MUHAMMAD YOUNIS THAHEEM, J:- Through this single judgment, this Court shall dispose of two revision petitions, as common questions of law and facts are involved therein, AND, that both the petitions arise out of a single judgment dated 29.03.2012 passed in Civl Appeal No.166/13 of 2011 by Additional District Judge-III, Bannu. The particulars of the said petitions are as follows: i. Falak Niaz Vs. Amal Din and another (CR No.120-B/2012) ii. Amal Din and another Vs. FalakNiaz. (CR No.188-B/2012)
2. The brief and essential facts leading to the present petitions are that Falak Niaz, the present petitioner instituted suit No.171/1 of 2009 on 31.07.2009 for possession of suit land by exercising his right of preemption in respect of suit property fully described in the heading of the plaint, situated in 'Mauza Shahbaz Azmat Khail, Tehsil and District Bannu, which has been transferred in favour of the respondents/ vendees Amal Din and Ilam Din sons of Moinud-Din (herein after called as respondents) vide mutations Nos.498 and 1780 attested on 24.06.2009 on judicial file marked as EX.PW3/1. The petitioner has also prayed for permanent injunction restraining the respondents from further alienation of the disputed property and construction thereon. The petitioner has claimed superior right of pre-emption on the basis of co-sharership, contiguity and participation in ammunities and appendages.
It was further averred in the plaint that the petitioner has acquired knowledge of the impugned transactions on 14.07.2009, Tuesday at 2.00 PM at his 'Chowk' situated at Kotka Akhundan, through his other son, Muhammad Tariq Khan, resident of Shahbaz Azmat Khail, District Bannu in presence of his son Misal Khan, resident of the same Kotka Akhundan, he immediately performed 'Talb-i- Muwathibat' by declaring his intention to pre-empt the sale transaction (Elan-e-shufa) in their presence.
Petitioner/ pre-emptor as per plaint sent notice of 'Talb-i-Ishhad' to the respondents/vendees on 29.07.2009 through registered post along with AD.
3. The respondents contested the suit by filing their written statement. Based on the contesting pleadings of the parties, the trial Court framed the following eight issues:- "1. Whether the plaintiff has cause of action?
2. Whether the plaintiff has come to the Court with clean hands?
3. Whether the suit is not maintainable to its present form?
4. Whether the plaintiff has the superior right of pre-emption?
S. Whether the plaintiff has performed talabs in accordance with law?
6. Whether the market value of suit property is Rs.33000/-? If not, what is the market value?
7. Whether the plaintiff is entitled to the decree as prayed for?
8. Relief?"
4. The parties produced their respective evidence and after hearing both the learned counsel for the parties, the learned Civil Judge-IX, Bannu decreed the suit of the petitioner vide judgment and decree dated 26.07.2011.
Aggrieved therefrom, the present respondents challenged the said judgment and decree of the learned trial Court in Appeal No.166/13 of 2011 filed on 06.09.2011 and same was entrusted for adjudication to the learned Additional District Judge-III, Bannu and the same learned Appellate Court, while allowing the appeal of the respondents, non-suited the present petitioner/pre-emptor on the ground of non-performance of 'Talb-i-Ishhad' due to want of proof and dismissed the suit of the petitioner vide judgment and decree dated 29.03.2012. Hence, the petitioner impugned the judgment and decree of the learned Appellate Court below by filing CR No.120-B/2012 and the respondents (vendees) also filed revision Petition No.188-B/2014 against the same judgment assailing the findings regarding 'Talb-i-Muwathibat'.
5. Both the learned counsel addressed their valuable arguments, so those are following: The arguments advanced by learned counsel for petitioner/plaintiff are as under:
(a) The impugned judgment and decree of the learned Additional District Judge-III, Bannu is against law, fact and evidence on record.
(b) The suit of pre-emptor/petitioner was rightly decreed by the leaned trial court of Civil Judge-IX, Bannu after appreciating the evidence in its true perspective according to law, while the impugned judgment and decree of the Appellate Court below is the result of misreading, nonreading of eviedence and misapplication of law laid down by the apex Court.
(c) The petitioner/plaintiff had fulfilled and proved all the required Talabs abundantly and all the witnesses including pre-emptor were unanimous over meeting, sitting, date and time of Talb-i- Muwathibat.
(d) The evidence of PW 6, PW 7, PW 8 and scribe as PW-1, postman as PW-2, about the execution of said notices, its sending and delivery had been proved through reliable evidence. There are no contradictions in the statements of all the above said witnesses.
