JUDGMENT ATTAULLAH KHAN, J. -- Rashid Khan, plaintiff/petitioner, by way of the present revision petition filed under Section 115, C.P.C, has assailed the concurrent findings of the Courts below dated 27.11.2004 and 10.5.2005 respectively, whereby his suit for pre-emption was dismissed.
2. Briefly stated facts of the case giving rise to this revision petition are that petitioner Rashid Khan and ' Raziq Khan had filed two separate suits Nos. 7/1 and 30/1 respectively against the respondent Misal Khan for enforcement of their superior rights of pre-emption in respect of the land fully detailed in the plaint. Both the said suits were consolidated by the learned Trial Judge and consolidated issues were framed therein.
3. After hearing arguments and scanning the record, the learned Trial Judge dismissed suit of the plaintiff Raziq Khan while that of the rival-pre-emptor Rashid Khan was decreed to the half of the suit land vide judgment and decree mentioned above. Both the parties assailed the findings of the Trial Court in four different appeals and the learned Additional District Judge-V, Bannu, vide judgment and decree dated 10.5.2005 accepted the two appeals of Raziq Khan and Misal Khan against the respondent Rashid Khan while dismissed the other two appeals of Rashid Khan and Raziq Khan against the respondents Misal Khan were dismissed. Hence this revision petition by the petitioner Rashid Khan.
4. Learned counsel for the petitioner argued that the petitioner was represented by a special attorney because of his physical inability to appear before the Court, therefore, the requirements of Section 13 of the N.W.F.P. Pre-emption Act, 1987 have been fulfilled.
5. On. The other hand, learned counsel for the respondents argued that the attorney has no power to record statement in the pre-emption suit on behalf of the plaintiff. He further argued that the attorney while appearing as witness of the plaintiff has stated nothing in his statement about the details of Talb-e-Muwathibat performed by the plaintiff.
6. I have carefully examined the record in the light of arguments of the learned counsel for the parties.
7. The most controversial point in this revision petition is the statement of Azhar Khan RPW-1 who is special attorney of the plaintiff. His power-of-attorney is available on file as Ex.RPW-1/1 and from his statement two legal propositions emerges. The first is whether the special attorney has stated in his statement before the Court about the performance of Talb-e-Muwathibat by the plaintiff and the second is whether the said attorney can appear and prove the performance of Talb-e- Muwathibat on behalf of the plaintiff or not.
8. As far as the first proposition is concerned, reference may be given to the statement of the special attorney Azhar Khan. His statement regarding Talb-e- Muwathibat is that the plaintiff and the two witnesses went to the disputed land and performed Talb-e-Muwathibat. The relevant portion is reproduced below:-- {{Urdu Text}}
9. This witness has failed to disclose the date and time. The said attorney has stepped into the shoes of the plaintiff/pre-emptor, therefore, he was required to have disclosed the time, date and place of performance of Talb-e- Muwathibat but he has failed to do so. Therefore, the demand is legally defective.
10. There is also nothing on the record to show that the plaintiff was in fact physically or mentally unable to appear before the Trial Court as his on witness, In the cross-examination, the special attorney has admitted that the plaintiff is incapable of giving statement and that he is also not prepared to record statement through Commission. The attorney has also failed to produce any medical certificate to prove the inability of the plaintiff to appear before the Court.
11. As far as the second point is concerned, it is to be mentioned that the right of pre-emption is a special right/personal in nature and the Talb-e-Muwathibat could only be performed by the plaintiff/pre-emptor personally, In this connection, I may rely upon a D.B. Judgment of this Court reported as 2005 CLC 325, wherein it has been held as under:- "Without going into the controversy as to whether the son of the plaintiff/petitioner was duly authorized through a special power-of-attorney to appear on behalf of the plaintiff or not, despite the fact that there is no mention of this fact in the statement of the son of the plaintiff nor any power-of-attorney has been exhibited on record through him, but suffice it to say that if the said attorney is treated to have been executed, the same would however be treated as useful to the extent of Talb-e-Khasumat only and not to the extent of raising other Talbs, i.e. Talb- Muwathibat or Talb-e-Ishhad, as Talb-e-Muwathibat is purely an act of personal nature, which could only be described amicably by the party itself and not by the personal holding power-of-attorney on his behalf, hence the attorney of the plaintiff could not at least raise Talb-e-Muwathibat on behalf of the father/plaintiff."
12. I also rely Upon the dictum of the apex Court reported as 2007 SCM R 1344 wherein it has been held as under:- "It was contended before High Court that the petitioner had made Talbs in accordance with law but the two Courts below failed to appreciate the evidence in its true perspective. Learned High Court examined above contention and repelled the same with the observations that the petitioner herself had not made any Talb' and that, if any, it was made by her husband, who had ho implied or direct authority on the date when alleged Talb-e-Muwathibat was made. High Court also noted that the petitioner herself did not appear before Trial Court to substantiate the plea that talb was made by her. High Court also noted that even it was not her case that she made talb personally, when she came to know about attestation of mutation in favour of the respondents. High Court concluded that very basic requirement of Talb-e-Muwathibat was not made in accordance with law."
13. As discussed above and held by this Court in the above-referred case, Talb-e-Muwathibat was required to have been performed by the plaintiff/pre-emptor personally, which was not so performed, therefore, the same is legally defective. The reason for appointing the special attorney by the pre-emptor in this case is also not genuine. No documentary proof or eyen oral evidence has been produced on behalf of the before the Court.
14. Moreover, while appearing as RPW-1, Azhar Khan special attorney has simply stated that the plaintiff alongwith his two witnesses performed Talb-e-Muwathibat on the disputed land. There is no disclosure as to when and on what time Talb-e-Muwathibat was made. As attorney, he was required to have disclosed all the detailed mentioned above in his^statement before the Court.
15. In short, the plaintiff failed to prove Talb-e- Muwathibat in accordance with the relevant provisions of law. The attorney of plaintiff cannot legally prove Talb-e- Muwathibat on behalf of the pre-emptor.
16. The above discussion leads to the conclusion that the plaintiff/petitioner has failed to prove his case through cogent and convincing evidence available on record. The impugned judgment and decree suffer from no illegality or jurisdictional defect.
17. Consequently, I find no merit in this revision petition which is accordingly dismissed leaving the parties to bear their on costs.