' SHAH JEHAN KHAN AKHUNDZADA, J.--- Through this single judgment, I intend to dispose of the instant Civil Revision No,109 of 2007 as well as connected Civil Revision No,262 of 2007 as both these petitions are the outcome of one and the same judgment of the learned appellate Court. The facts leading to this revision petition are that Faqir Muhammad and Ghulam Nabi petitioners/defendants had purchased a Shop No,11, Block 6 situated on Tangi Road Charadda in Khasra No,947/1 description of which had been fully given in the heading of the plaint through Mutation No,11176 attested on 7-5-2002 for ostensible sale consideration of Rs,2-lacs and alleged that exaggerated/exorbitant amount had been entered in the suit mutation.
2. Mehtab Gul, respondent/plaintiff instituted suit to enforce his right of pre-emption in respect of the suit shop on the ground of ownership, contiguity and participator in the appendages in amenities while the petitioners/defendants have got no such rights. According to the respondent/plaintiff he has got the knowledge of the suit transaction on 11-7-2002 at 600 p.m. In his house through Usman Gul and on receipt of this information he made Talb-e-Muwathibat there and then in presence of the aforesaid informer and Haji Muhammad Parvez and thereafter said the above named plaintiff asked petitioners/defendants to accept his right of pre-emption but in vain.
Later on, on 15-7-2002 the notices of Talb-e-Ishhad were sent to the petitioners/defendants through registered AD and thereafter by way of enforcing his right of Talb-e-Khusumat he brought this suit for pre-emption.
3. The petitioners/defendants contested the suit by submitting their written statement wherein they raised various factual and legal objections and grounds. Divergent pleadings of the parties gave birth to the following issues:--- ' ISSUES;
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is estopped to sue by the principle of estoppel?
(3) Whether the suit is bad in its present form?
(4) Whether the plaintiff has fulfilled the requirements of Talbs or suit is liable to dismissal on account of its non-fulfillment?
(5) Whether the suit is time-barred?
(6) Whether the suit property has been purchased by defendants on payment of sale consideration Rs,7,90,000/- and Rs,15,600/- as mutation fee has been paid bonafidely and in case of decree the 'vendee is entitled to it?
(7) Whether the defendants have made improvements by making new construction if so, to what extent and effect?
(8) Whether the plaintiff has waived his right of pre-emption?
(9) Whether the plaintiff has got superior right of pre-emption?
(10) What is the actual market value of the suit property?
(11) Whether the plaintiff is entitled to the decree as prayed for?
(12) Relief.
4. In order to prove his claim, the respondent/plaintiff besides himself produced five witnesses while petitioner No, 1/defendant appeared himself and produced two witnesses in support of their contentions. After recording of evidence of the parties and hearing the learned counsel for the parties; the learned trial. Judge dismissed the suit of the respondent/plaintiff vide his judgment and decree dated 22-3-2006. Feeling himself aggrieved from the above findings of the trial Court respondent/plaintiff preferred an appeal, before the learned Additional District Judge-H, Charsadda who vide his judgment and decree dated 29-11-2006 accepted the same, set aside the judgment and decree of the trial Court and decreed the suit in favour of the respondent/plaintiff on payment of Rs,7,80,000/- as sale consideration and directed him to deposit the same within thirty days failing which his suit will stand dismissed.
5. Feeling aggrieved from the judgment and decree of the learned appellate Court, both the parties have preferred two separate revision i,e, one by the petitioners/defendants (No,109/7) and the other by the respondent/plaintiff (No,262/2007).
6. Vide judgment of this Court dated 16-2-2007, the instant revision petition were dismissed in limine. Feeling aggrieved from judgment of this Court, the petitioners/defendants preferred an appeal before the August Supreme Court of Pakistan (Civil Appeal No,955 of 2007) which- was accepted vide judgment dated 2-2-2011 and the judgment of this Court was set aside and the case was remanded back to this Court for re-examination of evidence. The concluding para of the judgment of the Apex Court is 'reproduced as under:- "The learned counsel for the appellants brought to our notice a number of factual errors in the impugned judgment, particularly, the observation that the Appellate Court had dismissed the appeal. The learned counsel thus argued that though the judgment of the Appellate Court was at variance with that of the Trial Court, the High Court proceeded on the premise that the appellants, had assailed concurrent findings of facts. That the learned Judge in the High Court had examined the case on an erroneous assumption. That, perhaps, that is why the revision petition was dismissed in limine, whereas, it is a practice of that Court to admit civil revisions to full hearing when judgments of two Courts are at variance. The learned counsel also made submissions on merits. However, the learned counsel for the respondent admitted that in view of material flaws in the impugned judgment regarding approach of the learned Judge, the case caught to be re-examined by the High Court. Agreeing with this proposition and in view of arguments addressed by the learned counsel for the appellants, we allow this appeal, set aside the impugned judgment and remand the case to the High Court for hearing of Civil Revision No,109 of 2007, which shall be deemed to be pending."
