' SHER MUHAMMAD KHAN, J.--- Through this revision petition, petitioner has impugned the judgment/decree dated 14-12-2004 passed by learned Additional District Judge-I, Lakki Marwat in Civil Appeal No,67/13 of 2004 vide which by accepting the appeal of respondent/plaintiff, judgment/decree passed by learned Civil Judge-I, Lakki Marwat dated 24-7-2004 Civil Suit No,29/1 of 2003 has been set aside and suit of respondent/plaintiff filed for possession through preemption was decreed.
2. Brief facts of the litigation between the parties are that petitioner purchased a piece of land situated in Mauza Khairu Khel Pacca Tehsil and District. Lakki Marwat to the extent of 25 Kanals, 3 Marlas out of 91 Kanals 18 Marlas in Khasras Nos.37 and 38 entered in Khata Nos.292/881 vide registered sale-deed No,54 attested on 30-6-2003, purportedly on payment of ostensible consideration Rs,2,00,000.
3. Respondent/plaintiff instituted suit for possession through pre-eruption in the learned trial Court claiming therein that the actual price paid to, vendor is Rs,5030 and the petitioner has entered exorbitant amount in the registered sale-deed to deprive him from exercising his right of pre- emption.
4. Petitioner contested the suit and filed, written statement, raised so many legal and factual objections on the maintainability of suit. The learned trial Court reduced the ,conflicting pleadings of the parties to as many as seven issues. Pro and contra evidence was recorded and after hearing the arguments from both sides the suit was dismissed vide judgment/decree dated 24-7--2004 with cost of Rs,500.
5. Respondent/plaintiff impugned the judgment/decree of the trial Court before the learned District Judge, Lakki Marwat, who was pleased to entrust the same to learned Additional District Judge-I, Lakki Marwat for onward proceedings and decision in accordance with law, who after hearing arguments of both the sides accepted appeal of respondent vide judgment/decree dated 14-12- 2004, set aside the judgment/decree of the trial Court and decreed the suit land in favour of respondent on payment of Rs,66,512.80, hence the instant revision petition.
6. The learned trial Court had decided Issues Nos.1 and 3 against respondent and Issues Nos.2 and 5 in favour of respondent, market value of the suit land was determined Rs,1,00,000 by deciding Issues Nos.4 and 6. The learned appellate Court reversed the findings of the trial Court on Issues Nos.1 and 3, which relate to performance of Talb-eMuwathibat and set aside the judgment/decree of the trial Court.
7. Learned counsel for the petitioner argued that in plaint Khasra No,78 was mentioned instead of Khasra. No, 38 which was later on corrected with permission of the Court .Vide order dated 20-7- 2004. According to his contention the claim of respondent on Khasra No,38 was beyond the period of limitation, therefore, the suit of respondent being of partial pre-emption was, therefore, liable to be dismissed on this ground alone. He further argued that respondent has failed to prove Talb-e- Muwathibat in his evidence, as assertion in the plaint is inconsistent with the, statement of P.W.5 Aslam Khan recorded in the trial Court. Therefore, on this ground too the judgment/decree of the learned trial Court should not have been disturbed by the appellate Court.
8. On the other hand, learned counsel appearing on behalf of respondent argued that mentioning wrong Khasra number in the heading of the plaint was due to misleading incorrect entry in the Tehsil register Exh.P.W.1/1, which was corrected at appropriate time when it came into knowledge of the respondent, after recording statement of Patwari Halqa in the trial Court on 25-5-2004. He further argued that it was just a clerical mistake and by no stretch of imagination would be brought under the definition of partial pre-emption which fact is evident from rest of the description of the disputed property with reference to Khata number, area and registered sale deed number. Moreover, petitioner has accepted the correction of the said mistake through order of the Court by his conduct as he did not challenge the order of the trial Court, in the upper hierarchy through appeal or revision rather he has accepted the same by accepting Rs,100 as cost from respondent. Regarding discrepancy in the statement of the respondent in respect of the date of performance of Talb-e-Muwathibat learned counsel of the respondent argued that it is minor contradiction which should not be given importance for non-suiting the respondent because in examination-in-chief the time, date and place of performance of Talb-e-Muwathibat, h'as been mentioned specifically.
