' ZIA-UR-REHMAN KHAN, J.---Through this single order we propose to dispose of the instant appeal filed by the vendee-defendant and the connected Appeal No, 202 of 2010 filed by the plaintiff- preemptor, as through both the appeals the judgment and decree of the trial Court dated 11-5- 2010 passed in a suit for possession through preemption, has been impugned.
2. Summarized facts of the case are that appellant-vendee purchased the disputed property, the measurement and description whereof is given in the head note of the plaint on the basis of a registered sale deed dated 28-4-2008 from one Mst. Izzat Bibi against a sum of Rs,1,60,00,000 (One crore sixty lac). This transaction was preempted by plaintiff Yousaf Shah by filing a suit on 2-9- 2008 before the Court of Civil Judge Kohat on the ground that he being possessed of superior rights is entitled to its possession through exercise of his valid right of pre-emption on payment of Rs,45,00,000 (forty five lac) as sale consideration, because the price entered into the registered sale deed was fanciful and exorbitant and being so was neither fixed in good faith nor paid to the vendor. It is further averred in the plaint that he got knowledge about the sale on 30-8-2008 at premises of Kohat Tehsil in the presence of one Mahmood Shah, consequent upon which he there and then declared his intention to pre-empt the suit-land. It is further averred that on the same date notice Talb-e-Ishhad was scribed, attested by two witnesses namely Mahmood Shah and Abdul Miran and was dispatched in the name of the vendee on the following day i.e. 31-7-2008, but the same was not responded.
3. The vendee appellant on legal intimation appeared and opted to contest by filing his written statement wherein he refuted all the assertions so embodied in the plaint. The trial Court after framing necessary issues put the parties on trial. Plaintiff examined as many as 7 P.Ws. Besides recording his own statement, whereas vendee appellant besides recording his evidence through attorney produced 4 more witnesses as D.Ws. On the conclusion of trial the trial Court passed a decree admitting the price mentioned in the registered sale deed as true and correct Market value.
However, the payment of all miscellaneous expenditures incurred by the vendee were refused.
Vendee appellant is aggrieved of the main decree, therefore, filed appeal No,243 of 2010, whereas plaintiff appellant through his Appeal No, 202 of 2010 has challenged the fixation of Rs,1,60,00,000 (one crore sixty lac) as a genuine market value.
4. The learned counsel for the vendee appellant vehemently contended that although the plaintiff in his plaint has disclosed the date, time and place, but has singularly omitted to mention the name of the informer and his introduction later on in the evidence being afterthought is against the principles of pleadings, but this important aspect of the case has totally escaped the notice of the trial Court; that the alleged formality of Talab-e-Muwathibat was performed in presence of his real brother Mahmood Shah as a single witness, but while appearing as P.W.8 the said witness is totally silent in this respect and this fact alone is sufficient for the dismissal of his suit of pre- emption which is indeed a feeble right; that likewise the formality of Talb-e-Ishhad also does not stand proved in the instant case, but the trial Court through its erroneous approach has ignored the same fact; that previously the brother of the plaintiff namely Sikandar Shah had also given notice Talb-e-Ishhad to the vendee regarding the sale in question and it is proved from the record that P.W.8 Mahmood Shah was a signatory to that notice, but this question has also been ignored; that in the event of decree the vendee appellant was entitled to all the expenses having been incurred by him on the registration of the sale-deed, but the impugned judgment in this regard is silent that as the suit Khasra Numbers have lost their status as an agriculture property being covered with Abadi and as the plaintiff/pre-emptor has no contiguity with the diluted property, thus mere existence of his name in the revenue record is of no use to him. He lastly contended that the vendor (Mst. Izzat Bibi) prior to the sale in favour of the vendee had given proper advertisements in different Newspapers and the plaintiff/pre-emptor despite knowledge and close relationship with her did not express his desire to purchase the suit property.
5. On the contrary learned counsel for the plaintiff/decree-holder in support of his appeal contended that the trial Court has rightly granted a decree, but the sale consideration fixed therein is not the actual and genuine one, which is liable to be reduced to the one claimed by the plaintiff in his plaint.
6. We have heard the respective contentions of the learned counsel for the parties and perused the record with their valuable assistance.
