' MRS. IRSHAD QAISER, J.---This revision petition is directed against the judgment and decree dated 19-6-2007 passed by the Additional District Judge-I, Haripur, whereby, appeal filed by the present respondent against the judgment and decree dated 28-9-2005 of Civil Judge-VIII, Haripur was accepted and suit of the respondent was decreed.
2. The brief and essential facts leading to the present petition are that the present respondent instituted a suit on 6-4-2002 for possession exercising her right of pre-emption in respect of property comprised in 'Plot' No,136 measuring 1 'kanal' situated in Sector No,1 Khalabat Township, Tehsil and District Haripur surrounded by; towards East house of Amanat Shah, towards West plot of Mst. Tameela Bibi respondent, towards North house of Chan Muhammad alias Manna Kaka and towards South road or whatever area was found to have been transferred in favour of the petitioner through registered sale deed No,367 dated 7-3-2002, on payment of Rs,400,000, on the basis of contiguity.
' It was alleged in the plaint that the respondent came to know about the disputed sale on 26-3- 2002 in the morning at 10.00 AM in her house at Sector No,II Khalabat Township through Abdul Wahid son of Azeem Khan, resident of Sector No,I, KTS and she at the same time and place in presence of Abdul Wahid, informer declared her intention to pre-empt the disputed sale.
Thereafter, on same date i,e, 26-3-2002 she sent notice of 'Talb-i-Ishhad' through registered AD in presence of witnesses.
3. The suit of the respondent was contested by the petitioner by filing written statement. Based on the contesting pleadings of the parties, the trial Court framed the following nine issues:--
(1) Whether the plaintiff has got a cause of action? OPP
(2) Whether the plaintiff is estopped to sue? OPD
(3) Whether the suit is within time? OPD
(4) Whether the plaintiff has waived his right of pre-emption? OPD
(5) Whether the requirements of Talbs have been fulfilled? OPP
(6) Whether the sale consideration has actually and bona fide been fixed and paid, if not so, what is market value? OPP
(7) Whether the plaintiff has got a superior right of pre-emption? OPP
(8) Whether the plaintiff is entitled to decree as prayed for? OPP
(9) Relief?
4. The parties produced their evidence and after hearing learned counsel for the parties, the learned trial Court dismissed the suit of the respondent. Aggrieved thereof, the present respondent impugned the same in appeal, which was accepted by the learned appellate Court and the suit of the respondent was decreed in her favour. Hence, this revision.
5. The learned counsel for the petitioner vehemently argued that the Appellant Court has failed to appreciate the evidence of the respondent qua performance of 'Talb-i-Muwathibat', in its correct legal perspective in accordance with the settled principles; that the respondent has failed to prove performance of 'Talb-i-Muwathibat' and the appellate Court has drawn wrong inferences from the evidence produced by the respondent; that the evidence produced by the respondent was inconsistent, contradictory and was not confidence inspiring; and that the learned Appellate Court has wrongly and illegally decreed the suit of the respondent by holding that the requirements of law to prove 'Talb-iMuwatibat' were fulfilled by the respondent. Learned counsel for the petitioner placed reliance on Ali Anjam Shah v. Sar Anjam (1997 MLD 3000), Mst. Imtiaz Beaum and others v.
Mst. Sultan Jan (2008 SCMR 1268), Mst. Saleem Akhtar v. Chaudhry Shauk Ahmad (2009 SCMR 673), Sher Ghulam v. Ghulam Jan and another 2012 CLC 334, Abdul Rehman v. Haji Ghazan Khan (2007 SCMR 1491), Amin ud Din v. Mst. Zarina (2003 CLC 1775), Abdur Rehman v. Sher Wadood and others (2001 CLC 1922), Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315), Muhammad Akram v.
Mst. Zainab Bibi (2007 SCMR 1086), Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977), Muhammad Subhan and others v. Mir Qadam Khan and others (2001 MLD 1716), Muhammad Mal Khan v. Allah Yar Khan (2002 SCMR 235) Muhammad Anwar Khan Kundi v. Abdur Rehman and another (2006 CLC 604), Akhtar Ali v. Muhammad Anwar and others (PLD 2010 Peshawar 65), and Ghulam. Yousuf v. Ghulam Rasool (2006 CLC 674).