(e) The sending and delivery of notices of Talab-e-Ishhad to the vendees/defendants/ present respondents Amal Din and Ilam Din had been proved through cogent, believable and confidence inspiring eviedence and if there are some minor lapses, those are due to lapse of time, which is but natural as recording of statements of these witnesses was made after considerable period of two years. PW-2 postman stated that notices were delivered to the vendees at post office.
(f) The non annexing of AD cards with the plaint is not fatal to the case of pre-emptor as its delivery had been proved by the statement of postman, who appeared as PW-2. The judgment of the Appellate Court below with regard to proof of factum of Talab-e-Ishhad is perverse, against law and is at variance, hence
(g) The learned Appellate Court had maintained the findings over the making of first demand i.e. Talb-i-Muwathibat and so the learned Appellate Court below has failed to consider the entire evidence together in its true perspective and is thus in violation of principle of preponderance of evidence, which is applicable to civil cases.
6. The learned counsel for the respondents who are petitioners in C.R No. 188-B titled as "Amal Din and another Vs Falak Niaz" argued that the learned two courts below had non read and misread the evidence regarding proof of Talb-i- Muwathibat. Plaintiff has failed to prove factum of Talb-i- Muwathibat through unimpeachable evidence by advancing following arguments.
(a) The witnesses produced by plaitniff/ preemptor including himself are not truthful and are contradicting each other over time and place.
(b) There are so many contradictions between the statements of all the three PWs namely, Falak Niaz as PW-6, Misal Khan PW7 and Tariq Khan PW-8, while deposing with regard to the Talb-e- Muwathibat.
(c) Plaintiff failed to prove meticulously the factum of all the three Talabs and specially Talb-i- Mawathibat.
(d) Plaintiff remained mum during deposition that he confirmed his intention to exercise his right of pre-emption and the same omission is fatal to the case of Preemptor.The counsel for the vendee relied upon the judgment of apex Court, in case titled "Muhammad Zahid Vs Dr. Muhammad Ali" (2014 PSC 709).
(e) Contradicitons, omissions and variations in the pre-emptor's case are surfacing from the record. The findings of Appellate Court below are based on correct appreciations of evidence to the extent of Talb-i-Ishhad, but the variations, omissions and contradictions in pleadings and proof regarding alleged Talb-iMawathibat were escaped from the judicial scrutiny of the two learned Courts below and presented case law "Allah Ditta through LRs and others Vs Muhammad Anar"
(2013 SCMR 866), "Muhammad Zahid Vs Dr. Muhammad Ali" (2014 PSC 709), "Dr. Nosheen Latif's case (2010 YlS 1911), "Muhammad Hussain Vs.Manzoor Hussain"(2004 SCM R 737), (1996 SCM R 336).
7. Valuable arguments of learned counsel for the parties heard and record of the case thoroughly considered.
8. To elaborate the discussion on the issue in hand, it would be appropriate to reproduce Section 13 of the NWFP Pre-emption Act, 1987, which reads as follows: "13. (1) The right of pre emption of a person shall be extinguished unless such person makes demand of pre-emption in the following order, namely:--
1. talb-i-muwathibat;
2. talb-i-ishhad: and
3. talb-e-khusumat.
Explanation.
1. "Talbi-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. Note.--Any words indicative of intention to exercise the right of pre emption are sufficient.
II. "Talb-i-ishhad" means demand by establishing evidence.
III. "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-i-mawathibat.
(3) Subject to his ability to do So, (1) Where a pre-emptor has made talb-e-muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 34, or knowledge, whichever may be earlier make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confis-ing his intention to exercise the right of pre-emption: Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talbi-ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of talb-imuwathibat 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."
(Emphasis provided)
9. From the perusal of record it appears in Para No. 03 of the plaint that alleged Talab-e-Mawathibat was made by pre-emptor himself at 02:00 PM in his Chowk Kotka Akhundan upon the information of one of his son namely Tariq Khan PW-8. Pre-emptor/ plaintiff deposed as PW-6 and stated in his examination in chief that he made lan-e-shufa at his above said Chowk after getting the information from his son at 02:00 PM in the presence of his another son Misal Khan PW-7 and afterward gone to the suit land and repeated his intention in the presence of PW7 and 8.
