' MIAN FASIH-UL-MULK, J.---The contradictory findings of the two Courts below are before me in this revision petition, whereby preemption suit of respondent Kabeer Khan though was dismissed by trial Court but it was decreed by the appellate Court in his favour and against the vendee Mst.
Hukam Jana (represented by petitioners as her legal heirs).
2. The property in dispute is a house, measuring about 3-1/2 marla situated in Mohallah Marvi-ha, Illaqa Chowk Nasir Khan, Peshawar City, which was purchased by Mst. Hukam Jana, predecessor of petitioners from Mst. Talseem wife of Fazal Din through registered deed No,374 dated 24-1-2004 for a sale consideration of Rs,4,30,000.
3. Respondent, asserting his superior right of pre-emption on the ground of contiguity, filed a pre- emption suit against vendee on the ground that sale of the house through registry was kept secret from him and it was on 26-1-2004 when he was informed by Rahimullah son of Zar Shah at 9-00 a.m. About the sale in question, who there and then declared his intention to pre-empt the sale, whereafter he sent registered notice to the vendee on 29-1-2004 and filing of the suit on 10-2-2004 thereby fulfilling all the requirements of the three talbs.
4. Vendee contested the suit by filing written statement. Issues were framed and evidence of parties was recorded. It may be mentioned here that during pendency of suit, Mst. Hukam Jana died and petitioners were arrayed as her legal heirs. The trial Court vide judgment dated 24-9-2010 dismissed the suit. Respondent filed appeal, which was decided by learned Additional District Judge-XI, Peshawar vide judgment dated 8-1-2011 and thereby decreed the suit against petitioners.
5. I have heard arguments of learned counsel for the parties and record of the case was also perused.
6. Respondent in support of his claim appeared as P.W.7 and produced the informer Rahim Shah as P.W.4 whereas the marginal witnesses to the notice of 'talb-e-ishhad' i.e, Ayub Khan and Rab Nawaz were produced and examined as P.W.5 and P.W.6 respectively. According to respondent/pre-emptor, he was informed by Rahim Shah in front of his house at 9-00 a.m. On 26- 1-2004 but there is a material contradiction in between the pre-emptor and the informer about the time. According to informer, he came to know about the sale at 9-00 a.m. Through Fazal Din, husband of vendor, who himself has admitted that his house is situated in the third street from the suit house, contiguous to which is the house of pre-emptor. How the time of 9-00 a.m. Could be admitted as correct in respect of gaining information by the pre-emptor when the informer had got knowledge of the same from the husband of vendor at such time. In pre-emption cases, time, date and place are most important for proving the first talb in accordance with law. Moreover, A both the witnesses to the notice of talb-e-ishhad have stated that they did not know the contents of the notice.
7. On the other hand, son of vendee namely Bakhtawar Khan (DW-2) has stated that they had purchased the suit house through property dealers namely Imran and Qaisar; that transaction was struck about the suit house by them about three months prior to the registered deed, as the land- lady was demanding high price of Rs,5 lacs; that during this period, brother of pre-emptor along with two other relatives had come to his house and stated that they want to purchase the suit house and if he purchased the house, there would arise a quarrel between them; that thereafter he informed the property dealers about his intention not to purchase the suit house and also visited the house of vendor, who told us that the pre-emptor wants to purchase the house from her on very cheap rates, to which she is not ready; he then asked the property dealers to have a discussion with the pre-emptor, on which the property dealers held a meeting with the pre-emptor but the same also resulted in failure as the pre-emptor at all costs was not ready to purchase the suit house for more than Rs,3 lacs; that the pre-emptor was in the knowledge of sale of the suit house for about six months prior to the registered deed; that the deal was struck in front of all including the plaintiff/pre-emptor; that the vendor due to poverty was selling the house and pre- emptor was taking advantage of the situation to purchase the same on the rate of his own choice; that even Rahim Shah had brought a party to purchase the suit house.
8. The above deposition of DW-2 was duly supported by the two property dealers namely Qaisar Shah and Imran (DWs-3 and 4). According to DW-3, first of all the vendor had asked them to talk with the pre-emptor if he is interested in the purchase of the suit house; that he along with DW-4 visited the house of plaintiff/pre-emptor and sat in the 'bhaitak' but the pre-emptor Mated that he would not purchase the suit house for more than rupees three lacs; that they told the pre-emptor that a party is willing to offer Rs,4 lacs for the suit house, on which he said that he would be having no objection if the suit house is sold by the landlady at Rs,4,00,000; that thereafter they finalized bargain with the vendee at Rs,4,30,000; that when the bargain was struck and down payment was also made, the pre-emptor came and stated to them that he will pre-empt the sale; that the pre- emptor was in the knowledge of sale along with other people of the area about 5/6 months prior to finalization of the sale with regard to the suit house. Both the Property Dealers vehemently rebutted the suggestion of pre-emptor that he was not in knowledge of the sale.
9. From the above, it is clear that the pre-emptor was in the knowledge of the house being sold by the vendor and that he himself wanted to purchase the same but at a sale consideration of Rs,3 lacs only; hence he waited for the sale of the suit, house in order to get the same through exercise of his right of pre-emption. In the circumstances, his refusal to purchase the suit house after full knowledge of its being sold would be an estoppel in his way to pre-empt the sale; Anwar Baig and another v. Mst. Naziran Bibi and 8 others (1987 CLC 1855).
10. The record is clearly indicative of the fact that the pre-emptor was in knowledge of the sale much prior to the attestation of registered deed and in such circumstances the provisions of section 15 of the N.-W.F.P. Pre-emption Act, 1987 would fully attract for holding that plaintiff/pre- emptor had waived his right of pre-emption. In the case of Zahidullah v. Mohammad Ishaq (2012 YLR 1039), a Hon'ble Bench of this Court has held as under:-- "Ss.13 & 15---Suit for pre-emption---Waiver of right of preemption---Under the prevailing law/Khyber Pakhtunkhwa Preemption Act, 1987, the moment pre-emptor would get knowledge of the sale whether prior to attestation of mutation or at the time when the mutations was being attested, would be under compulsion of law to declare his intention there and then to preempt the said sale, otherwise his right of pre-emption, if any would stand extinguished."
11. For the reasons stated above, findings of the appellate Court keeping in view the evidence available on record cannot be sustained, which clearly speaks of having his knowledge and agreement about sale. Of the suit house by the land-lady and its purchase by the vendee, however, he waited till the time when the transaction was embodied into a registered sale deed and then he brought a pre-emption suit with clear intention to have the suit house at a price less than its market value.
12. Consequently, this revision petition is accepted, the impugned judgment dated 8-1-2011 of the learned appellate court is set aside and that of the learned trial court dated 24-9-2010 is restored with no order as to costs.