' In rebuttal, the learned counsel for the respondent argued that the Appellate Court has considered the evidence of the petitioner in respect of performance of 'Talb-i-Muwathibat', in accordance with the settled principles; that the respondent has proved performance of 'Talb- iMuwathibat' through cogent, consistent, corroborative and reliable evidence; and that Appellate Court has correctly decreed the suit of the respondent. Learned counsel for the respondent placed reliance on Mushtaq Ahmad and others v. Muhammad Saeed and others (2004 SCMR 530), Haji Din Muhammad v. Mst. Hajra Bibi and others (PLD 2002 Peshawar 21), Yar Muhammad Khan v.
Bashir Ahmad (PLD 2003 Peshawar 179), Ghulam Sarwar v. Saleh Muhammad (PLD 2006 Peshawar 58), Liaquat Ali v. Muhammad Saeed (2009 MLD 1391), and Wali Dad v. Gul Bab Khan (2005 MLD 1668).
6. Arguments of the learned counsel for the parties heard and the available record of the case perused.
7. The crucial issue in the case in hand relates to performance of 'Talb-i-Muwathibat' by the respondent. The respondent asserted in the plaint that on 26-3-2002 at 10.00 a.m. While she was present in her house at Sector No,II Khalabat Township, when Abdul Wahid son of Azeem Khan, resident of Sector No,I, KTS Haripur informed her about the disputed sale and she at the same time and place in presence of Abdul Wahid, informer made jumping demand. Though respondent Mst.
Tameela Bibi has appeared before the trial Court and recorded her statement as (P.W.5) and reiterated the averments mentioned in the plaint regarding the mode and manner of performance of 'Talb-iMuwathibat, however, she could not produce the star witness Abdul Wahid, who allegedly informed about the disputed sale to the respondent. The respondent while appearing in the trial Court did not utter a single word as to why the informer Abdul Wahid could not be produced. The respondent has specifically mentioned the name of Abdul Wahid as informer of the disputed sale in her plaint as well as in her statement before the learned trial Court. In her cross-examination, she stated;{{URDU TEXT}} The only person in whose presence the respondent declared her intention to pre-empt the sale transaction was necessary to be produced to establish the said right of pre-emption. It has been consistent view of the superior Court that non-production of informer would be fatal to the exercise of right of pre-emption of a person. Reference is made to Aminud-Din's case (2003 CLC Lahore 1775). The solitary statement of the respondent to establish the performance of Talb-i-Muwathibat' in her own favour was not sufficient without independent corroboration. In this regard, the apex Court in Abdul Rehman's case (2007 SCMR 1491) has observed that:- "Burden of proof was on the appellant to prove through satisfactory evidence that first demand was made as prescribed A pre-emptor claiming right of pre-emption, as a matter of prudence, ought to seek corroboration to satisfy reasonably the judicial mind of the Court that Talb-i- Muwathibat was made by him enabling him to make the other, demand (Talb-i-Ishhad). In this case, failure to put the informer in witness-box, seen from that angle as well, raises a logical presumption that appellant feared that the witness, if examined, could not stand the test of cross- examination or that the witness would not support-him or that his evidence would be against him.
In this, we are fortified by case of Muhammad Mall Khan v. Allah Yar Khan 2002 SCMR 235 (supra), in which it is observed that:- "...Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan (informer) from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him..."
8. Record shows that Abdul Wahid is also one of the marginal witnesses of notice 'Talb-i-Ishhad'. In this respect, reference is made to this Court judgment in case titled 'Muhammad Ijaz v. Abdul Hameed' (C.R. No,273/2006) dated 28-2-2011. It is admitted fact that disputed property is situated adjacent to the plot of the respondent. Dr. Zafar Saleem one of the vendor and attorney of other vendors was examined as DW-1. He stated that; {{URDU TEXT}} ' He was was not cross examined by plaintiff-respondent in this respect. Thus, she admitted the contention of DW-1. It means that she was well versed with the sale of the disputed property much prior to 26-3-2002 alleged date of 'Talb-i-Muwathibat. Thus, this Court considers that the respondent had not fulfilled the requirements of section 13 of N.-W.F.P. Pre-emption Act, 1987 in proving the essential demand to exercise her right of pre-emption over the disputed property.
Hence, the findings of the Appellate Court are based on wrong and illegal appreciation of evidence and the law 'qua' performance of 'Talb-i-Muwathibat. l9. Accordingly, for the reasons stated hereinabove, this revision petition is accepted, the impugned judgment and decree of the Appellate Court are set aside while the judgment and decree dated 28-9-2005 passed by learned Civil Judge-VIII, Haripur is maintained.
' No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.