JUDGMENT ZIA-UR-REHMAN KHAN, J.--With the help of the instant petition the petitioner being defendant vendee of the disputed house has called in question the judgment and decree dated 8- 1-2010 recorded by the learned Addl. District Judge/Izafi Zilla Qazi Malakand at Batkhela, whereby while accepting the appeal of the respondent the judgment and decree dated 18-11-2008 rendered by the learned trial Court dismissing the suit of the respondent for possession through preemption with regard to the suit house has been set aside and the said suit has been decreed.
2. Short background of the instant petition is that the respondent being plaintiff instituted a suit for possession through pre-emption against Jehanzeb husband of the present petitioner and the vendor Muhammad Amin Khan before the Court of Senior Civil Judge Aala Illaqa Qazi Malakand at Batkhela on 18-7-2003.
The averments of the plaint are that he on 29-6-2005 on Wednesday at 7-00 P.M. At the house of Fawad Sattar acquired knowledge about the sale through Fawad Sattar in presence of Sarwar Ahmad and soon thereupon he being possessed of all the available superior rights of pre-emption declared his intention to pre-empt the said transaction. In this way according to him he observed the first formality of Talb-eMuwathibat and thereafter he sent a Jirga comprising Fawad Sattar, Muhammad Zahid and Nazir Ahmad Khan etc. To Jehanzeb, but he refused to admit superior right of the plaintiff. On 5-7-2005 notice Talb-e-Ishhad was scribed and after attestation by two witnesses was sent to the said vendee, which was not replied. The amount as sale consideration entered in the plaint was Rs.1,50,000. It is pertinent to mention that the vendor was the real brother of the 'pre-emptor. On legal intimation Jehanzeb appeared in the Court and instead of filing a written statement, he submitted an application on 28-9-2005 before the Court to the effect that the sale-deed dated 28-4-2005 was in fact in favour of his were, the present petitioner and the suit was wrongly instituted in his name. As per record the pre-emptor being employee of PIA had appointed Fawad Sattar as his special attorney, hence when he got knowledge about the said fact on 28-9-2005 he on behalf of the respondent observed the formality of Talb-e-Muwathibat in view of the changed scenario and when the preemptor on 3-10-2005 came to his village and at 5-00 P.M. He was informed by Fawad Sattar about the sale in favour of the petitioner, he again declared his intention to pre-empt the sale. Thereafter i.e. On 4-10-2005 a second notice of Talb-e-Ishhad duly attested by witnesses was dispatched in the name of the petitioner. Likewise to this effect application for amendment was made, which was allowed on 17-3-2006. Accordingly the pre- emptor filed an amended plaint terming the petitioner as a vendee of the suit property by giving the requisite details therein. The respondent besides recording his statement as P.W.I, recorded the statements of Sarwar Ahmad P.W.2, Aftab Alam P.W.3, Fawad Sattar P.W.4, Iftikhar Arif P.W.5 and Hoshmand Postman as P.W.6. In rebuttal petitioner also examined six witnesses and the learned trial Court on the conclusion of trial dismissed the suit. However, the appeal filed by the respondent vide the impugned judgment was accepted and the suit was decreed on payment of Rs.13,25,000 as market price of the suit land, thus, the instant petition.
3. Learned counsel for the petitioner mainly contended that as the respondent pre-emptor was in the know that the sale was in favour of the petitioner, but he neither observed the formality of Talb- eMuwathibat against the petitioner nor any notice to her was given, thus, his subsequent claim towards the enforcement of his right of pre-emption was not at all entertainable and has wrongly been decreed by the learned Appellate Court; that as respondent in his subsequent notice in the name of the petitioner has described the date of Talb-e-Muwathibat as 29-5-2005, whereas the said notice was given on 4-10-2005, thus, it was beyond the prescribed period contained in the Preemption Act, but this legal lacuna, which, is fatal in nature has also lost sight of the learned Appellate Court; that the observance of Talb-e-Muwathibat about the sale in favour of the petitioner by the attorney of the respondent was not proper because the said attorney as per recitals of the attorney deed was not having such power. He lastly contended that the respondent decree holder has failed to observe the requisite formalities of "Talb" by producing cogent and reliable evidence, thus, the impugned judgment is not sustainable and his suit is liable to be dismissed.
4. On the contrary the learned counsel for the respondent while defending the impugned judgment and refuting the contentions of the learned counsel for the petitioner argued that right of pre- emption under section 13 of the Pre-emption Act is exercised against the sale and as neither there was a registered sale-deed nor a mutation, rather the sale-deed was unregistered and not available at that time, therefore, even if the said sale was in favour of the petitioner and not in favour of her husband, yet the change of vendee's name did not make any difference more particularly when the formalities of both the Talb at the first instance were proved in a meticulous way. He further argued that even if proof of the requisite details subsequently suffers from certain minor discrepancies, the same are of no avail to the petitioner, because the subsequent exercise was not the requirement of law and was rather a futile one for which there was no room in law. He further contended that if on 28-9-2005 the respondent was telephonically informed about the sale in favour of the petitioner and if at that time he did not observe the formalities of Talbe- Muwathibat and was rather observed on 3-10-2005, the same was not fatal because for observing such like formality the existence of Majlis is essential.
