' QAISER RASHID KHAN, J.--- Aggrieved of the judgment and decree dated 30-3-2009 of the learned Additional District Judge-IV, Charsadda whereby the appeal of the respondent/plaintiff was allowed, the judgment and decree of the learned Civil Judge-III, Charsadda dated 294-2008 was set aside and the suit of the respondent/plaintiff was decreed, the instant petition has been preferred.
2. Briefly stated facts leading to the instant petition are that the respondent/plaintiff filed a suit for possession through pre-emption against the petitioners/defendants in respect of property measuring 4 kanals purchased through Mutation No,835 attested on 2-4-2004 situated at village Mufti Abad, Tehsil and District Charsadda on the basis of superior right of pre-emption. The respondent/plaintiff averred in the ' plaint that the petitioners/defendants purchased the suit property for a sum of Rs,1,00,000/- vide the said mutation but in order to frustrate the pre-emptive rights of the respondent/plaintiff, a fake amount was mentioned therein. Further averred that the respondent/plaintiff came to know about the sale through her husband namely Mufti Nasir Iqbal at 6 p.m. On 25-7-2004 at her house, she immediately performed Talb-e-Muwathibat in the presence of Mufti Nasir lqbal and Mufti Jamshed Anwar and thereafter issued notice Talb-e-Ishhad to the petitioners/ defendants on 27-7-2004 under registered A/D cover but as the petitioners/defendants refused to surrender the suit property by accepting the sale price of Rs,1,00,000/-, she accordingly approached the learned trial Court through her suit.
2-A. On being summoned, the petitioners/defendants filed their written statement and the divergent pleadings of the parties led to the framing of as many as 14 issues including the relief and then after a full dressed trial, the suit of the respondent/plaintiff was dismissed against which an appeal was preferred before the learned Appellate Court, and vide judgment and decree dated 30-3-2009, the appeal was accepted, the judgment and decree of the learned trial Court dated 29-4-2008 was set aside and the suit of the respondent/plaintiff was decreed. Hence the present petition.
3. Learned counsel for the petitioners/defendants mainly argued the petition on two scores. He firstly argued that whereas the petitioners/ defendants had submitted an application dated 23-4- 2008 before the learned trial Judge alleging therein that no Talb-e-Muwathibat was performed by the respondent/plaintiff and similarly neither notice Talb-e-lshhad nor the plaint bore the signature of the respondent/plaintiff and hence she be personally summoned before the learned trial Court and if need be, the report of the expert be obtained in this respect which was duly replied to by the respondent/plaintiff but the learned trial Judge though dismissed the suit of the respondent/plaintiff, but no decision on the said application was made in the judgment of the learned trial Judge and same was the case with the judgment of the learned Appellate Court as well. He next argued that the respondent/plaintiff did not appear before the learned trial Court to record her statement and instead her special attorney appeared on her behalf which was violative of the basic spirit of the law on the subject-matter as pre-emption being a personal act, she was supposed to have recorded her own statement and similarly should have faced the cross- examination as well and thus the judgment and decree of the learned appellate court is liable to be set aside and accordingly the suit of the respondent/plaintiff be dismissed.
4. Learned counsel for the respondent/plaintiff on his turn defended the impugned judgment and decree of the learned appellate court on almost the same grounds as enumerated therein.
5. Arguments heard and record perused.
6. As is evident from the record, the respondent/plaintiff Mst. Roida GuI filed a suit for possession through pre-emption against the petitioners/defendants in respect of property measuring 4 kanals purchased through Mutation No,835 attested on 2-4-2004 situated at village Mufti Abad, Tehsil and District Charsadda on the basis of superior right of pre-emption. She averred in the plaint that she came to know about the impugned sale through her husband namely Mufti Nasir Iqbal at 6 p.m. At her house on 25-7-2004 and she immediately declared her intention to pre-empt the sale in the presence of Mufti Nasir Iqbal and Mufti Jamshed Anwar and thereafter on 27-7-2004, she sent notices Talb-e-Ishhad to the petitioners/defendants duly witnessed by two witnesses through registered post under ND cover. During the course of evidence, the respondent/plaintiff produced Shah Jehan Post Master G.P.O Charsadda as P.W.1 who verified the receipts in respect of the registries appearing at Nos.92 to 95. P.W.2 is the statement of Zakir Ullah village Post Master Sardheri who stated to have delivered the registered notices to the petitioners/defendants. Ameer Zaman Patwari Halqa Mauza Mufti Abad recorded his statement as P.W.3 and thereafter Mufti Nasir Iqbal appeared before the learned trial Judge as P.W.4 and recorded his statement as special attorney of the respondent/plaintiff. Mufti Nasir Iqbal is also the husband of the respondent/plaintiff as well as the informer in the instant case, and to this effect he recorded his detailed statement. It needs no reiteration that right of pre-emption is something personal to an individual. Once both the Talbs i,e, Talb-eMuwathibat and Talb-e-Ishhad had been performed by the respondent/plaintiff herself, then it was incumbent upon her to have appeared before the learned trial Judge to record her statement to that effect and to prove the performance of Talbs before the Court. Her abstention from the court raise serious questions regarding the performance of Talbs by her and the presumption that can be safely drawn is that she was not willing the face the test of cross examination. The reference to section 14 of the N.-W.F.P. Pre-emption Act, 1987 by the learned appellate court while decreeing the suit of the respondent/plaintiff is both misplaced and misconceived. It is thus relevant to refer to the very language of section 14 which is reproduced as below:--- "14. Demands by the guardian or agent.--- Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf."
7. The said section caters to a situation where the demands are made by a guardian or agent on account of inability of a person to make such demands under section 13 of the Act ibid. However, in the present matter there was neither any inability or disability on the part of the respondent/plaintiff as she had made the alleged demands of Talb-eMuwathibat and Talb-e- Ishhad herself. It was after the performance of Talb-e-Khusumat through the filing of the pre- emption suit before the learned trial court when she appointed Mufti Nasir lqbal as her special attorney to record statement on her behalf. It goes without saying' that the intention to pre-empt a certain property lies only in the mind of the pre-emptor whereby he/she makes a jumping demand on coming to know about the sale. Nobody else but the pre-emptor himself/herself has to present an account for the performance of Talb-e-Muwathibat or for that matter Talb-e-Ishhad before the learned trial Court. There is no embargo on the pre-emptor to appoint any attorney to pursue the suit on his/her behalf but the said attorney cannot be a substitute of the preemptor under the law.
The non-appearance of the respondent/plaintiff during the course of evidence before the learned trial Judge leads to the only conclusion that the Talbs were not performed in accordance with law and thus her pre-emption suit was bound to fail. Reliance in this respect may advantageously be placed on "Abdul Qayyum v. Muhammad Sadiq" (2007 SCM R 957).
8. For the reasons stated above, this revision petition is accepted the judgment and decree dated 30-3-2009 of the learned appellate court is set aside and that of the learned trial Court dated 29- 4-2008 is restored and thereby the suit of the respondent/plaintiff is dismissed. No order as to costs.