W.F.P. Pre-emption Act, 1987.
15. For the sake of ready reference the relevant provision is reproduced below:--- 'S.13(3). (subject to his ability to do so, where) a pre-emptor has made Talb-e-Muwathibat under subsection (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-e-Ishahad by sending a notice in writing attested by two truthful witnesses, under registered cover 'acknowledgment due to the vendee, confirming his intention to exercise the right of preemption: 'Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-e-Ishahad in the presence of two truthful witnesses.
16. The above provision reveals that a mechanism for issue of notice has been prescribed.
According to this provision the plaintiff is required to make Talb-eIshahad by sending a notice in writing under registered cover acknowledgment to the vendee. This mechanism includes two items. First is registered cover and the second is acknowledge due which is normally called AD.
17. Now we have to see as to whether these two requirements have been complied with or not. The relevant statement is that of P.W. 1, who is official of the postal department. He has produced receipt and certificate, Receipt 18.
Exh.PW1/2 is also dubious because nothing can be inferred from it as to whether the registered covered sent under the said receipt was containing a notice or not. If we presume that it contain notice, it is still to be established that whether it was served on the defendant or not. The service can be inferred from AD card which discloses whether it is received by the addressee or refused.
This is an important requirement under section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 and is mandatory. The plaintiff has neither produced the AD card nor produced any supporting evidence regarding its missing or non-availability. The witness of the postal department has also failed to disclose some thing material regarding this item. The AD card is always returned to a person who dispatches and is supposed to be in his possession. In spite of this fact the AD card has not been produced.
18. From the above discussion two facts have emerged. One is regarding the correct address of the defendant/vendee and the second is in respect of non-availability of AD card.
19. It is a settled principle that the notice must be sent to the vendee on correct address and where address of vendee is wrongly inscribed in the envelope, it has been held that the notices are not properly issued and served. Reference may be given to Ikramuddin and others v. Ghulam Ahmad Khan and others 1995 M LD 1689. It is held in the said judgment that the notice should be properly served. The Honourable Court has illustrated the mode of issuance of notice which is reproduced below:- 'It is clear from the above provision that the general rule is that Talb-e-Ishahad could be made through a notice sent through registered post, acknowledgment due and its ingredients are:---
(1) It should be made through notice in writing;
(2) It should be attested by two truthful witnesses, who should be invoked to attest the claim;
(3) Talb-e-Muwathibat should be reiterated;
(4) It should be made soon after Talb-e-Muwathibat but not later than two weeks from the date of knowledge; and
(5) The notice should be addressed at the correct address and sent Through registered post, acknowledgment due.
20. It is also held in the same judgment that:--- 'Now coming to the addresses of the respondents on which the notices were sent. The learned counsel for the appellants argued that as to the notice sent through registered post acknowledgment due there was a presumption to the effect that the same reached their destination. On other hand, the learned counsel for the respondents, with reference to section 26 of General Clauses Act, 1956, argued that presumption is only available when proved that the notices were 'properly' addressed.
'Althrough the address of respondent No,3 in the notice Exh.P7 was give of Chak No,'87-A/6-R'. Yet on the envelope Exh. P.8 his address was written as Chak No, '82A/6-R. This is besides the admitted position that the said respondent was residing at Lahore in his official residence and the fact that Chak No,87- A/6-R consists of four Mohallahs (Abadies). The land and residence of the respondents are situated in the locality known as `Chaubareywali Abadi'. Therefore, at least to the extent of respondent No,3 there was no notice of Talb-e-Ishahad as held in the case of Aliman Begum (supra).
21. In another case Fateh Muhammad and 2 others v. Gul Sher 2000 CLC 409 Lah., it has been held that mere sending of notice is not enough, the receipt has to be established by the plaintiff. The observation of the Honourable Court reads as under:--- 'The postman had also not been produced to establish that these notices reached to the destination. Mere notice is nothing enough in the matter. Its receipts by the defendant had to be established as laid down in case of Muhammad Rafique v. Ghulam Mustafa 1998 M LD 292.
22. Similar principle has been laid down by this Court in case Muhammad Saeed alias Muhammad Savheer and others v. " Jamshed Khan and others reported in 2004 YLR 2067.
23. The apex Court in Muhammad Bashir and others v. Abbas Ali Shah reported in 2007 SCM R 1105 has also enumerated the requirement of notice of Talb-e-Ishahad under section 13 of the Act. It was held in the said judgment that the absence of acknowledgment due card carries importance and it is necessary requirement of law. The relevant observations are reproduced as under:--- 'The requirement of, "sending of notice in writing" is followed by a rider i.e, "under registered cover acknowledgment due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to preempt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgment due" redundant. The service of the addressee, as prescribed in law, therefore, is imperative. If the acknowledgment card carries an endorsement of "refusal" or "not accepted", a presumption of service could arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah, v. Election Officer (1980) 1 Kant LJ 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete with it has been offered to a person but not accepted by it."..
24. The above observations and principles of law of the superior Courts B leads me to the conclusion' that under section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 it is mandatory to send a notice (in respect of Talb-e-Ishahad) through a registered cover acknowledgment due. This mandatory provision and its violation must result in non-suiting of a pre-emptor.
25. In the case in hand as discussed above, notice was not sent to the defendant/petitioner on correct address and secondly the AD is not produced to show and prove that it was received by her. It is always the pre-emptor who is obliged to prove the service of notice but the plaintiff/respondent has failed to do so and clear cut presumption arises under Article 129 of Qanun-e-Shahadat 1984 that the notice had not been served upon the petitioner.
26. The result of my above discussion is that the two Courts below have wrongly held that Talb-e- Ishahad has been made. In fact as discussed above no notice has been served legally on petitioner/ defendant required under section 13(3) Pre-emption Act, 1987. The performance of Talabs is necessary for exercise of right of pre-emption and its failure results in dismissal of suit.
27. In this way the judgments and decrees passed by two Courts below suffer from material irregularity, misreading and non-reading of evidence.
28. The result in nutshell is that the petition succeeds and by accepting the same, the impugned judgments and decrees passed by the Courts below are set aside and consequently the suit of the respondent/plaintiff is dismissed leaving the parties to bear their own cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.