Saidul Haq, petitioner/defendant in Civil Revision No, 1209/2011 has questioned the judgment and decree dated 24.6.2011 of the learned Additional District Judge, Charsadda, whereby he partially allowed the appeal filed by the respondent, reversed the finding of the trial Court on Issues Nos, 7 and 8 and rest of the judgment and decree dated 29.1.2010 of the learned Civil Judge-II, Tangi was maintained whereas Janis Khan, petitioner/plaintiff in Civil Revision No, 1362/2011 assailed the said judgment and decree of the learned additional District Judge, Charsadda, he while reversing the finding on Issues Nos, 7 and 8 and maintained the rest of the judgment and decree dated 29.1.2010 of the learned Civil Judge-II Tagi. As common questions of law and facts are involved in these revision petitions, they are disposed of by this single judgment.
2. Brief facts of the case are that the plaintiff/respondent brought a pre-emption suit against the petitioner/defendant in the Court of the learned Civil Judge in respect of the property measuring 1 kanal, fully detained in the heading of the plaint, alleging that he is a co-owner, participator in amenity and appendages and owner in contiguity. The suit after contest was dismissed by the learned trial Court, vide judgment and decree dated 29.1.2010 and the appeal there against with some modification in Issues Nos, 7 and 8 also met the same fate having been dismissed by the learned appellate Court, vide judgment and decree dated 24.6.2010. Dissatisfied with the judgment and decree of the learned appellate Court, both the parties have filed the present revision petitions.
3. Learned counsel while appearing on behalf of the petitioners/defendants in C.R. No, 1209/2011 contended that where Muhammad Azam, who appeared as DW-1, supported the factum of exchange, which was for better management of the suit land, the right of the petitioner cannot be pre-empted through a pre-emption suit. He next contended that the judgment and decree of the learned trial Court on the point of exchange being well reasoned and based on appreciation of evidence, cannot be disturbed by the learned appellate Court. The learned counsel while elaborating his arguments contended that the suit of the respondent barred by time, if it is seen in its true perspective, the finding arrived at by the learned appellate Court on this point, is also liable to be set aside. The learned counsel while concluding his arguments contended that the requirements of Talb-e-Muwathibat and Talb-e-Ishhad have not been fulfilled in accordance with the provision of law.
4. Learned counsel appearing on behalf of the petitioner/ plaintiff in C.R. No, 1362/2011 contended that the learned appellate Court has correctly reversed the finding on Issues Nos,7 and 8 but has wrongly maintained the rest of the judgment and decree of the learned trial Court. He next contended that the petitioner has performed all the Talbs within the prescribed manner in accordance with Section 13 of the Act. The learned counsel next contended that where the petitioner has proved his case through cogent and convincing evidence, the finding of the Courts below is liable to be set aside.
5. As against that, the learned counsel appearing on behalf of the vendee/defendant contended that when there is a contradiction between the statements of the plaintiff and the P.Ws. Talb-i- Muwathibat' cannot be said to have been proved in accordance with requirements of law and that this alone would be sufficient to non-suit the respondent. He next contended that when one of the attesting witnesses of the notice admitted that it was not signed by the other witness, while the other stated that it was signed by both, they cannot be said to be truthful, therefore, the suit of the plaintiff was rightly dismissed. Failure on the part of the plaintiff and P.Ws. the learned counsel added, to adopt similarity in the statements in order to prove talbs, would constitute yet another ground for nonsuiting the respondent; that the plaintiff failed to prove the Talb-e-Ishhad through reliable evidence. Notice has not been served on his proper address; that during the relevant days, he was residing in Canada and no notice on his proper address has been sent; that no postman has been produced to prove the service of notice.
6. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.
7. Both the learned counsel focused their submissions on Issue No, 3 as to whether the plaintiff fulfilled the requirement of Section 13 of the N-WFP Pre-emption, Act, 1987. In term of Section 13 of the Preemption 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 the 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-i-Muwathibat;
(b) Talb-i-Ishhad; and
(c) Talb-e-Khusumat. Explanation I. Talb-e-muwathibat means immediate demand by a preemptor, in the sitting or meeting (Majlis) in which h,e has come to know of the sale, declaring his intention to exercise the right of pre-emption.
Note: Any words indicative of intention to exercise the right of pre-emption arc sufficient.
I. Talb-i-Ishhad means demand by establishing evidence.
II. Talb-i-Khusumat means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a preemptor through any source, he shall make Talb-iMuwathibat.
(3) Where a pre-emptor has made Talb-i-Muwathibat under sub section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i- Ishhad 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 pre-emption: 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-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under, sub-section
(2) and Talb-i-Ishhad under sub-section (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.
