JUDGMENT ZIA-UR-RAHMAN KHAN, J. Impugned herein is the judgment of the learned appellate court dated 11-3-2009 whereby while dismissing the appeal of the petitioner the judgment and decree dated 28-9-2007 decreeing the suit of the respondent for possession through preemption qua the suit land against the petitioner has been upheld.
2. Brief facts of the case in short are that land measuring 9 kanals 16 marlas comprising different khasra numbers situated in Mauza Garori Charkhel, Tehsil and District Karak duly described in the head note of the plaint was purchased by the petitioner on the basis of a sale-deed dated 28-5- 2003. The said transaction was pre-empted by the respondent by filing a suit for possession on 18- 9-2003 before the court of Civil Judge, Karak alleging herein that he got the knowledge about the sale transaction through his son Wilayat Khan at his home on 10-9-2007. It is further averred in the said plaint that soon after getting the knowledge he announced his intention to pre-empt the sale transaction in presence of the said informer and thereafter it was on 13-9-2003 when the notice of Talb-e-Ishhad was scribed, duly attested by truthful witnesses, was dispatched in the name of the petitioner who did not receive the same and was sent back in original. The petitioners on being summoned, opted to contest the suit of the respondent by filing written statement wherein he raised many legal and factual objections including the non-observance of the formalities of both the Talbs. The learned trial Court after framing of necessary issues put the parties on trial and on the conclusion of the same passed a decree against the petitioner on payment of Rs.75632 as sale consideration in the light of the one year average prepared and worked out by the Patwari Halqa.
The appeal of the petitioner before the learned appellate court failed, thus, the instant petition.
3. The learned counsel for the petitioner vehemently contended that although the respondent in the notice Talbe-Ishhad and in his plaint has disclosed the place, date, time and the name of the informer for observing the first formality of Talb-e-Muwathibat but subsequently during the course of trial neither he in his on testimony in clear terms nor his sole witness of the factum of Talb-e- Muwathibat has referred to such details and in this way the basic formality which is serving as a foundation for the exercise of right of preemption is missing and stands unproved. He next contended that the sale amount entered in the sale-deed is the genuine price of the disputed property and was paid to the vendor in a bona fide manner and the decree so granted in favour of the respondent on payment of a meagre amount to the tune of Rs.75632 on the basis of one year average is misconceived and unwarranted. He in this respect further contended that the findings of the two courts below are the result of misreading, non-reading of evidence and they have misdirected themselves- by not resorting to the provisions of the law of preemption.
4. On the contrary, the learned counsel for the respondents while repelling arguments of the learned counsel for the petitioner contended that the concurrent findings recorded by the two Courts below are based upon proper appreciation of the material available on the record and in the absence of any material illegality or jurisdictional defect, the same are not vulnerable to any exception.
5. Arguments heard and record perused.
6. At the very outset, I would like to observe that there is no dispute between the parties with regard to the superior right of preemption being possessed by the respondent, limitation, estoppels etc. The main thrust of the arguments of the learned counsel for the petitioner circles around two grounds; firstly, that the respondents have failed to observe the. Formalities of Talb-e-Muwathibat in accordance with the settled principles of law and secondly; that the price entered in the sale- deed is the actual price and was fixed in good faith and duly paid to the vendor.
7. I would like to take up for discussion the first ground pertaining to the observance of legal formalities of Talb-eMuwathibat which is serving as a foundation for the exercise of valid right of pre-emption. It is manifest from the notice Talb-e-Ishhad dated 13-9-2003 Ex. P. W 2/1 and the plaint that as soon as on 10-9-2003 when the respondent got knowledge at his home through his son Wilayat Khan, he allegedly there and then declared his intention to pre-empt the said sale in favour of the petitioner. First of all, it has to be seen in the light of the evidence produced by the respondents as to whether the first formality of Talb-e-Muwathibat has been observed in accordance with the requirement of section 13 of the erstwhile N.-W.F.P. Act, 1987. It would not be out of place to mention that the informer is the son of the respondent and he is stated to be the sole witness of Talb-e-Muwathibat. It is to be seen as to whether the testimonies of the respondent and his son Wilayat Khan are in consonance and in conformity with the recitals of the notice Talb- e-Ishhad and that of the plaint. Although the respondent in his court statement while appearing as P.W.2 has stated that on 10-9-2003 at about 4 p.m, his son informed him about the sale and in his presence he observed the first formality but astonishingly in this regard the deposition of his son Wilayat Khan as P.W.4 is totally silent. If he was the sole witness of the factum of Talb-e B Muwathibat, he ought to have supported the stance of the respondent (his father) is to the effect that it was he who conveyed the information to him and in his presence the respondent observed the necessary formality. Bare perusal of his statement shows that in his presence only the notice Talb-e-Ishhad was scribed and signed by him and other witnesses. He does not utter a single word about the observance of Talb-e-Muwathibat by the respondent.