7. At the very outset we would like to pick up for discussion as to whether in view of the attending circumstances of the case and material available on the record the plaintiff/pre-emptor has succeeded in the observance of the two legal formalities namely Talb-e-Muwathibat and Talb-e- Ishhad, which are serving as a foundation for the exercise of a valid right of pre-emption. In this regard a cursory glance on the averments of the plaint particularly para No,2 makes it clear that the plaintiff/pre-emptor has disclosed the date, time, place and presence of another witness, but has failed to disclose the name of the informer. The moot question crops up for consideration and resolution before this Court is as to whether due to the omission of the name of the informer the plaintiff-pre-emptor could emerge successful by subsequently introducing the said witness as an informer as well and whether in view of the silence of P.W.8 in this regard, the first formality of Talb- e-Muwathibat, which is serving as a foundation in a pre-emption suit has stood observed? Answer to both the questions is in negative. The reason is that by now it is settled that apart from other details the name of the informer has to be specifically mentioned in the plaint. This legal formality has not been observed in the instant case, because neither the name of informer is mentioned in the notice Talb-e-Ishhad nor in the plaint. Reliance in this regard can well be placed upon three judgments delivered by this Court reported as 2003 M LD 870, 2006 CLC 604, 2009 CLC 880 and the most recent Judgment delivered by the august apex Court reported as 2010 SCM R 1796. In the said judgments giving the name of informer in the plaint and notice Talb-e-Ishhad has been described essential, more particularly when the said informer is the sole witness of Talb-e-Muwathibat.
9.(sic.) All these details are not only required to be mentioned in the notice and plaint, but should be meticulously proved through tangible and concrete evidence for acquiring and snatching the pre-empted property from the vendee. In the case in hand the plaintiff/pre-emptor has miserably failed to fulfil the requirements of law in accordance with the prescribed provisions of the pre- emption Act. In this regard the deposition of the solitary witness of Talb-e-Muwathibat namely Mahmood Shah P.W.8 is worth perusal, whose court statement only comprises six lines in which he has simply referred to the factum of notice Talb-e-Ishhad, but has not uttered a single word about the alleged observance of Talb-e-Muwathibat by the plaintiff/pre-emptor. The silence of the said witness is proving detrimental to the cause of the plaintiff/pre-emptor and the only meaning, which can be derived from the said deficient evidence, is that the plaintiff has failed to prove the first formality of Talb-e-Muwathibat, which is sine qua non in a suit for pre-emption. Reliance in this regard can well be placed upon the Judgments of the apex Court reported as 2009 SCM R 488 titled "Khadim Hussain v. Ghulam Isa", 2008 SCM R 934 titled Muhammad Anwar v. Muhammad Sultan, 2007 SCM R 962 titled Ahmad Hassan v. Muhammad Aslam and PLD 2003 SC 315 titled "Haji Muhammad Salim v. Khuda Bakhsh". In all these dicta much emphasis is laid upon the proof of all the requisite details in a transparent and meticulous manner. If the factum of Talb-e-Muwathibat allegedly observed by the plaintiff/preemptor is further gauged on the yardstick of the observations and laid down principles enunciated in the supra judgments of the august apex court it further becomes more than crystal clear that the said stance has remained uncorroborated.
Needless to mention that right of pre-emption is a feeble right and even a single legal infirmity is sufficient to non-suit the plaintiff. Reference in this regard can well be given to a Judgment of the apex Court reported as 2009 SCM R 678, wherein the said proportion has been met in the following words:-- "---Pre-emption being a feeble right, formalities required for its exercise and enforcement must be strictly observed and there must be a clear proof of same on record.
10. As regards the second formality i.e. Notice Talb-e-Ishhad, suffice it to say that the same becomes inconsequential even if its observance is believed to have been proved.
11. Another unignorable aspect of the case is that although the plaintiff/pre-emptor in order to fill up the said legal lacuna has tried to introduce the said witness also as an informer, but this piece of evidence does not impart any strength to his version. Because under the principles E of the pleadings he could not substantiate and prove any fact beyond the scope of his plaint and even if some evidence in this regard has been brought by him on the record, the same shall be ignored and discarded. Reliance in this regard can well be placed upon a Judgment of the apex court reported as PLD 2004 SC 1682. Titled "Muhammad Iqbal v. Ali Sher".
12. Another glaring mistake committed by the trial Court is that P.W.8 in his statement in categorical terms has admitted that he is a signatory to the notice dated 10-7-2008, previously given by Sikandar Shah, other brother of the plaintiff/pre-emptor to the vendee/appellant and if at 'that time the said witness of Talb-e-Muwathibat had acquired knowledge about the sale in question, how he can be believed to have informed the plaintiff/pre-emptor later on 30-7-2008. The subjective examination and scrutiny of all these facts suggest that the trial Court while recording its judgment on the relevant issue No,6 has badly failed to advert to this material portion of the case, which was proving insurmountable and fatal to the interest of the plaintiff/pre-emptor and in the presence whereof he could never be held entitled to the grant of decree.
13. The cumulative effect of the above discussion is that since the vendee has succeeded to make out a case of indulgence of this Court as First Court of Appeal, thus the impugned decree is not liable to be sustained.
14. In this view of the matter, insofar as the other contentions of both the learned counsel for the parties are concerned, the same in pursuance of the above observations have become of trivial importance, rather stand redundant and need not be dilated upon.
' Accordingly R.F.A. No, 243 of 2010 of the vendee/appellant is accepted, the impugned judgment and decree of the trial Court is set aside and the suit of the plaintiff/pre-emptor is dismissed.
Likewise his appeal R.F.A. No,202 of 2010 is also dismissed. Parties are left to bear their own costs.