7. It is worth-mentioning here that the connected Civil Revision No,262 of 2007 filed by Mehtab Gul against Faqir Gul etc. Against the impugned judgment and decree dated 29-11-2006 regarding the market value of the suit property, was adjourned sine die on the request of both the parties till the decision of August Supreme Court of Pakistan in the instant revision petition vide order sheet of this court dated 22-12-2008.
8. I have heard the learned counsel for the parties and have also perused the material available on the file.
9. Learned counsel for the petitioners/defendants confined his arguments to issue No,4 with regard to .Requirements of Talbs and attempted to argue that the suit was dismissed by the learned trial Court for valid reasons and the learned appellate Court had no justifiable reason, to take contrary view for decreeing the suit. According to the learned counsel, the learned appellate Court has recorded his findings in a mechanical manner without applying his mind judiciously in total disregard to the materials available on file consequence whereof complete failure of justice rather flagrant, miscarriage of justice was committed by the learned appellate Court below, thus, he requested that the impugned judgment is neither tenable nor sustainable in the eye of law. On the other hand, learned counsel for the respondent/plaintiff supported the judgment and decree passed by the learned appellate Court and contended that since respondent has fulfilled the requirements of Talbs as provided under section 13 of the N.-W.F.P. Pre-emption Act, 1987 and in this respect the learned appellate Court has rightly appraised the evidence produced by him and thus has drawn a correct conclusion by holding that appellant has fulfilled the requisite talbs and has rightly reversed findings of the trial Court on the matter in issue agitated in issue No,4 and thus answered it in favour of the appellant. He has also challenged the findings of the learned appellate Court regarding sale consideration and has submitted that the petitioners/defendants have purchased the suit shop of the subject-matter of dispute for sale consideration of Rs,2-lacs but the appellate Court has wrongly fixed the market value of the same as Rs,7,80,000/- and has wrongly and illegally and without justification held that actual sale consideration to the tune of Rs,7,80,000/- has been paid by the vendees to the vendor. Lastly, he contended that this revision being meritless be dismissed.
10. Before appreciating the evidence on record, I would like to say that it is mandatory that in a pre- emption suit, a person who intends to pre-empt a sale transaction by way of enforcing his right of pre-emption he shall make an immediate demand in the sitting or meeting in the shape of 'Talb- e-Muwathibat' which is pre-requisite and mandatory under the provisions of section 13 of N.-W.F.P.
Pre-emption Act, 1987 amended up to date before enforcing his right of 'Khusumat'. Thereafter he shall ' make or perform Talb-e-Ishhad by sending a written notice duly signed by two truthful witnesses through registered post or other mean if the, facility of post office is not available in the area where the sale has taken place within two weeks/fourteen days of performing Talb-e- Muwathibat to the vendees informing him or them about his intention that he will exercise his right of pre-emption and had already performed Talb-e-Muwathibat as soon as he got knowledge of the sale in question in accordance with the spirit of section of 13 of the N.-W.F.P. Pre-emption Act, 1987 amended up to date and thereafter he will institute suit for pre-emption within 120 days which has prescribed limitation for institution of such like suits by way of performing Talb-e-Khusumat.
11. The above is a settled proposition of law in pre-emption cases that right of pre-emption cannot be exercised unless and until the preemptor has performed the requisite talbs mentioned in section 13 of the Act ibid. Any discrepancy or delay in performing requisite talbs for enforcing his right of pre-emption will non-suit the pre-emptor from institution of pre-emption suit by way of Talb-e-Khusumat because non-performance of above talbs extinguishes his right of preemption within the meaning of section 13 of N.-W.F.P. Pre-emption Act, 1987.
12. It may not be out of place to mention here that the pre-emption right is a feeble right, therefore, pre-emptor seeking to exercise such right is required to perform and fulfil requirements of talbs mentioned in section 13 of the Act, meticulously in accordance with law and shall prove and establish it through unimpeachable and confidence-inspiring oral or documentary evidence by producing the truthful witnesses, who are neither heirs nor closely related him and any failure in that behalf would deprive him of succeeding in getting a pre-emption decree as held in Wahid Bakhsh and others v. Abdul Qayum and others 1997 M LD 2945 (Peshawar)". Now, I am going to appraise appreciate, scrutinize and scan the evidence on record to draw correct conclusion that the preemptor has performed the requisite talbs or has also succeeded that he has superior right of pre-emption or not.
13. Perusal of the entire evidence produced by the respondent/ plaintiff on the question of fulfillment of requisite Talbs reveals that it is discrepant, contradictory, therefore, the same cannot be termed as confidence inspiring, convincing and unimpeachable or conclusive for holding that the pre-emptor has proved or established that he has performed the requisite `Talb-e- Muwathibae and `Talb-e-Ishhad' in accordance with the mandate of section 13 of N.-W.F.P. Pre- emption Act, 1987. It may also be mentioned here at the very outset that a finding on question of fact by the first Appellate Court based on appraisal of evidence and inference drawn therefrom could not be interfered with by this Court under section 115, C.P.C. Merely because the said Court on reappraisal had formed a different opinion about the evidence based on different inferences drawn by it but findings could only be set aside under section 115, C.P.C., if the findings of the learned appellate Court are suffering from misreading or non-reading of material piece of evidence on the record which is crystal dear from the re-appraisal of evidence in the case in hand.