10. Pre-emptor as PW-6 further disclosed in cross examination that he sent his two sons who are witnesses also i.e. Tariq (PW-8) and Misal Khan (PW-7) towards vendees/ 1 defendants after visiting the suit land at 02.00 PM.
Again this pre-emptor as PW-6 during cross examination stated that his both witnesses came back to the home at 02:00 P.M. {{URDU TEXT}} PW-7 is Misal Khan who narrates different story in his examination in chief that {{URDU TEXT}} Again this PW-7 in the cross examination stated that after visiting suit land and repeating of elan- e-shufa they came back from the suit land.
11. PW-8 Tariq Khan during examination in chief stated that at 02:00 PM Falak Niaz (pre-emptor) was sitting alongwith Misal Khan at Chowk Kotka Akhundan when he reached there and informed about the sale of suit land to plaintiff, he (pre-emptor) after hearing this they all three went to suit land and roamed there, where at his father made Elan-e-shufa. Relevant portion of examination in chief is as under. {{URDU TEXT}}
12. During corss examination this witness i.e PW-8 (informer) stated that he remained waiting for Datson at Bus stop in Bannu City till 01:30 PM and afterward reached at 02:00 PM to his village. There is noticeable variation in pleadings and proof in the instant case, which is fatal for the case of pre- emptor. Guidance may be derived from the ratio of judgment of apex Court, in case Binyameen and 3 others Vs Ch. Hakim and another (1996 SCM R 336), wherein it has been held that "A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law."
13. According to evidence of Pre-emptor's case all these rituals about talab-e-muwathibat are shown to be performed at one and same time i.e 02.00 P.M, reaching of Tariq from Bannu city to bus stop of his village Shahbaz Azmat Khel at 02.00 P.M, alleged performance of Talab-e- Muwathibat at Chowk of Kotka Akhundan at 02.00 P.M, Visited the suit land and roamed alongwith PW-7 and PW-8 at 02.00PM and after said visitation returned from the suit land to home at 02.00PM. The same reiteration of 2 PM is not believable and the same is material descripensy. The Hon'able Supreme Court, in case titled "Allah Ditta through LRs and others Vs Muhammad Anar" (2013 SCM R 866), it is held that: "We have heard learned counsel for the parties and find vital discrepensy in the statements of PW.1, PW.2, and PW-3, particularly, PW1 and PW-2, stated that the disclosure of the sale of suit land was made to them while the plaintiff was sitting inside the shop of Aziz, whereas the infomer who is the son of the pre-emptor, PW-3, Muhammad Rafique, has contradicted the above and in unequivocal, clear and unambiguous terms stated that they were sitting outside the shop. This was a material discrepancy but the learned Appellate Court had failed to notice the same and it has also been overlooked by the learned Revisional Court." (underlining is mine for emphasis.)
14. All the three PWs Falk Niaz and his two sons are not truthfull witnesses and can not be relied upon. It was the bounden duty of the preemptor to prove the time, place and declaration of his intention (elen-e-shufa) by producing truthful witnesses. The Hon'ble Supreme Court in case "Ghafoor Khan (deeaased) through LRs Vs Israr Ahmad" (2011 SCM R 1545), held that: 20 "Normally, in every legal prioceeding, every witness speaking in support of the party needs to be truthful to place implicit reliance on his testimony.Ion pre-emption case, however, much stress has been laid on truthfulness of the witnesses of Talb-e-Ishhad. Reference is made to the provision of subsection (3) of section 13 of Act ibid reproduced hereinabove. On going through the conflicting statements of pre-emptor and his witness reproduced hereinabove, it become hard to consider them truthful to plae reliance on their testimony in regartd to making of Talab-e-Ishhad."
15. So the findings regarding Talb-i Court are the result of misreading and nonreading of evidence and the learned Appeallate Court below had also over looked this aspect of the case. So the findings of both courts below, regarding talab-i-Mawathibat are perverse and against law. Plaintiff/pre-emptor failed to prove the factom of talb-i-Mawathibat in a manner as alleged in the plaint as earlier discussed it is settled law that variation in pleadings and proof is not permissible under the law. Hence, findings of both the Courts below regarding Talab-e-Muwathibat are set aside. The petitioner/plaintiff has failed to prove factum of Talab-e-Muwathibat.