9. From perusal of the original record it is evident that the suit was filed on 18-10-2003, the respondent had annexed copy of the registered sale-deed with the plaint on the day of presentation. The clerical mistake with regard to wrong Khasra number in the plaint is due to wrong entry of the said Khasra number in the copy of the registered sale deed. Respondent has clearly mentioned all other details of the disputed land accurately in unambiguous terms, clearly describing the disputed property. Therefore, the suit of respondent could not be treated as a suit of partial pre-emption.
10. To assess the correctness of the judgment/decree of the learned courts below it is necessary to refer to the relevant Paragraphs of the plaint and evidence produced thereon.
11. In Para No,3 of the plaint respondent has alleged that on 27-9-2003 it was Saturday at 06-00 a.m, when he was informed by his brother Aslam Khan regarding the sale transaction in presence of Fateh Khan son of Haibat Khan resident of Pahar Khel Pacca Tehsil and District Lakki Marwat and then and in the same sitting he performed Talb-e-Muwathibat without wasting a single moment.
After that on 29-9-2003 written notice for performing Talb-e-Ishahad was sent to petitioner which was drafted on 28-9-2003.
12. To substantiate the above stated contention petitioner appeared himself as P.W.4 and examined his brother Aslam Khan as P.W.5 and Fateh Khan as P.W.6 Petitioner has supported the contents of his plaint through his statement and nothing adverse has been brought from him, in his cross examination by the other side but his brother Aslam Khan during cross-examination stated that he himself received information about execution of registered sale-deed, day before the drafting of notice of Talb-e-Ishahad then on that day he went to Tehsil, to meet Patwari Halqa. He reached his house on that day at Isha prayers time and on the following day he went to the house of respondent at 06.00 a.m. And informed him about the execution of registered deed.
13. When the above mentioned statement is kept in juxtaposition with the plaint and notice of Talb- e-Ishahad, it is evident that Talb-eMuwathibat has not been performed on 27-9-2003, as alleged by respondent. According to the plaint notice of Talb-e-Ishahad was drafted on 28-9-2003 which was sent on 29-9-2003 to petitioner. P.W. Aslam Khan himself received information about the registered sale-deed, day before the scribing notice and then went to Tehsil and came that night to his house. Day before scribing the notice falls on 27-9-2003 which means that Talb-e- Muwathibat was not performed on 27-9-2003 as alleged in the plaint and notice Talb-e-Ishahad because on 27-9-2003 P.W.5 Aslam Khan himself received information which was conveyed to respondent on the following day.
14. The law on the subject is very clearly established by the Apex Court in so many judgments. In the case of Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315, it has been ruled that the question of Talb-eMuwathibat is not mere technicality viz-a-viz the superior right of preemption. The law as well as the fact is that the very right of pre-emption is not activated unless Talb-e-Muwathihat is performed. It should not be dubbed as a mere technicality at times; it requires such dimension that it becomes more important than the superior right because it essentially is sine qua non of the right of pre-emption. The latter might exists but is useless unless the former is performed.
15. Mentioning of the performance of Talb-e-Muwathibat, with reference to time, date and place in the plaint and in notice of Talb-eIshahad is the requirement of law and it is also mandatory to be proved during trial like any other fact in the same pattern and style as mentioned in the plaint and notice.
16. In the instant case the respondent has alleged performance of Talb-e-Muwathibat on 27-9- 2003 after receiving information about the sale transaction from P.W.5 Aslam Khan, who negated the averments of the plaint by stating that he informed respondent on the day when notice of Talb-e-Ishahad was drafted(?). In the case of Muhammad Hussain versus Manzur Hussain 2004 SCM R 737 it has been held by the Apex Court that it is requirement of law that the evidence in this regard should be unimpeachable and confidence inspiring.
17. As the respondent has failed to prove the performance of Talb-eMuwathibat in accordance with law, therefore, the learned trial Court had rightly dismissed' the suit of respondent. The learned appellate Court while reversing the findings of the trial Court did not appreciate H the evidence of P.W.5 in its true prospective and wrongly decreed the suit of respondent.
18. Resultantly, I accept the instant revision petition, set aside the judgment/decree passed by learned appellate Court vide judgment/decree dated 14-12-2004, uphold the judgment/decree of the learned trial Court I passed on 14-7-2004 and dismiss the suit of respondent/plaintiff with no order as to costs.