It is established from the evidence on record that the plaintiff/respondent has totally failed to establish the performance of talbs through conclusive evidence therefore, the findings of the learned appellate Court on Issue No,4 are not sustainable in the eyes of law. In support of my above conclusion I would like to give some touch to the evidence available on record to see whether the learned appellate Court below has properly appreciated the evidence on record for recording his finding's or not vide which he has set aside the judgment and decree of the trial Court. Let us discuss the evidence on the following paragraph.
14. Respondent/plaintiff when appeared as P.W.4 has stated that at evening time at 6-00 p.m. He was sitting in the house with his brother Haji Parvez, meanwhile he was informed by Usman Gul his brother that the shop in dispute had been purchased by the petitioners/defendants and thus he there and then declared his intention that he will pre-empt this sale. Later on the respondent/plaintiff sent his two brothers named above to the petitioners/defendants for accepting his claim to purchase the suit shop but they refused. He on the following day obtained the copy of the sale mutation and after four days he and his brothers went to the court premises to a lawyer for scribing notice. Two notices were got prepared and the original notices were issued to the petitioners/defendants. The petitioners/defendants denied the proper performance of Talbs by the respondent/plaintiff and stated in the written statement that no notice has been served on them. Respondent/plaintiff in his statement as P.W.4 in his cross-examination had deposed that he had got information about the sale transaction almost after two months of the sale in question. He further stated that Haji Muhammad Parvez delivered the notices to the petitioners/defendants through Post Office and he was also present on the said occasion. While Haji Parvez while appearing as P.W.-5 in the trial Court had stated in the cross-examination that the notices were delivered to the Post Office by the respondent/plaintiff and he has no knowledge about his presence at that time. Usman Gul alleged informer P.W.6 had deposed in his cross-examination that the respondent/plaintiff has delivered the notice to the petitioners/defendants through Post Office and he was not present with him at that time. Furthermore Usman Gul P.W.6 has categorically stated in the first 3 line of his cross-examination that he had received the knowledge of the sale of the suit shop about 8/10 days after the attestation of the sale mutation which had been admittedly attested on 7-5-2002 if this court consider the assertion of this P.W. As true then it would mean that he received information of the sale transaction on 17-5-2002 but according to contents of the plaint and evidence of the plaintiff he had received- information of the sale in question on 11-7-2002 after about two months of the receipt of the information in respect of the, sale in question and conveyed to the plaintiff by Usman Gul informer hence, the entire story put forth by plaintiff in his plaint and statement before the Court seems doubtful and false and cast serious doubt on the veracity of the testimony of the witnesses of the plaintiff/respondent including himself renders their testimony unbelievable and false and cannot be taken into consideration rather deserves to be brushed it a side out rightly. Faqir Muhammad petitioner No, I/defendant had also stated that his father Abdul Malik had purchased the suit shop for a sale consideration of Rs,7,90,000/- through written deed dated 17-12-1996 and had also taken its possession from the vendor. He had further stated that at the time of the sale of the suit property the respondent/plaintiff along with his brothers namely Gul Zarin and Zahid were also present and on their advice the petitioners/ defendants purchased the suit shop and they also signed and thumb- impress the sale-deed dated 17-12-1996.
15. Thus the combined effect of reading the statements of the witnesses produced by the respondent/plaintiff regarding requisite talbs clearly indicates that there are material contradictions and discrepancies as to the knowledge of the sale and sending notice to the petitioners/ defendants and the trial Court had rightly rejected their evidence while dismissing the suit of the respondent/plaintiff and thus the findings of the learned trial Court on the relevant issue of non-performance and fulfillment of requisite talbs in accordance with law are based on sound reason on the ground of being based on proper appraisal of evidence and the learned Appellate Court was having no justification much less plausible and legal, to interfere with the same. The learned Appellate Court has not at all properly assessed, scrutinized and appreciated the evidence on record result whereof is that it has committed grave miscarriage of justice and thus its findings neither tenable nor. Sustainable but the learned Appellate Court below has exercised powers not vested on it by law rather has failed to exercise jurisdiction vested in it by law and the learned court concerned has committed grave illegality and material irregularity by recording finding on Issue No,4 in favour of respondent/plaintiff.
16. So, the crux of the above discussion leads me to hold that learned appellate court below has erred in holding that the plaintiff had fulfilled the requisite talbs in accordance with law on the subject and, therefore, its findings and conclusion in this respect are not sustainable in the eye of law. Hence, I have no other option but to accept this revision petition.
17. Resultantly, this revision petition is allowed, judgment and decree dated 29-11-2006 of the learned Appellate Court is set aside and that of the trial Court dated 22-3-2006 is restored meaning thereby that the suit of the respondent/plaintiff is dismissed with cost and the connected Civil Revision No,262 of 2007 having become redundant stands dismissed.