16. Perusal of the record would reveal that the petitioner in CR No.120-B/2012 has been non-suited by the learned Appellate Court on requirement of law for want of proof regarding delivery of notices of 'Talab-I-Ishhad' to the respondents. In the instant case, the respondents have denied the receipt of notices of 'Talab-i- Ishhad' in their written statement and when Amal Din, respondent appeared before the Court as DW-1 in support of his assertions, he also stated on Oath that no notice in writing was sent by the present petitioner and was not received by them. He further stated that he was at Peshawar in connection with his employment and he was informed by his inmates of the house about the Court case and later on came to know through counsel that preemption suit has been filed against them.
17. The petitioner/plaintiff was under legal 23 strictly in accordance with the provisions of Section 13 of the Act (ibid) because it is settled that if law requires a particular thing to be done in a particular manner, it should be done in the same way, otherwise it would be considered non-compliance of the legislative intent. Although the petitioner has examined Kalim Nawaz Khan, Postman as PW-2 to substantiate the plea of sending of notice of 'Talb-i-Ishhad' but at the same time, the petitioner has failed to produce and exhibit the 'Acknowledgement Due', which was mandatory in view of the provision of Section 13 (ibid). Non- compliance thereof would certainly be fatal to the claim of the petitioner in respect of fulfillment of requirement of law.
18. Moreover, postman appeared as PW-2, who produced the delivery record, which is marked as Ex.PW 2/1 to Ex.PW 2/4. However, the counsel for the vendee defendant raised objection for want of its proof. During cross-examination, this PW-2 admitted that: {{URDU TEXT}} From the said portion of cross-examination, it was proved that registered envelopes were not delivered to the Vendee / defendant in person and there was no cogent proof regarding delivery at the post office, as stated. The same portion of cross examination depicts contradictions as thumb impression is attributed to a person namely 'Sohail' to whom the plaintiff did not bother to produce as his witness. So legally no notices have been served upon the vendee / defendant in person. This Court, in Dr. Nosheen Latif's case (2010 YLR 1190) has observed that:- "I have traced the entire record, but there is nothing to prove that the alleged notice sent through receipt Exh.PW 1/1 was ever served. Normally the practice of the Pakistan Post Office is that when an item is posted to the addressee, an AD card is annexed which after return shows whether the same is served or not. No such evidence is available on record nor produced by the plaintiff that the registered envelope containing the notice was in fact received by the Addressee i.e. petitioner/defendant. The returned AD card is supposed to be in possession of the plaintiff/respondent and he should have produced it in his evidence before the Court. Its non-production in the Court gives rise to a presumption that the 26 same was not returned, meaning thereby that the registered envelope did not reach to the petitioner/ defendant... ........................... .......................................... .........
The above provision reveals that a mechanism for issue of notice has been prescribed. According to this provision the plaintiff is required to make Talb-i-Ishhad by sending a notice in writing under registered cover acknowledgement to the vendee. This mechanism includes two items. First is registered cover and the second is acknowledgement due which is normally called AD."
19. In these circumstances, the statement of the postman would change nothing in respect of the claim of the petitioner- preemptor regarding delivery of notice of 'Talb-i inspiring. In this regard, reference may be made to case titled 'Muhammad Hussain Vs. Manzoor Hussain' (2004 SCM R 737), wherein, the apex Court has held that: "The crucial point in this case is whether the petitioner made compliance in accordance with the dictates of section 13 of the Pre-emption Act, 1991. It is the requirement of law that the evidence in this regard should be unimpeachable and confidence-inspiring."
20. In case titled 'Allah Ditta through L.Rs and others Vs. Muhammad Anar' (2013 SCM R 866), the apex Court has observed that:- "The argument of the respondent's side that that the attorney of the petitioner while appearing as DW-1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two Courts below."
Thus, findings of the learned Appellate Court below, regarding Talab-e-Ishhad by relying on 2010 YLR 1190, is correct and has committed no illegality, hence needs no interference by this Court in its revisional jurisdiction.
21. The findings of impugned judgment of the Appellate Court were restriced to the extent of Talb-e-Ishhad and findings regarding Talb-e-Muwahibat was not given, but here before this Court, petitioners in CR No.188-B of 2012 had challenged the judgment of appellate Court and Trial Court as well, with regard to talab- e-muwathibat and as discussed above, it is held that the plaintiff has also failed to prove factum of Talb-e-Muwathibat.
22. Accordingly, for the reasons stated hereinabove, as plaintiff Falak Niaz has failed to prove talab-e-muwathibat as well as talab-eishhad, hence, the instant CR No.120-B of 2012 is dismissed, whereas CR No.188-B of 2012 is accepted. Resultnatly suit of plai