' MRS. IRSHAD QAISER, J.---By way of this revision petition, petitioner Fazal Rahim has assailed the validity of judgment and decree dated 16-9-2009 passed by learned ADJ-IX Peshawar whereby he accepted the appeal of the plaintiff/respondent and set aside the judgment and decree of Civil Judge dated 23-12-2008.
2. Precise facts, of the case are that respondent/brought a suit for possession through exercising his right of pre-emption to suit property measuring 1 kanal 10 marlas fully described in the heading of the plaint sold in favour of defendant/Fazal Rahim/petitioner and Fazal Rabi vide registered deed No, 17660 dated 9-8-2004 for sale consideration of. Rs,30000.:
3. It was averted in the plaint that the vendor, without issuance of any notice to the proposed pre- emptor had sold the disputed land at the hands of defendant for Rs,30000, however, an exaggerated sale consideration of Rs,4,80,000 has been shown in registered deed and the transaction was kept secret. It was alleged that respondent/plaintiff came to know about the sale on Monday, 23-11-2004 at 5-00 p.m. Hours at his. Hujra/ Bathak through Shakirullah in presence of Muhammad Islam and Roshan Khan and he there and then declared his right of pre-emption and as such fulfilled Talb-e-Muwathibat and thus performed 1st Talab, where after the respondent sent notice Talb-i-Ishhad duly witnessed by witnesses and thus performed second Talbs. Plaintiff alleged to have superior right of pre-emption being joint/co-owner, contiguous owner and also participator in the immunities attached to the suit land and on 2-12-2004 he filed suit for pre- emption.
4. Petitioner and his brother/ defendants were summoned who appeared and contested the suit by submitting their written statement on multiple legal and factual grounds.
5. Divergent pleading of the parties were reduced to the issues duly reflecting in the judgments of Courts below and after the culmination of trial suit of the plaintiff was dismissed vide judgment and decree dated 23-12-2008. Against that judgment and decree plaintiff filed appeal which was accepted vide judgment and decree dated 16-9-2009 and the suit of the plaintiff was decreed with the direction to the plaintiff to affirm the requisite Court fee within 7-days and to deposit the remaining amount of sale consideration within one month and set aside the judgment and decree of trial Court. Feeling aggrieved petitioner filed present revision petition on various legal and factual grounds mentioned in revision petition.
6. Arguments heard and record perused.
7. Learned counsel for the petitioner/defendant argued that plaintiff/respondent failed to prove the performance of required Talbs. That there are material contradiction in the statement of PWs which have been rightly discussed by the learned trial Court while giving its finding on issue No, 2, that the plaintiff has no superior rights of pre-emption. That plaintiff became: the co-sharer in the disputed khasra vide inheritance Mutation No, 8660 dated 17-2-2005 and it was attested after the institution of suit. Therefore at the time of filing of suit he has no superior rights. That appellate Court had considered the death certificate produced by the counsel of plaintiff at appellate stage and no opportunity was given to petitioner as required under Order XLI, Rule 27, C.P.C. Thus the judgment and decree of appellate Court is not sustainable. While in rebuttal learned counsel for the respondent/plaintiff argued that plaintiff has superior right of pre-emption. Both the Courts have decided this issue in favour of plaintiff. He further argued that.' he has successfully proved the performance of Talb by the production of reliable evidence.
8. Now first question to be determined is that whether plaintiff has been able to fulfil the requirement of Talbs? Both the learned counsel focused their submissions on issue No, 2 as to whether the plaintiff fulfilled the requirement of section 13 of the N.-W.F.P. Pre-emption Act, 1987. In term of section 13 of the Pre-emption Act, the performance of talbs is a condition precedent as it stipulated that the right of pre-emption of a person shall be extinguished unless three talbs are performed. The said provision read as follows:--
13. Demand of pre-emption.
(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(a) Talb-e-Muwathibat;
(b) Talb-e-Ishhad; and
(c) Talb-e-khusumat. Explanation.
(I) Talb-e-Muwathibat means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of preemption.
' Note. Any words indicative of intention to exercise the right of pre-emption are sufficient.'
(I) Talb-e-Ishhad means demand by establishing evidence.
(II) Talb-e-Khusumat means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-e-Muwathibat.
(3) Where a pre-emptor has made Talb-e-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge made Talb- eIshhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee confirming his intention to exercise the right of preemption: ' Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-e-Ishhad in the presence of two truthful witnesses.
(2) Where a pre - emptor has satisfied the requirements of Talb-e-Muwathibat under subsection
(2) and Talb-e-Ishhad under subsection (3), he shall make talb-e-khusumat in the Court of competent jurisdiction to enforce his right of preemption.
9. Since the plaintiff/respondent alleged to have successfully performed the required Talbs and even otherwise, plaintiff in preemption cases are obliged to prove the due performance of Talbs, therefore, evidence of the plaintiff is to be scrutinized to see whether talbs have been proved or not?
Talb-e-Muwathibat.
10. In para No, 2 of the plaint the respondent/plaintiff alleged to have been informed on 23-11-2004 at about 5-00 p.m. By Shakirullah regarding the suit transaction in his baithak in the presence of Muhammad Islam and Roshan Khan and the plaintiff there and then declared his attention to exercising his right of pre-emption. It is in the presence of informer as well as above-noted persons. Along with the plaint copy of Talb-e-Ishhad notice is also available where in the same assertions in the same manner e contained. In support of these assertions, respondent himself was examined as P.W.7, informer Shakirullah was examined as P.W.4 while Muhammad Islam and Roshan Khan were examined as P.W.5 and P.W.6.
