' MAZHAR ALAM KHAN MIANKHEL, J.--- Through this single judgment, I intend to dispose of Civil Revisions Nos.1021 of 2009 and 1278 of 2009 arising out of the same judgment in a pre-emption matter.
2. A sale of an area of 2 Kanals and 10 Marlas situated in Khata Nos.52/71 comprising of four Khasra Nos.1222/474, 499/2, 499/3 and 470, out of an area of 50 Kanals 13 Marlas effected through Mutation No,3413 dated 19-11-2007 in favour of Muhammad Gul respondent. The same was pre- empted by Muhammad Iqbal, the present petitioner. The present petitioner was non-suited for non-performance of `Talbs' in accordance with law as well as for having no superior right of preemption regarding suit property. The suit of the petitioner was dismissed by the two Courts below.
3. The present petitioner has challenged the findings of the two Courts below with regard to the above issues whereas respondent herein has filed his separate Revision bearing No,C.R.No,1278 of 2009 for expenses incurred by him on the attestation of mutation in the shape of Government taxes.
4. Learned counsel for the petitioner submitted that he has successfully proved the performance of 'Talbs' in accordance with law and he had also superior right of pre-emption with regard to the suit property but the two Courts below have misread and misinterpreted the law in this regard and requested for acceptance of the present petition.
5. On the other hand, the learned counsel for the respondent submitted that the pre-emptor has failed to prove the performance of 'Talbs' in accordance with law as the evidence on the record reflects that the performance of 'Talb-i-Muwathibae was delayed by fifteen minutes whereas he was required to perform such `Talbs' there and then without any delay. So, such delay of fifteen minutes would extinguish his right of pre-emption. He further submitted that the pre-emptor had no right of pre-emption with regard to the suit property and the two Courts below have rightly concurred on the above points. He further submitted that the two Courts below also failed to grant a decree in his favour regarding the expenses incurred by him in the shape of Government taxes at the time of attestation of mutation for which he was legally entitled.
5-A. I have heard the learned counsel for the parties at length and have perused the record of the case.
6. After having gone through the record, it transpired that the transaction of sale was effected in four Khasra numbers measuring 50 Kanals 13 Marlas out of which 2 Kanals 10 Marlas was purchased by the vendee/respondent. The petitioner had contiguity only with Khasra No,470 on the basis of Khasra No,476 whereas he had no contiguity with the rest of the three Khasra numbers nor the impugned Khasra numbers formed a compact block. So, apparently the petitioner seems to have a superior right of pre-emption on the basis of contiguity to the extent of one Khasra number.
But on the other hand, the vendee-respondent can safely defeat the right of pre-emption by becoming co-sharer in the disputed property on the strength of the remaining three Khasra numbers. He being a co-sharer has a preferential right of pre-emption as compared to plaintiff/petitioner who happens to be the contiguous owner of the suit property. Reliance in this regard can safely be placed on Mst. Gul Rangeena v. Khushal Khan 1999 CLC page 831.
6-A. As far as the question of performance of `Talbs' is concerned, the evidence recorded by the plaintiff/petitioner on the point reveals that he himself has claimed to have performed `Talb-i- Muwathibar at 5-00 p.m. In presence of the witnesses whereas his two witnesses have disclosed the time of performance of `Talb-i-Muwathibae as 4-45 p.m. No doubt, apparently a difference of fifteen minutes appeared in the evidence of the P. Ws. But the factum of performance of `Talbs' in presence of the witnesses in the same sitting/meeting has gone unrebutted. Before appreciating the evidence further, I would like to reproduce the provisions of section 13 of N.-W.F.P. Pre-emption Act, 1987.
"13. Demand of pre-emption.--- (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(a) Talb-i-Muwathibat;
(b) Talb-i-Ishhad; and
(c) Talb-i-Khusumat.
Explanations:
(I) Talb-i-Muwathibat means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of preemption.
' Note.--any words indicative of intention to exercise the right of pre-emption are sufficient.
(II) "Talb-i-Ishhad" means demand by establishing evidence.
(III) "Talb-i-Khusumat" means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a preemptor through any source, he shall make Talb-i-Muwathibat.
(3) [Subject to his ability to do so, where] a pre-emptor has made Talb-i-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-i-Ishhad 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: ' 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-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-iMuwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
' Under the law, pre-emptor is required to perform `Talb-iMuwathibat, the moment he gets the knowledge of the sale and that too before the dispersal of the said meeting wherein he got the knowledge of the sale. While keeping in view this aspect of the case, the factum of performance of `Talbs' can safely be held to have been performed in accordance with law. The difference of exact time of performance of Talb-i-Muwathibat could be the result of human errors because of gap of time between performance of Talb-i-Muwathibat and the recording of statement in the Court. The fact which remains unrebutted is the performance of `Talb-i-Muwathibae just after getting the knowledge of sale in the same meeting/Majlis. The witnesses and the pr-emptor differed on the exact time of performance of Talb-i-Muwathibat but the performance of Talb-i-Muwathibat as per evidence was not delayed. The difference of fifteen minutes appearing in the evidence cannot be treated as a delay in performance of `Talb-i-Muwathibar because the evidence on the point is very much clear that the moment the pre-emptor got the knowledge, he there and then declared his intention to pr-empt without any sort of delay in the same meeting, whether it was at 4-45 p.m. Or 5-00 p.m., would not make it doubtful. So, the findings of the two Courts below on the question of "Talbs" are reversed.
7. As far as the entitlement of the vendee/respondent for the amount of taxes paid by him at the time of attestation of mutation is concerned, he is legally entitled to receive the same in case of decretal of pr-emption suit along with market value so determined by the Court. He also produced receipts of such taxes which went unrebutted but the two Courts below failed to give any findings to this effect as the suit of the petitioner was dismissed. So, without any hesitation, it can safely be held that he would have been entitled to receive the amount of Government taxes paid by him at the time of attestation of mutation in case of decretal of pre-emption suit in favour of petitioner. As the plaintiff/petitioner has no right of pre-emption in the light of findings given above, his suit for pre-emption was rightly dismissed by the two Courts below.
8. So, in the light of above discussion, Civil Revision No,1021 of 2009 is dismissed by upholding the judgment and decrees of the two Courts below on the subject issue. As the suit of the petitioner has been dismissed, so the connected Civil Revision No,1278 of 2009 is disposed of accordingly.