SYED SAJJAD HASSAN SHAH, .---Through the instant revision petition, the petitioner Haji Bhai Khan has assailed the validity of Judgment and decree dated 22-2-2006 passed by learned District Judge, Lakki Marwat, whereby the appeal filed by the petitioner against the judgment and decree dated 30-5-2005 of learned Civil Judge-V, Lakki Marwat was dismissed.
2. Briefly stated facts of the case are that the petitioner purchased sixty kanal of land from one Nawaz Khan through mutation No.369 attested on 29-9-2000. Saifullah respondent-plaintiff filed a suit for preemption, alleging that the suit property was purchased for a sum of Rs.1,50,000/- but to defeat the right of pre-emption, a sum of Rs.4,00,000/- was entered in the said sale mutation. He further averred that Mir Ahmad Khan, on 17-10-2000 at 4 P.M. Informed the respondent-plaintiff in his Baithak situated at Lakki Michankhel in presence of Abdullah Khan, his father. On acquiring knowledge of sale, he immediately declared his intention to pre-empt the sale transaction in presence of above named person, as such, he performed Talb-eMuwathibat. Thereafter on 18-10- 2000, notice Talb-e-Ishhad was sent through registered cover A/D which was not received by the petitioner-defendant and the same was returned back. He further averred that he has superior right of pre-emption as against the petitioner-defendant.
3. The petitioner-defendant contested the suit by filing his written statement. The learned trial Court framed issues arising out of divergent pleas of the parties raised in their pleadings. Both the parties produced their respective evidence. After hearing the arguments, the learned trial Court, vide judgment and decree, declared the respondent- plaintiff as entitled for possession of 30 kanal of land (half of the suit property) subject to payment of Rs.2,00,000/-.
4. Feeling aggrieved from the judgment of the learned trial Court, the petitioner-defendant filed appeal which was dismissed. Hence,, the instant revision petition by the petitioner-defendant.
5. The learned counsel for the petitioner-defendant confined his arguments to the following points- --
(i) that the respondent-plaintiff is owner to the extent of seven marla of land, therefore, he is not entitled for the decree of preemption suit, as he would not be considered as Shafi-e-Sharik. In this respect,, the learned counsel placed reliance on 2006 YLR 1203.
(ii) that the respondent-plaintiff was aware of the sale transaction prior to the performance of Talb-e-Muwathibat, iii) that in Talb-e-Ishhad, there is no reference of the mutation,
(iv) that the petitioner-defendant spent an amount of Rs.10,100/- as expenses of attestation of mutation and he is entitled to recover the same and, v) that the respondent-plaintiff is not in possession of any part of the property.
6. As against that, the learned counsel for the respondent-plaintiff contended that the respondent- plaintiff is owner to the extent of 8-1/2 'marla of land in the suit property which is more than the ownership of the petitioner-defendant. He further contended that both the parties being co- sharers are enjoying the equal rights.In the suit property. He further contended that as per definition given in explanation (1) of. Section 6 of the N.-W.F.P. Pre-emption Act, 1987, shafi-e-sharik means a person who is co-owner in the corpus of undivided immovable property sold to any person or persons, therefore, .The respondent- plaintiff being co-owner in the suit property is having right of pre-emption under the law. Furthermore, the petitioner- defendant has not agitated the grounds which he has urged today during the course of arguments, thus, the point which has not been agitated in the pleadings in the Courts below cannot be raised for the first time in the revisional jurisdiction of the High Court. He further argued that the petitioner-defendant has not filed detail of ownership on the record in order to ascertain his share in the suit property.
7. I have considered the arguments of learned counsel for the parties and carefully perused the record.
8. Shafi-e-Sharik as envisaged in Explanation-I of section 6 of the N.-W.F.P. Pre-emption Act, 1987 is a co-owner in the corpus of undivided immovable property sold to other person or persons; The word used in this section of law is co-owner in corpus. Corpus has been defined in Thesaurus English (U.S) Dictionary as quantity, body, mass. Likewise, according to Blacks Law Dictionary, co- owner means a person who is in concurrent ownership, possession, and enjoyment of property with one or more others; a tenant in common, a joint tenant, or a tenant by the entirety. In view of the above, the respondent-plaintiff is prima-facie owner of the suit property and having all the rights of ownership which can be enjoyed by him and fulfils the condition laid down in section 6 of the N.- W.F.P. Pre-emption Act, 1987. The judgment relied upon by learned counsel for the petitioner- defendant being on different facts and circumstances, is not applicable to the facts of the instant case. Section 20 of the N.-W.F.P. Pre-emption Act, 1987 which is dealing with the instant situation does not specify any such criteria or the circumstances for deciding a pre-emption suit. Section 20 of the Act ibid is reproduced below for ready reference:-- "Where the pre-emptor and vendee equally entitled.--Where the pre-emptor and the vendee fall within the same class of preemptors and have equal right of pre-emption, the property shall be shared by them equally."
