' ABDUL LATIF KHAN, J.---Aggrieved of the judgments and decrees dated 19-8-2009 and 26-5-2008 passed by the learned Additional District Judge-V, D.I.Khan and the learned Civil Judge-VI, D.I.Khan respectively vide which he was non-suited, the petitioner has preferred, the instant revision petition.
2. The facts giving rise to the instant petition are that the petitioner/plaintiff filed a suit against the respondents/defendants for possession through pre-emption regarding the land, fully described in the heading of the plaint, sold through Mutation No,313 dated 16-6-2001 for sale consideration of Rs,2230, but the transaction has been given the colour of gift. It was averred in the plaint that the petitioner/plaintiff is co-sharer in the suit property and has got superior right of pre-emption. It was further averred that he came to know about the transaction on 18-6-2001 at 'Asar-vela' in his house through one Baloch Khan and there and then declared his intention to pre-empt the suit land followed by notice Talb-e-Ishhad mailed to the respondents/defendants.
3. The respondents/defendants contested the suit by filing their written statement. The learned trial Court framed issues arising out of the pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-VI, D.I. Khan dismissed the suit of the petitioner/plaintiff vide judgment and decree dated 26-5-2008. Aggrieved of the same, he preferred an appeal which was also dismissed by the learned Additional District Judge-V, D.I. Khan vide judgment and decree dated 19-8-2009, hence the instant revision petition.
4. The learned counsel appearing on behalf of the petitioner argued that the courts below have failed to appreciate the claim of the petitioner and evidence recorded in mechanical way. He contended that Talb-eMuwathibat was performed by the petitioner/plaintiff and proved by producing cogent evidence in this regard without any material contradictions in the statements of P.Ws, but this aspect of the case has not been properly appreciated by the Courts below.
5. As against that, the learned counsel appearing on behalf of the respondents contended that there are grave contradictions in the statements of plaintiff and his witnesses with regard to the performance of Talb-e-Muwathibat. He contended that date and time has not been proved by producing confidence inspiring evidence and as such the judgments and decrees passed by the Courts below are not well reasoned.
6. I gave my deep thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
7. Para-3 of the plaint reveals that the plaintiff acquired knowledge through Baloch Khan, informer, on 18-6-2001 at 'Asar-vela' in his house situated at village Kot Tagga, District D.I.Khan and there and then announced his intention to pre-empt the suit land. The plaintiff appeared as P.W.3 and omitted in his statement the place of performance of Talbe-Muwathibat i,e, his house by saying that he was present in Kot Tagga, a village, on 18-6-2001 when Baloch Khan, informer, came at 'Chowk' and disclosed the information regarding gift mutation which was sale and he there and then announced his intention to pre-empt the same. This statement lacks the third ingredient of time apart from the place which has been substituted by 'Chowk' instead of house. Baloch Khan, informer (P.W.4) deposed that disputed mutation was attested on 16-6-2001 in Patwar Khana, Chaudhwan and on the next day, he went to Kot Tagga to see the plaintiff and informed him about the same who disclosed his intention to pre-empt the same, meaning thereby that according to this witness, he disclosed the information on 17-6-2001, contrary to plaintiff, who stated to have acquired the knowledge on 18-6-2001. This witness too has not corroborated the plaintiff on all aspects i,e, date, time and place. These being material contradictions, go to the very root of the case.
8. The plaintiff was duty bound to prove the performance of talb-emuwathibat through evidence but failed to corroborate the stance taken in the plaint and as such the requirements of section 13 of the N.-W.F.P. Pre-emption Act, 1987 have not been complied with in letter and spirit. It is pertinent to mention that the plaint does not disclose the date on which notice Talb-e-Ishhad was allegedly sent to the vendee/defendants. This deficiency in isolation is sufficient to non-suit the plaintiff as it is by now established that a prospective pre-emptor has to mention date, time and place of Talb- e-Muwathibat and date of sending notice Talb-eIshhad in the plaint and in case of failure, can be non-suited on the score.
9. The wisdom behind the immediate demand is the essence of performance of Talb-e- Muwathibat which could not be said to have been performed as para-3 of the plaint reveals that no specific time was given by the plaintiff as required under the law and has confined only to the term `Asar-vela' with regard to the information disclosed to him by the informer. The phrase 'Asar- vela' does not come within the ambit of exact time when the alleged Talb-e-Muwathibat was performed by the plaintiff. It does not signify and specify particular time, rather denotes a period comprising of minimum 2-3 hours during the month of June as the alleged Talb-e-Muwathibat was performed on 18-6-2001 and as such being spread over hours, the time was not exact and does not come within the ambit of time specified for the purpose of mentioning in the plaint and amounts to non-compliance of section 13 of the N.-W.F.P. Pre-emption Act, 1987.
10. Apart from the above, perusal of the disputed mutation reveals that it was a gift mutation and the plaintiff has not challenged the same in the plaint with declaration to the effect that colour of gift has been given to the mutation which is in fact sale. Needless to mention that the transaction of gift is not pre-emptible under the law, so, to pre-empt such transaction, it was obligatory upon the plaintiff to get it declared from the Court as in fact sale and as a consequential relief, the same has to be pre-empted as sale and not gift. No serious effort has been made to this effect by the plaintiff both in the pleadings and evidence recorded in support of the plaint. Section 2(d) of the N.-W.F.P. Pre-emption Act, 1987 is reproduced below for ready reference:-- "Sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba-bil-iwaz or hiba-bi-shart al-iwaz but does not include---
(i) Transfer of an immovable property through inheritance or will or gift, other than hiba-bil-iwaz or hiba-bi-shart al-iwaz;
(ii) .
(iii) .
(iv) .
(v) .
The sale has been defined in the referred provision as transfer of ownership in exchange for valuable consideration and it does not include gift as transfer by way of gift is not pre-emptible under the law.
' Section 5 of the NWFP Pre-emption Act, 1987 is also reproduced below for convenience:- "Right of pre-emption.---(1) The right of pre-emption shall arise in case of sale.
(2) Nothing contained in subsection (1) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale."
' The transaction in question ostensibly shown as gift can be declared by the Court as sale if prayed for by the plaintiff. The Court has ample power to hold any alienation apparently other than sale as in fact a sale, but no such prayer has been made by the plaintiff. In such state of affairs, the format of the suit being defective in nature, the plaintiff can be non-suited on this score alone.
11. For the reasons mentioned, above, the instant petition being bereft of any merit and substance is hereby dismissed, leaving the parties to bear their own costs.