' MAZHAR ALAM KHAN MIANKHEL, J.---This single judgment of mine will dispose of Civil Revision No. 43 of 2005 and Civil Revision No. 206 of 2005, both arising out of the same judgment and decree having common questions of law and facts.
2. A registered sale deed No. 1825 dated 8-8-1995 was pre-empted by one Mst. Bukhari Jan "the petitioner" and Haji Muhammad Akhtar, vendee "the respondent" contested the suit for preemption on factual and legal grounds. The suit of the petitioner was dismissed by the trial Court vide his judgment and decree dated 25-2-2004 only on the ground that she failed to perform the requisite Talbs' in accordance with law. However, the issue of superior right of preemption was decided in her favour but the learned Court of appeal while accepting the appeal, partially decreed the suit by declaring the respondent having the equal right of pre-emption with that of the petitioner.
3. The learned Court of appeal then reversed the findings of the trial Court on the issue of performance of 'Talbs' by declaring that the requisite 'Talbs' were performed by the petitioner in accordance with the law. The petitioner and the respondent, both have impugned the judgment and decree dated 10-11-2009 of the learned Court of appeal through their respective civil revisions.
4. Learned counsel for the petitioner contended that the issue of superior right of pre-emption was decided in favour of petitioner by the trial Court against which no appeal or cross objections were filed by the respondent. So, the findings arrived at by the trial Court attained finality against the respondent and the learned Court of appeal while partially granting decree to the respondent has exercised its jurisdiction illegally and with material irregularity. The respondent had no superior right of preemption at the time of impugned sale, so the decision of the appellate Court under section 20 of the N.-W.F.P Pre-emption Act is against the law.
5. As on the other hand, learned counsel for the respondent while refuting the findings of learned Court of appeal on the question of `Talbs' submitted that the Talbs' were not performed in accordance with the law laid down by the superior Courts of the land on pre-emption and thus the pre-emptor had extinguished his right of pre-emption if any. He further submitted that the question of superior right of preemption on was not dealt with in accordance with the law and the material available on the record. The impugned property had lost its character as that of agricultural land and has attained the status of residential area and as such the preemptor could not claim his right of preemption as co-sharer in the property. As against that the respondent became co-owner in the impugned property as he had earlier purchased the portion of the impugned property which is in the shape of bungalow. So, the respondent had his superior right of pre-emption as compared to that of pre-emptor and submitted for setting aside of the impugned judgment and decree of the learned Court of appeal by dismissing the suit of the petitioner.
6. Learned counsel for the parties were heard at length and record of the case was gone through with their valuable assistance.
7. The record of the case would reveal that the learned appellate Court had partially decreed the pre-emption suit of the petitioner by declaring that both the parties i,e, the pre-emptor and the vendee have equal right of pre-emption and also held that the requisite `Talbs' were also performed by the petitioners in accordance with law. So, the findings of the learned trial Court were set aside/modified to that extent.
8. The perusal of the record would further reveal that the petitioner has been shown to be the co- sharer in the suit Khata. Besides this, the respondent has also become co-owner of the impugned property (which is in the shape of bungalow) on the strength of registered sale deeds prior to the impugned transaction. The record would further reveal that property in question has changed its character from that of agricultural to one that of residential. So, in the given circumstances, the petitioner cannot claim to be the co-sharer of the property and as per site plan present on the file, she can just claim participator in the special rights attached to the property or contiguity with the same whereas the respondent by purchasing portion of the suit property prior to the impugned transaction became co-owner in the same as the property has changed its character from agricultural to that of residential and thus has superior right of pre-emption as compared to that of petitioner. So, the findings of the learned appellate Court on the issue of superior right are modified in the light of above observations that the respondent being co-owner in the suit property has got the superior right of preemption as compared to that of petitioner. Reliance in this regard can well be placed on Ellahi Bakhsh and others v. Allah Bakhsh and others (1982 SCMR 457), Raja Khizar Hayat and others v. Saleh Muhammad (PLD 1986 Lahore 242), Dr. Abdul Jamil v. Malik Nazar Mohyuddin and others (PLD 1988 Peshawar 13), Muhammad Hanif and others v. Subedar Sher Afzal (PLD 1994 Peshawar 188).
9. Now comes the question of performance of `Talbs'. The evidence brought on the record by the petitioner would reveal that the petitioner has bitterly failed to prove the jumping demand of 'Talb- i-Muwathibat' in accordance with law. The petitioner herself failed to give the exact date of performance of Talb-iMuwathibat' and the exact place where she declared her such intention to pre-empt the impugned transaction. Similarly, her informer who happens to be her son failed to mention the exact time and place of performance of 'Talb-i-Muwathibat'. When this being the situation, the performance of Talb-i-Muwathibat cannot be termed to have been performed in accordance with law laid down by the superior Courts of the country. Reliance in this regard can well be placed on Muhammad Akram Mst. Zainab Bibi (2007 SCMR 1086). The witnesses of Talbi- Ishhad' are consistent with regard to performance of the same but when the preemptor failed to prove the very first jumping demand of 'Talb-i-Muwathibat' then no question would arise to prove the subsequent demand of 'Talb-i-Ishhad'.
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10. So, in this view of the matter, by allowing Civil Revision No. 43 of 2005 the findings of the learned appellate Court on the question of performance of Talbs' are hereby set aside whereas connected Civil Revision No. 206 of 2005 filed by the petitioner/pre-emptor is hereby dismissed.