8. A close reading of the afore referred section would indicate that the requirement of first demand i,e, Talb-e-Muwathibat being immediate is to ensure that the pre-emptor generally and bonafidely wishes to purchase the land sought to be pre-empted. No doubt making of Talb-e-Muwathibat' has been mentioned in the plaint but it has not been proved in accordance with the requirements of law. According to the plaintiff, he got knowledge of the disputed sale from his brother, Muhammad Naeem Khan, in the lower Courts and he in the presence of his brother declared his right of pre-emption but in cross-examination, he stated that at the time of declaration of pre- emption right, he was sitting at his own seat, where he is working as an Advocate. The informer, Muhammad Naeem Khan, who was appeared as P.W.4, stated in his cross-examination that when he came to know that the plaintiff was sitting with Attauullah Khan, Advocate, he went there and informed him about the sale in question. The plaintiff, thus, cannot extricate himself from the consequences of law on any pretext whatever and, as such, it cannot be said that the requirements of Talb-eMuwathibat have been proved. Even otherwise, it was also not proved on the record that notice through registered AD was properly sent to the defendant. The second demand i,e, Talb-e-Ishhad is the only Talb which postulate putting the vendee on notice about the pre-emptor's desire to purchase and the law mandates that it has to be sent through registered acknowledgment due. The requirement of sending a notice in writing is followed by a rider i,e, registered cover acknowledgment due. This signifies that the intention of law is not merely formal notice on the part of pre-emptor conveying intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. In the present case, the defendant/petitioner denied the receipt of notice and that it has not been issued on his proper address. It was the duty of the plaintiff to prove this Talb through authentic evidence in the shape of postman who executed the notice but no post man has been examined. Reference is made to 2011 CLC Peshawar 899, where it has been held "Denial of vendee to have received such notice-- failure of pre-emptor to examine postman--Effect--Burden in case of such denial shifted to pre- emptor to prove service of such notice upon vendee. Pre-emptor had failed to produce postman to prove due service of such notice--suit was dismissed in circumstances".
9. Plaintiff/petitioner also failed to seek prior permission of the Court to prove Talb-e-Ishhad through secondary evidence. Contradictions in the statements of the P.Ws., as highlighted by the learned counsel for the petitioner, also go along way to prove that even Talb-i-Ishhad' was not proved on the record in accordance with the requirements of Section 13 of the N.-W.F.P. Pre- emption Act, 1987. Such discrepancies in other cases may not have been significant but in a proceeding for pre-emption, which by its very nature is piratical, they are significant and as such, cannot be ignored and overlooked so conveniently. Both the Courts below after taking stock of the entire material on the record have rightly non-suited the petitioner. When this being the state of evidence, I do not think, the learned appellate Court committed any error muchless jurisdictional by non-suiting the petitioner.
10.The other question for determination is that whether suit mutation is a sale or the defendant had purchased the suit land from the vendor Muhammad Azam through exchange. Plaintiff has contended that it is a sale and defendant purchased it for consideration of Rs, 30,000/- but with intent to defeat his right of pre-emption, defendant had shown the sale transaction as exchange.
The defendant by submitting his written statement denied the allegation of plaintiff and contended that petitioner/defendant initially purchased the suit land from Muhammad Azam through unregistered deed dated 15.9.1991 and possession of the suit land was also delivered to him; that vendor attested mutation in favour of the petitioner/defendant in another khata as the vendor was only in possession of the suit land but was not owner. That after some time, the vendor became owner of the suit katha by virtue of Mutation No, 6582 and thereafter both the parties agreed to exchange their properties for the purpose of better management and C resultantly, the petitioner transferred one kanal of land in favour of his vendor through exchange Mutation No, 6705 while corresponding Mutation No, 6704 was attested in favour of petitioner on 8.6.2005. Both these mutations are incorporated in subsequent jamabandi and are intact till date. Patwari Halqa was examined as PW1. He produced different revenue record. He also produced Mutation No, 6704 and stated that through Mutation No, 6704 one kanal area has been shown as exchange in the name of defendant from Muhammad Azam and similarly through Mutation No, 6705 one kanal area has been shown as exchange from Saidul Haq in favour of Muhammad Azam. He further stated that Muhammad Azam has sold one kanal area in favour of -defendant through Mutation No, 5730 in sale consideration of Rs, 50,000/- the reference of which is given in Ex.PW1/8. During cross- examination, he produced both the exchange Mutations Nos, 6704, 6705 Ex. PW1/D1 and Ex.PW1/D2.
Though the 'earned defence counsel raised an objection that both mutations are in fact sale mutations and not exchange mutation but to frustrate the right of petitioner/plaintiff for pre- emption has been shown to be exchange mutation. But he has not produced any cogent evidence to prove that Mutations Nos, 6704 and 6705 attested on 8.5.2006 are not exchange but actually these are sale mutations. Rather the Patwari admitted that these mutations have correctly been incorporated in subsequent jamabinids and are intact. While in defence the defendant/petitioner has produced Muhammad Azam who was examined as DW1. He reiterated the same facts which were narrated by the defendant in his written statement and stated "I entered exchange mutation with defendant. I was given property by way of Mutation No, 6705 Ex, PW1/D2 while attested the corresponding Mutation No, 6704 Ex.PW1/D1 in favour of defendant." He was cross-examined in detail but nothing material was extracted from his mouth to the effect that mutation is sale and not exchange. Ikramul Haq, attorney for the defendant also supported the case of DW1 and the plaintiff could not rebut his contention.
11. For what has been discussed above, I am of the view that the finding of the trial Court on Issue No, 8 is based on proper appreciation of evidence while the finding of appellate Court is based on non-reading and misreading of evidence and is not maintainable. Thus the finding of the appellate Court on Issue No, 8 is set aside and maintained the finding of the trial Court. However, the finding of the appellate Court on Issue No, 7 including the concurrent finding arrived at by both the Courts below on Issue No, 3 are correct and need no interference. This revision petition is partially allowed while the connected revision petition No, 1362 of 2011 is dismissed.