11. Plaintiff as P. W.7 stated that on 23-11-2004 at 5-00 p.m. He was sitting in his house when Shakirull h came and informed him about the impugned transaction whereupon he declared his intention to preempt the transaction and in this -manner talb-e-Muwathibat was performed. P.Ws.5 and 6 Muhammad Islam a d Roshan Khan were present there and in the same meeting first Talb as made. The informer Shakirullah was examined as P.W.4. He has al o given the detail of his information to plaintiff on 23-11-2004 at 5-0 p.m. In the baithak of plaintiff, Muhammad Islam and Roshan Khan P.W.5 and P.W.6 also gave the detail of date, time and place in the same tone. They have unanimously stated that they were sitting with plaintiff when Shakirullah came and informed the plaintiff about the transaction on 23-11-2004 at 5-00 p.m. In his Baithak where upon the plaintiff expressed his intention of pre-empting the same transaction. The trial Court while deciding this issue pointed out certain contradiction in the statement of P.Ws. And held that the plaintiff has failed to prove Talb-e-Muwathibat. But the Appellate Court did not agree with the trial Court and held that the trial Court was fallen into error by considering the said inconsistencies as material for discarding the statements of P.Ws. Because these are minor contradiction. In order to `reach the correct conclusion I have minutely gone through the statement of P.Ws. 4 to 7 and hold that the inconsistencies pointed out by the trial Court in the statement of P'.Ws.4 to 7 are not material. It is admit d fact that the 'Talbs were allegedly made on 23-11-2004 while their indene was recorded on 25-11-2008 after the laps of 4 years. It is settled principle of law that minor clerical C omission in the statement of witnesses whose statements were recorded after sufficient time cannot mar to case of plaintiff. Law does not favour to throw away the pre-emptor just on technicalities. Reference is made to PLD 2002 Lahore 280, 2005 YLR 197, 2006 SCMR 1410, PLD 2003 Pesh. 179 wherein it is held "Court in making appraisal of oral evidence on question of Talbs, by indulging in strict scrutiny to find fault, minor omission and contradiction, had caused grave prejudice to the pre-emptor, such " approach by Court below ran counter to sound judicial principles because rules and standards for appraisal of evidence in civil cases were different from those employed in criminal cases as the law has said down different standard of proof for different categories of cases".
12. Keeping in view, the above facts while agreeing with. Appellate Court I hold that approach and representation shown by trial Court in declaring and branding witnesses of Talb as false or untruthful because of minor contradiction or omission in their evidence was not a desirable practice and was disapproved.
13. So in the given circumstances the testimony of as many as 4 P.Ws. About Talb-e-Muwathibat on 23-11-2004 at 5-00 p.m. In the Baithak of plaintiff is more than sufficient and it has been established on record that respondent/plaintiff had duly performed Talb-e-Muwathibat in accordance with law. ii. Talb-e-Ishhad.
14. It is alleged in para No, 3 of the plaint that on 26-11-2004 notice of Talb-e-Ishhad were sent through registry to the defendant. Copies of the notice, registry receipt and AD card are annexed with the plaint. In support of his contention he examined post master as P.W.3 who produced the register pertaining to the receipt. Nos. 1008 and 1009 dated 26-11-2008 Exh.P.W.3/1 and Exh.P.W.3/2.
Plaintiff himself was examined as P.W.7 and also produced Muhammad Islam and Roshan. They have given the detail of the execution of the notice and also exhibited the same as Exh:P.W.5/1 and Exh.P.W.5/2. Both these notices have been exhibited without any objection on the part of defence.
Moreover all the three P.Ws. Have not been cross examined in respect of issuance of the notice. No material question was asked from them in this respect. Defendant Fazal Rabi was examined as DW but he has, not uttered a single word about the service of notices Exh.P.W.5/1 and Exh.P.W.5/2. He did not dispute and or deny the factum of Talb-eIshhad notice. Defendant/petitioner neither himself appeared in the witness box nor produced any one as his attorney. It means that he also accepted the receipt of notice. Thus it has been held that respondent/plaintiff has duly performed and successfully proved the making of Talb-e-Ishhad. iii. Talb-e-Khusumat.
15. The impugned transaction is dated 9-8-2004 and the suit in hand has been filed on 2-12-2004.
So the third Talb is also duly performed. The point of Talbs therefore rightly decided in favour of respondent by appellate Court. It is settled principle of law that in case of divergent findings of two courts below, High Court has to give due attention to finding of lower appellate Court unless it suffers from grave irregularity E or the same are perverse or reason given by lower Court are not sustainable. Reference is made to 2007 SCMR 576.
16. Next question for determination is whether plaintiff has superior rights of pre-emption or not? It is the concurrent finding of both the Courts below that plaintiff has superior rights of pre-emption as the fact is proved from the statement of Patwari Halqa that the disputed property is situated in khasra No, 2904 and the house of the plaintiff is situated on the East side of the property in question. This fact is also reflected in Naqsha Tasweri Exh.DW-1/7 and sale deed Exh.DW-1/1. DW- I also admitted that plaintiff is the resident of same locality and his house is adjacent to the disputed property. Thus there is no dispute to the fact that plaintiff, has superior rights against the defendant. It is also important to note that plaintiff has brought suit against both the vendee Fazal Rahim and Fazal Rabi, But Fazal Rahim did not appear in the witness box nor he authorized anybody else to depose in his favour. Only Fazal Rabi who is not the attorney of defendant No,1 was examined as DW-2 while the present revision petition was filed only by Fazal Rahim while no interest was shown by other vendee Fazal Rabi.
17. Keeping in view the above facts and circumstances of the case I hold that there is no force in the revisici. Petition which is hereby dismissed with no order as to cost.