8. The respondent has tried to exercise his right of preemption for acquiring the suit land on the basis of the above mentioned evidence in order to prove the factum of Talb-e-Muwathibat and Talb-e-Ishhad. The moot question which crops up for consideration at this juncture is as to whether the above testimonies are sufficient for conferring valid right of preemption upon the respondent preemptor? The answer is definitely in negative. The valid reason is that not only the preemptor is required to give the requisite details in the notice Talb-e-Ishhad and in his plaint but he is also required to substantiate the said details through his evidence. In the instant case, the respondent-preemptor has disclosed these details in his notice Talb-e-Ishhad and the plaint but has failed to prove the said facts through any corroborative evidence. In the absence of these details in the evidence, mere mention. Of the same in the notice Talb-e-Ishhad and plaint are highly insufficient in view of the given circumstances of the case. Reliance in this regard can validly be placed upon a judgment of the apex court reported as 2007 SCM R 962. In the said authority although the date of Talb-e-Muwathibat was given in the plaint but during the course of trial, none of the witnesses deposed about the same in the evidence, resultantly, the suit of the pre-emptor was dismissed. Likewise, in two other recent judgments of the august Supreme Court of Pakistan reported as 2009 SCM R 488 and 2008 SCM R 934, the apex court has held that the presence of the said particulars in the plaint and evidence is must. Since in the instant case, these details are totally missing in the evidence, therefore, the first formality of Talab-e-Muwathibat stands unfulfilled and the suit of the respondent pre-emptor could not be legally decreed. This material aspect of the case has totally escaped the notice of both the courts below ,while recording the concurrent findings and they have totally travelled on different premises in this regard. The oblivion on the part of the courts below shows that they have totally misdirected themselves holding that respondent through his tangible evidence has proved the factum of Talb-eMuwathibat. In other words, the courts below have totally failed to properly scan the entire material led by both the parties in support of their respective claims. The approach of the courts below is totally unwarranted and misconceived. Needless to observe that in the absence of nonobservance of the first Talb, the factum and performance of Talb-e-Ishhad is inconsequential. Moreover, by now it is settled that right of pre-emption is feeble and piratical right for the proof whereof evidence of predominant nature is required to be led by the pre-emptor. The contention of the learned counsel for the respondents that there are concurrent findings in favour of his client and the same are not vulnerable to any exception in any circumstances, is not tenable in view of the fact that once the High Court in the exercise of its Court of supervisory jurisdiction under section 115, C.P.C. Arrives at the conclusion that the findings so recorded by the courts below are the result of misreading, non- reading and misapplication of the relevant law, the same do not stand in its way while declaring them illegal and unlawful. In other words in all circumstances the concurrent findings despite presence of mistakes of glaring and palpable nature are considered impenetrable and sacrosanct, in that event the provisions of section 115, C.P.C. Would become C redundant and meaningless. As the findings of the two courts below on the sole ground of non-performance of the factum of Talbe-Muwathibat are not sustainable, ,therefore, the other pleas of the learned counsel for the petitioner including that of the wrong fixation of the sale consideration have become of a trivial importance and need not be dilated upon. In this view of the matter, this court is left with no alternative but to accept the instant revision petition. Consequently, the impugned judgments and decrees recorded by the forums below being perverse in nature and based on surmises and conjectures are hereby set aside and the suit of the respondent-preemptor is accordingly dismissed leaving the parties to bear their on costs.