5. Arguments heard and record perused.
6. At the very outset this Court would like to refer to certain admitted facts which are not controverted at this stage between the parties and the same are as follows:--
(a) In the said area there is no revenue record and the property is purchased and sold by description.
(b) Superior right of pre-emption in favour of the respondent decree holder is proved being brother of the vendor.
(c) The sale amount fixed by the Appellate Court as market value of the suit house has been determined as Rs.13,25,000, which the respondent decree holder has deposited.
(d) Both the notices of Talb-e-Ishhad have remained un-replied.
(e) The sale was effected through un-registered deed, dated 28-4-2005.
(0 The provisions contained in sections 12 and 32 of the Preemption. Act, whereunder notices have to be given, have not been complied with.
(g) That the suit of the respondent-preemptor was well within time.
7. In view of the above admitted facts, the controversy between the parties has narrowed down only to the observance of the requirement of Talbs regarding which both the courts below are at variance. This court would like to resolve the contentious dispute in the light of the material available on the record and the relevant law on the subject.
8. As discussed above, the previous suit was instituted against Jehanzeb, the averments whereof were to the effect that when on 29-6-2005 the pre-emptor gained knowledge about the sale through Fawad Sattar, he there and then observed the formalities of Talb-e-Muwathibat.
Thereafter notice Talb-e-Ishhad was given to Jehanzeb because the pre-emptor had not yet obtained the copy of the sale deed and he was under the impression that the sale was in favour of the husband of the present petitioner. As the said notice of Talb-e-Ishhad was not replied, therefore, the preemptor could not gain knowledge about the actual vendee nor in this regard he was verbally told. Rather it was on 28-9-2005 when Jehanzeb submitted an application before the court whereby he disclosed his were i.e. The present petitioner as a vendee. The question that crops up for consideration before this court is that while considering Jehanzeb as a vendee, if the preemptor had complied with the requirements of both the Talbs, whether on 28-9-2005 still he was required to have undertaken the said exercise afresh. In this respect, in order to arrive at a correct conclusion, this court has to refer to the provision of section 13 of the Pre-emption Act and also to the principles of Muhammadan Law as right of preemption finds its roots in the Islamic Law as well. A bare reading of section 13 makes it vividly clear that such right is exercised in respect of a sale about which on gaining knowledge the pre-emptor has to declare his intention to exercise the right of preemption. Likewise, the relevant section of Muhammadan Law also shows that the right of "Shufa" or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person. What can be inferred from the aforesaid provisions of law coupled with the facts of the case is that due to the non-availability of the copy of the un-registered sale deed and other source of information if the respondent pre-emptor has succeeded in observing the requisite formalities of Talb in a meticulous way, then with mere change of name of the vendee he was not supposed to go through the said exercise afresh and he could not be non-suited if in the proof of the said formalities once again his evidence was proved defective. The obvious reason was that Jehanzeb, the husband of the present petitioner had collusively suppressed the sale deed from the respondent/pre-emptor by not letting him know as to who was the original vendee. The said fact was brought after the period of limitation had run against the respondent-pre-emptor.
9. This court would only dilate upon the fact as to whether the respondent preemptor has observed the requirements of both the 'Talbs' in accordance with the relevant law 'in a meticulous way. In this respect, he besides recording his on statement has produced other witnesses who through their predominant evidence have categorically proved the factum of Talbs and despite subjecting them to lengthy cross-examination, their testimonies could not be shattered. The observation of the learned appellate court that for observing the formality of Talb-e-Muwathibat the existence of Majlis' is necessary, also stands to reason. Likewise, his observation that this right can be exercised by an attorney or agent, is also correct in nature and is not offensive of any provision of law but as in the first instance the respondent/ pre-emptor had himself observed the formalities of Talbs therefore, in view of the said observations of the court, the observance of such formality subsequently was not the requirement of law. Learned counsel for the petitioner has failed to point out any material flaw in the evidence of the respondent decree-holden Thus, mere fact that the respondent pre-emptor delayed the observance of Talb-eMuwathibat against the petitioner, after he was informed telephonically by his attorney is of trivial importance. The approach of the learned trial court in this regard seems to be mis-conceived whereas on the contrary the approach of the learned appellate court is correct. Moreover, it has been rightly observed by the learned appellate court that the plea of waiver or estoppel was not available against the respondent pre-emptor.
10. The short and long of the above discussion is that since the learned appellate court while taking correct view of the B matter has rightly set aside the judgment of the learned trial court and as the said judgment is not suffering from any irregularity or illegality, mis-reading or non-reading of evidence and as the petitioner has not been able to make out a case of indulgence of this court in the exercise of its limited jurisdiction under section 115, C.P.C., therefore, this court does not feel persuaded to interfere with the judgment of the learned appellate court. Resultantly, petition in hand being devoid of merits and substance, is hereby dismissed. Parties are left to bear their on costs.