MRS. IRSHAD QAISER, J. --- Khalid and three other petitioners, have directed the instant revision petition against the judgment and decree of the learned Additional District Judge-VI, Abbottabad dated 19.09.2009, whereby the appeal of the present petitioners against the judgment and decree of learned Civil Judge-V, Abbottabad, dated 30.10.2007 was dismissed.
2. The brief and essential facts leading to the present revision petition are that the present petitioners instituted a suit for possession through pre-emption of suit property bearing Khasra No. 559 Khata No. 1339 measuring two Kanals out of 12 Kanals, 4 Marlas situated at Mouza Damtor, Tehsil & District Abbottabad, which was transferred through registered deed No. 1684, dated 27.10.2000 and through Mutation No. 4160 attested on 19.01.2001 in favour of respondent on the basis of co-sharer-ship, contiguity and participation in amenities and appendages. It is alleged in the plaint that the suit property including petrol pump was the ownership of Maroof Jan.
The present respondent purchased the suit property through registered deed referred to above for consideration of Rs. 1,000,000/-, but in order to defeat their right of pre-emption fake and fictitious amount of Rs. 2,800,000/- was entered in sale-deed. The present petitioners received information about the sale of the suit property on 08.02.2001 at 9.00 p.m. In their house through Ijaz Ashraf Kiani son of Muhammad Ashraf Kiani resident of Nawasheher. The petitioners immediately at the same time and in the said meeting made Talb-e-Mutwathibat. Thereafter, on 12.02.2001 notice of Talb-e- Ishhad was sent to respondent through registered AD having signed by two witnesses. The respondent was asked to admit the right of the petitioners and hand over the possession of suit property to the petitioners but he denied, hence, the suit.
3. The present respondent was summoned by the learned Trial Court. He appeared and contested the suit by filing his written statement. From the pleadings of the parties, the learned Trial Court framed issues.
4. After framing of issues the parties were directed to produce their pro and contra evidence in support of their contentions. The parties produced their evidence in-respect of their claims and after hearing learned counsel for the parties, the suit of the present petitioners was dismissed.
Aggrieved from the said order, the petitioners have filed an appeal before the appellate forum, which also met the same fate. Hence, the present revision petition.
5. Arguments of learned counsel for the parties heard and available record thoroughly perused with their_ assistance.
6. The learned counsel for petitioner vehemently argued that the Appellate Court has failed to appreciate the evidence of the petitioner qua performance of Taibs in its correct legal perspective in accordance with the settled principles, that the petitioners have proved the talabs in accordance with law. That the evidence produced by the petitioners is consistent and confidence inspiring.
7. In rebuttal the learned counsel for the respondent argued that both the Courts below in their concurrent findings have considered the evidence of the petitioners in respect of performance of Talabs in accordance with settled principle. That the petitioners have not proved performance of talabs through cogent, consistent, confidence inspiring and reliable evidence and that both the Courts below have correctly non-suited the petitioners. He placed reliance on 2007 AC 712, 2007 UC 521, 2007 MLD 1554, 2005 SCMR 1231 and 2010 CLC 588 Lahore.
8. According to Section 13 explanation-I of N.W.F.P. (KPK) Pre-emption Act, 1987 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 pre-emption. It is a settled principle of law that in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or the knowledge of the plaintiff in specific that the limitation is computed accordingly. It is important to tell the date, time and place of the performance of Talb-e-Muwathibat in the plaint as well as in evidence so as to prove the immediate exercise of talbs.
9. Thus, it would be essential for pre-emptor to prove correct date and time of knowledge and place of meeting in which he had announced for exercise of right of p e-emption. The performance of Talb-e-lshhad was second talb, fulfilment of which depends upon the presence of Talbe- Muwathibat and unless date and place of making Talb-e- c.
Muwathibat was specifically mentioned in the plaint or proved through evidence, the performance of Talb-e-Ishhad could not be claimed to have been proved in terms of Section 13(3) of Pre- emption Act. Reliance in this respect is made to PLD 2003 SC 315, 2005 SCMR 431 and PLD 2005 SC 977.
10. It is a basic principle in the suit for possession through preemption that the burden to prove the talbs is always on the plaintiff. In the present case in Para. No. 2 of the plaint it is asserted by the petitioners that they came to know about the disputed sale on 08.02.2001 at 9 p.m. In their house through Ijaz Ashraf Kiyani and they immediately declared their intention to pre-empt the disputed sale and in the same meeting they have performed the first Talb-eMuwathibat. Thereafter on 12.02.2001 notice of Talb-eIshhad was sent to respondent through registered AD in the presence of witnesses.
11. To prove the basic and foremost talabs required under the law, the petitioners Fakhar-e-Alam who is also attorney for remaining petitioners/plaintiffs Khalid, Gulfam and Saleem was examined as PW.6. Special powerof-attorney is Ex.PW.6/1. He deposed that he alongwith his brothers, other petitioners/plaintiffs, were present in their house when their brother-in-law. Ijaz Ashraf Kiyani arrived their house and informed about the sale of disputed property and they there and then declared their intention to pre-empt the suit property. In his statement he has not uttered a single word about the date and time of information of sale and their intention to pre-empt the suit property. The other preemptores have not been examined to prove the talb. They have not shown their inability to appear in the Court to substantiate their claim. Though they have authorized Fakhre-Alam to appear in the Court on their behalf and special power-of-attorney Ex.PW.6/1 has been executed but there is nothing in the deed Ex.PW6/1 vide which PW.6 was authorized to give statement in respect of performance of talb on their behalf. This fact is also fatal to the case of petitioners . Reference is made to 2007 SCMR 1344. Jan Alam one of brother of the pre-emptores was examined as PW.8. Though, he is not the pre-emptor but he posed himself as pre-emptor. He too has totally ignored the basic foundation of the pre-emption suit by not disclosing the time and date of making Talb-e-Muwatibat. The relevant portion of his statement is as under:--- {{URDU TEXT}}
12. In cross-examination he admitted: {{URDU TEXT}}
13. Informer Ijaz Ashraf was examined as PW.7,- he deposed that when he informed the plaintiffs regarding the sale of disputed property at that time all plaintiffs were present in the house on 08.02.2001 at 9 hours without specifying whether it was 9 a.m. Or 9 p.m. He stated: {{URDU TEXT}} If this time 9 hours is considered as 9 a.m. Then there will be difference of 12 (twelve) hours in making Talb-eMuwathibat mentioned by plaintiffs in their plaint. Thus he also failed to specifically mention the exact time of information.
