MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner being plaintiff of a suit for pre-emption feeling himself aggrieved of the concurrent findings of the two courts below whereby his suit for pre- emption against a sale Mutation bearing No, 748 entered on 19-11-1997 was dismissed by the trial Court vide his judgment and decree dated 13-3-2000 and his appeal against the same also met the same fate when learned Additional District Judge, Swabi vide his judgment and decree dated 19-3-2002 dismissed his appeal. Hence present.
2. The learned counsel for the petitioner submitted that the findings of the two courts below are not only against the law but have been based on misreading and non-reading of the material evidence available on the record. He next contended that the factum of performance of Talbs was proved by the plaintiff in accordance with law but the courts below have wrongly non-suited the pre-emptor for having not performed Talbs in accordance with law and have also wrongly held that the petitioner has waived his right of preemption, and placed reliance on Nazar Hussain Shah and 2 others v. Mst. Khurshid Bibi and others (2002 SCMR 49), Muhammad Tufail and 2 others v.
Ghaus Muhammad through Legal Representatives (PLD 2007 SC 26), Abdul Qayum through Legal Heirs v. Mushk-e-Alam and another (2001 SCMR 798), Abdul Latif alias Muhammad Latif alias Babu v. Dil Mir and others 2010 SCMR 1087), Yar Muhammad Khan v. Bashir Ahmad (PLD 2003 Pesh. 179).
He also referred judgments of Apex Court for interference and indulgence of this Court while exercising the revisional jurisdiction against the concurrent findings of the two Courts below and placed reliance on Asmatullah v. Amanatullah through Legal Representatives (PLD 2008 SC 155) and Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639).
3. As against that, the learned counsel for the vendee/respondent by referring to many discrepancies and contradictions especially with regard to performance of 'Talbs' submitted that the pre-emptor has plotted a fictitious and concocted story of ' Talbs' whereas he was fully aware of the sale in question and by not asserting his right of pre-emption by making talb-emuwathibat at the time of his actual knowledge, has extinguished and waived his right of pre-emption and thus the courts below have rightly non-suited the preemptor by properly appreciating the evidence available on the record. He next contended that the concurrent findings of facts in absence of any misreading or non-reading of material evidence or in absence of any jurisdictional defect, cannot be interfered with Learned.
4. Learned counsel for the parties were heard and record of the case was perused.
5. Record of the case would reveal that the controversy in hand at this stage would only require consideration with regard to question of waiver of the right of pre-emption and non-performance of `Talbe-Muwathibat' in accordance with law as the second "Talb-e-Ishhad" , the right of pre- emption, the market value of the suit property and the sale consideration etc. Are not disputed before this court.
6. The pre-emptor has alleged in his plaint to have performed Talb-eMuwathibat on 4-1-1998 near the suit property at 10-00 a.m. In the presence of Ghulam Haider and Azeem Khan. His notice of Talb-e-Ishhad Exh. P .W .3/1 is silent with regard to place of performance of `Talb-e-Muwathibar .
The evidence led by the pre-emptor would reveal that he for the first time introduced Ghulam Haider and Azeem Khan as the informers of the impugned sale. This very fact is not there in his notice of Talb-e-Ishhad or in his plaint. The impugned sale took place through Mutation No, 748 attested on 19-11-1997 whereas as per notice of `Talbe-Ishhad and plaint, he got knowledge of the suit property on 4-1-1998. The location of the suit property is reflected through a site plan Exh.P.W.1/4 prepared by the Patwari Halqa and the same would reveal that entire area is converted into a residential one. The pre-emptor himself purchased his property vide Mutation No,23 on 13-6- 1995 for the construction of his house and the suit property is situated quite adjacent to the property of plaintiff/petitioner towards its west. The story floated by the pre-emptor regarding getting knowledge of the impugned sale and then performance of `Talb-eMuwathibar, on the face of it, appears to be fictitious and concocted one which cannot be believed because pre-emptor resides in the same village in his old house near the suit property and it is not his case that he was out of village for a considerable long time and failed to get knowledge of the impugned sale of property lying adjacent to his purchased property when possession of the property was also delivered to the vendee who after getting possession, also made some construction in the disputed property. This very fact is also visible from Exh.P.W.l/4, the site plan. The change of possession has always been considered a notice to all. Petitioner failed to rebut or deny such notice. In absence of any plausible reason, it is unbelievable to accept that the pre-emptor got knowledge of the sale of the suit property lying quite adjacent to his property specially when possession has also changed hands. The two Courts below have properly appreciated the evidence in this regard.
7. The judgments of the two courts below would also reveal that question of waiver was also considered by the two courts below and the learned counsel for the petitioner also tried to make out a case that the principle of waiver would not apply to the case of pre-emptor. Perusal of the cases of Nazar Hussain Shah (Supra) and Muhammad Tufail and 2 others would reveal that the question of pre-emption agitated in those cases was with regard to Punjab Pre-emption Act, (I of 1913) and in this respect, it was rightly observed that mere presence of pre-emptor at the time of attestation of mutation and even to act as a witness in the bargain would not be sufficient to prove the waiver of right of pre-emption and could constitute estoppel against the pre-emptor. In the new N.-W.F.P. Pre-emption Act, 1987 (X of 1987), the situation is altogether different. Under the prevailing law, the pre-emptor, the moment he gets knowledge of the sale whether prior to attestation of mutation' or at the time when the mutation is being attested, would be under compulsion of law to declare his intention there and then to pre-empt the said sale otherwise his right of pre-emption, if any, would stand extinguished. So, the case-law referred to above would not be applicable the circumstances of the present case. The plea of waiver in such a manner cannot be alleged under the Act X of 1987.
8. Being concurrent findings of facts alone, cannot be interfered with in exercise of revisional jurisdiction of this court unless the same having been based on misreading and non-reading of material evidence on record or there is some jurisdictional defect in the findings arrived at by the courts below. So, in this view of the matter, this revision petition being merit less is dismissed as such.