Aggrieved of the judgment and decree dated 23.02.2010 passed by the learned Additional District Judge-IV, Mansehra vide which his appeal was dismissed and the judgment and decree dated 03.11.2009 of the learned Civil Judge-VIII Mansehra whereby his suit was dismissed, the petitioner namely, Ghulam Nabi has filed the instant revision petition.
2. Briefly stated facts of the case are that the petitioner/plaintiff filed a suit against Ali Muhammad etc. respondents/defendants for declaration in relief Alif to the effect that the suit property mentioned in the heading of the plaint was the ownership of Mohabbat Khan, Respondent/Defendant No, 8, now dead and represented through his legal heirs, i,e, respondents/defendants No, 8 to 17, and was in possession of the petitioner. That the suit property was never mortgaged property nor had any mortgage amount been received. He assailed the suit property as mortgage through wasiqa No, 1086 dated 23.10.1996 as wrong, fictitious and the result of collusion, hence liable to be cancelled. He also assailed the revenue record on the basis of Wasiqa No, 306 dated 06.4.2001 as wrong, fictitious, ineffective upon his rights and thus liable to be cancelled. In relief 'Bay', the petitioner/plaintiff sought possession of the suit property through exercise of right of pre-emption at the sale consideration of Rs, 1,00,000/- alleging that he got knowledge of the sale transaction at patwar khana at about 11.30 a.m and there and then he declared his intention to pre-empt the suit land followed by notices talbe-ishhad sent to the respondents/defendants No, 1 to 6 in the presence of witnesses and accordingly instituted a suit.
3. The defendants filed their written statement on 15.10.2001 and the pleadings of the parties gave birth to the framing of as many as nine issues including the relief. On evaluating the evidence brought on record and considering the arguments addressed at the bar by the learned counsel for the parties, the suit of the petitioner/plaintiff was decreed by closing the evidence of the defendants under Order XVII Rule 3, CPC on 25.6.2005. However, the revision petition of the defendants preferred there against was accepted by this Court vide judgment dated 02.10.2007 and the case was remanded to the learned trial Court with the directions that it shall not reopen the chapter of evidence rather provide opportunity of hearing to both the parties. After remand of the case, it was again dismissed by the learned trial Judge on Q3.11.2009 and the appeal filed there against was also dismissed vide judgment and decree dated 23.02.2010, hence the instant petition.
4. Learned counsel for the petitioner argued that the impugned findings of the learned lower Courts are against law and facts on record and the result of mis-reading and non-reading of evidence available on record; that the learned trial Court has considered the evidence in piecemeal and not in its entirety which is an illegality and irregularity ; that the petitioner/plaintiff had satisfactorily performed the requirements of talbs in accordance with law which was wrongly ignored by both the learned Courts below while passing the impugned findings; that both the Courts below failed to take into consideration the remand order of this Court passed in Civil Revision No, 200/2006 and, therefore, the impugned findings are liable to be set at naught
5. The learned counsel for the respondents/defendants on his turn supported the impugned judgments and decrees of both the learned Courts below on almost the same grounds fully enumerated therein and argued that no interference is required in the concurrent findings of the Courts below.
6. Arguments heard and record perused.
7. Section 13 of the NWFP Pre-emption Act, 1987 envisages that the right of pre-emption of a person shall be extinguished unless he makes demands of pre-emption in-the following manner, namely:- -
(i) Talb-e-muwathibat, i,e, immediate demand by a pre-emptor in the same sitting/majlis where he came to know about the sale transaction declaring his intention to exercise of his right of pre- emption;
(ii) Talb-e-ishhad, i,e, demand by establishing evidence and,
(iii) Talb-e-Khasumat, i,e, demand by filing a suit.
8. In the case in hand, the petitioner neither mentioned the date nor the informer nor for that matter the date of notice talb-e-ishhad in his plaint. However, while appearing as PW-8, the petitioner namely, Ghulam Nabi introduced the date of talb-e-mdwathibat as 23.5.2001 and also mentioned the patwari halqa to be his informer through whom he allegedly came to know about the sale in question. It is a settled law that non-mentioning of date, the person through whom the pre-emptor came to know about the sale and the date of notice talb-e-ishhad in the plaint are fatal to a pre-emption suit. Even otherwise, the non-mentioning of date of talb-e-muwathibat in the plaint also casts serious doubt on the performance of talb-e-ishhad because as per sub- section (3) of Section 13 of the Act ibid, 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 notice under Section 32, or knowledge, whichever made be earlier make talb-e-ishhad by sending a notice in writing attested by two truthful witnesses. Sans the mentioning of date of performance of talb-e-muwathibat in the plaint, the prescribed period of 14 days which is to be reckoned from the date of performance of talb-e--muwathibat becomes an enigma which only the pre-emptor has to resolve. Though by way of damage control, the petitioner in his statement both mentioned the date of talb-e-muwathibat as 23.5.2001 and the patwari halqa to be his informer, but during the course of evidence he failed to produce the said informer to lend credence to his alleged performance of talb-e-muwathibat. In such a situation, where a pre-emptor failed to put the informer in the witness box, the obvious presumption that can be drawn is that the pre- emptor feared that if the witness was produced and examined, he would either not support his story of talb-e-muwathibat or would not stand the test of cross examination Reliance in this respect is placed on 2002 SCM R 235, 2007 SCM R 895, 2007 SCM R 1491 and 2011 SCM R 1545.
9. As far as talb-e-ishhad is concerned, the petitioner/plaintiff failed to mention the date of notices in his plaint. Moreover, in the notices, the petitioner/plaintiff mentioned that he went to patwar khana alongwith PW-6, Sultan Mehmood (who also happens to be his real brother) on 23.5.2001, but he did not narrate the said facts while recording his statement as PW-8. Similarly, Sultan Mehmood while recording his statement as PW-6 stated that on 23.5.2001, he alongwith Anwar Khan (PW-7) went to Shinkiari patwar khana and while they were sitting there, the petitioner arrived. From the narration in the notices of talb-e-ishhad and the statement of PW-6, it is safely presumed that either of the two or for that matter both are not the true narration of the facts.
Likewise, PW-7 namely, Anwar Khan while recording his statement stated that he alongwith Sultan Mehmood went to Shinkiari patwar khana but did not specify the date. He too belies the averments of notices of talb-e-ishhad wherein the petitioner alleged to have visited the patwar khana alongwith his brother Sultan Mehmood. Thus it shows that both PW-6 and PW-7 are not truthful witnesses and thus reliance cannot be placed on their testimony.
10.As a sequel to the above discussion, it is amply evident that the petitioner failed to prove the performance of the two talbs which are the sine qua non for the success of a pre-emption suit.
11.The learned tvvo Courts below have recorded concurrent findings of facts in favour of the respondents which are based on sound application of evidence available on the file. The same cannot be set at naught unless it is proved that the same are either perverse or erroneous in view of the dicta handed down in the cases of Abdur Rahim and another Vs. Mst. Jantay Bibi and others (2000 SCM R 346), Haji Muhammad Din Vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rasheed Ahmad Vs. Muhammad Siddique (PLD 2002 SC 293).
12.For the reasons mentioned above, the instant revision petition being bereft of any merit is hereby -dismissed with no order as to costs.