14. Keeping in view the above discussion hold_ that both the Courts below have rightly reached to the conclusion that petitioners failed to prove the Talb-eMuwathibat. So far as the notice of Talb-e- lshhad is concerned; like Talb-e-Muwathibat, PWs had not mentioned the date of scribing the notice of Talb-e-Ishhad. They have simply stated that after the lapse of four days of Talb- eMuwathibat, the notice of Talb-e-Ishhad was sent to defendant. As noted above when the date of Talb-eMuwathibat has not been proved therefore, the four days after Talb-e-Muwathibat could not be established as the exact date of Talb-e-lshhad and due to this default on the part of plaintiffs the limitation period for notice Talb-e-Ishhad could not be ascertained. Apart from it, respondent also refused to receive the notice. It was the duty of the petitioners to prove the receipt of notice by the respondent. Reference in this respect is made to 2007 SCMR 1105 wherein it is held: "In terms of Art. 129 of Qanun-e-Shahadat, 1984, read with Section 27 of General Clauses Act, 1897, a presumption of service does arise if a notice sent through registered cover acknowledgment due is received back with endorsement of "refused" by postal authorities---If addressee appears in Court and makes a statement on oath disowning receipt of notice, presumption under the provision of Art. 129 of Qanun-e-Shahadat, 1984, stands rebutted and onus is on the part which is relying on such endorsement to prove the same by producing postman who made the endorsement--Onus to prove service of notice continues to be on the party relying on such notice unless there is other evidence to indicate that denial of service by addressee is against the record."
Reference is also made Khair Muhammad v. Akhtar Hussain 1983 CLC 302, Bashir Ahmed v. Mumtaz Khan PLD 1965 Lah. 126, Nazir-ud-Din v. Muhammad All 1980 CLC 203; Pridino v. Khurshid Begum 1989 SCMR 880; Gulzar Begum v. Mst. Sairah Bibi 1972 SCMR 251; Anil Kumar v. Nanak Chandra Verma AIR 1990 SC 1215; Tekchand Devidas v. Gulab Gui Sher 2000 CLC 409; Muhammad- Rafiq v. Ghulam Murtaza 1998 MLD 292; Qaiser Zamani v. Rahseeda Begum 1985 CLC 596 and Amroz Khan v. Arbab Muhammad Ghalib PLD 1980 Pesh. 163.
15. Petitioners have produced the photo-copy of notice of Talb-e-Ishhad without obtaining the permission of Court to produce secondary evidence which is also fatal to the case of plaintiffs.
Reference is made to 2007 MLD 1554. AD Card is also not available on case file. The service of notice of Talb-i-Ishhad upon the vendee was not proved. The petitioners have produced Zahid Mehmood Postman as PW.1 but he has not uttered a single word that through his or through some other postman notice was served upon vendee. In cross-examination he admitted that: {{URDU TEXT}} Reference is made to 2010 SCJ 643.
From the perusal of notice Ex.PW.5/1 it reveals that the marginal witnesses of the notice are PW.7 and PW.8, P.W.7 has not uttered a single word that after preparation of notice it was sent to the defendant. In his cross-examination he admitted that he has no knowledge about the contents of the notice. {{URDU TEXT}} When a marginal witness of a document has no knowledge of the contents of the documents, the evidence for proving the same documents is not sufficient. Thus it has not been proved that written notice was dispatched and. Received by defendant.
16. Keeping in view the above facts and circumstances I am fortified in my view confirming myself to the judgment of the Hon'ble Supreme Court in case PLD 2003 SC 315. In the above case their lordship has observed the following: "(12) Moreover, the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre-emption. The law as well as the fact is that the very right of pre-emption is not activated unless Talbi-Muwathibat is performed. It should not be dubbed as a mere technicality at times, it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of pre-emption. The law might exist but is useless unless the former is performed. Had Talb-iMuwathibat been a mere technicality, this Court is in Kamal Shah's case (PLD 1986 SC 360) would never have gone to the extent of saying that Talb- iMuwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provision qua Talb-i-Muwathibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of pre- emptor in the country were non-suited because of non-assertion and performance of Talb-i- Muwathibat though not required by the then prevailing pre-emption laws in the country. What we want to emphasize is that Talb-i-Muwathibat should not be taken lightly and should not be considered as a mere technicality. Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of right of pre-emption."
17. Thus, this Court considers that the petitioners had not fulfilled the requirement of Section 13 of N.W.F.P Pre-emption Act, 1987 in proving the essential demands to exercise their right of pre- emption over the dispute( property. Hence, the concurrent findings of both the Court: below are based on correct and legal appreciation o evidence and the law qua "performance of talabs" and no misreading or non-reading or wrong evaluation of material facts has been committed by them in this regard.
18. Accordingly, for the reasons stated hereinabove, this revision petition being devoid of merit is dismissed.
No order as to costs.
Civil revision .