The language of the above provision is manifestly clear and does not admit any other interpretation. The provision of the law would be implemented in the letter and spirit and always given the same meanings as emanating from its plain language.
9. The notice Talb-e-Ishhad is available on file as Exh.P.W.2/2 in which it is categorically stated that when the respondent-plaintiff acquired the knowledge of sale transaction of the property alienated through mutation No.369 attested on 29-9-2000 which was purchased by Bhai Khan petitioner-defendant, as such he announced his intention to pre-empt the suit land. In his plaint, number of the mutation and date of attestation is the same which is mentioned in the notice Talb- e-Ishhad and the detail of the suit property has also been given. In the eye of law, this is sufficient compliance of the requirements of Talbs and there remains no ambiguity. Moreover, the petitioner- defendant has not denied in unequivocal terms that the notice Talb-e-Ishhad has not been received. Moreso, he did not appear in person to deny the above fact. His attorney has also not expressly denied the report made by postman. In such circumstances, a presumption of service would arise unless rebutted. There is no rebuttal of non-service of notice and the report made thereon. Reliance placed on case titled. Muhammad Bashir and others. v. Abbas Ali Shah (2007 SCM R 1105).
10. During the course of arguments, the learned counsel urged that a sum of Rs.10,200/- were incurred as expenses of the attestation of mutation, therefore, he is entitled for the recovery of the same. Learned counsel for the respondent-plaintiff not seriously rebutted this argument, therefore, since the suit of the respondent- plaintiff has been decreed to the extent of 1/2 share of the property, therefore, he has to pay half of the expenses to the petitioner-plaintiff because he has substituted the ownership of the property to the extent of half share.
11. In paragraph-2 of his written statement, the petitioner-defendant averred that the respondent- plaintiff was aware of the suit transaction, as he was asked to purchase the suit property and he had shown unwillingness to purchase the same. Defendant was examined through his attorney (D.W.3). He has deposed that the suit transaction was in the knowledge of the respondent-plaintiff.
Although the petitioner-defendant miserably failed to prove prior knowledge of sale and offer to purchase the suit property, however, had he been proved any such offer to the respondent- plaintiff, it would not amount to waiver of right of preemption. He has not disclosed any active participation of the respondent-plaintiff in finalization of same transaction. No other evidence is available on record to substantiate the claim of the petitioner-defendant. Mere oral statement of petitioner- defendant that respondent-plaintiff-pre-emptor had knowledge of sale is not enough to declare that he has waived or relinquished his right of pre-emption. Waiver, as defined, connotes that it is an intentional relinquishment of a known right. In the instant case, it has not been stated by the petitioner-defendant that in how much price the vendor was selling or the price which the vendees were ready to pay. Moreover, there is nothing on record to show that offer of selling came from vendor. It is by now well settled law that in order to constitute a valid waiver of the right of pre- emption, the offer should be to the effect that the vendor wished to sell the land: vendees or other persons were ready to pay the fix amount and if the pre-emptor wished to exercise his right of pre- emption, he could purchase the property at the same price. It cannot be inferred from circumstances based upon surmises and conjectures that the offer was made by the defendant- vendee and it was refused by the respondent-plaintiff, thus, the pre-emptor cannot be deemed to have waived his right in view of such offer in general terms by vendee or even vendor of his intention to sell the property to a stranger. Mere refusal to purchase suit land by the respondent- plaintiff does not amount to waiver of right of pre-emption. The petitioners-defendants failed to qualify the test laid down by the superior Courts for the proof of waiver. In this respect, reliance is placed on the cases titled Masood Anwar. v. Karim Bakhsh (2004 CLC 1692 Peshawar) and Khizar Hayat and 2 others. v. Muhammad All 2004 CLC 1865 Peshawar).
12. Since both the Courts below concurrently decided all the above referred questions of fact in the light of material available on record, this Court cannot interfere while exercising revisional jurisdiction on the ground that the appraisal of evidence may suggest another view of the matter.
Reliance placed on the case titled Abdul Ghaffar Khan v. Umar Khan (2006 SCM R 1619).
13. In view of the above discussion, this revision petition being without force is dismissed. The findings of the Courts below are maintained on all the issues except that the petitioner-defendant is awarded half of the amount of cost incurred on attestation of mutation i.e. Rs.5050/-. The parties are left to bear their own costs.