1. ABDUL LATIF KHAN, J.--- Through the instant revision petition, the petitioners have called in question the judgment and decree dated 16-4-2009 passed by learned Additional District Judge- III, D.I. Khan whereby the appeal filed by respondent No.1 was accepted, the judgment and decree dated 27-11-2006 of learned Civil Judge-I, D.I. Khan was set aside and pre-emption suit of respondent No.1/plaintiff was decreed in his favour.
2. 2.Facts giving rise to the instant revision petition are that respondent No.1/plaintiff filed a suit against the petitioners and pro forma respondents/defendants for possession through pre- emption in respect of suit House bearing No.C/580, fully detailed in the heading of the plaint. It was alleged in the plaint that the suit house was purchased vide sale-deed dated 12-11-2001 for sale consideration of Rs.3,10,000/- but in order to defeat the right of pre-emption of the respondent/plaintiff, sale consideration of Rs.6,52,867/- was entered in the sale-deed. It was further averred that the respondent/plaintiff came to know about the suit transaction on 2-1-2002 at 2 p.m. through Abdul Qayyum and there and then declared his intention to pre-empt the suit house followed by notice Talb-e-Ishhad mailed on 11-1-2002.
3. 3.The suit was contested by the petitioners/defendants by submitting their written statement. The learned trial Court framed issues out of the pleadings of the parties. The parties produced their respective evidence as they wished to adduce and after hearing the arguments of learned counsel for the parties, the learned Civil Judge-I, D.I. Khan dismissed the suit of respondent/plaintiff vide judgment and decree dated 27-11-2006.
4. 4.Aggrieved of the judgment and decree dated 27-11-2006, the respondent/plaintiff preferred an appeal which was accepted by learned Additional District Judge-III, D.I. Khan vide judgment and decree dated 16-4-2009, the judgment and decree dated 27-11-2006 of the trial Court was set aside and suit of the respondent/plaintiff was decreed in his favour, hence the instant revision petition.
5. 5.Learned counsel for the petitioners contended that the respondent/plaintiff had filed the suit for pre-emption on 14-1-2002 against an agreement to sell executed by the vendor in favour of the petitioners/defendants. He added that the vendor has not been arrayed as party to the lis. He contended that possession was allegedly delivered on 2-1-2002. He argued that the share of major owners amounting to 78/190 has been sold through agreement to sell whereas the remaining shares pertaining to the minors cannot be sold which were later on alienated through registered sale-deed during the pendency of suit, against which no talbs were performed by the respondent/plaintiff, as such the suit comes within the definition of partial pre-emption. There are numerous contradictions, grave in nature, which make the case of respondent/ plaintiff bad in law, liable to be dismissed. He argued that the informer has not supported the version of respondent/plaintiff in particular about scribing of notice and purchase of property by a person namely, Muhammad Shafi, who happens to be the father of vendees whereas the respondent/plaintiff has deposed that the property hap been purchased by the petitioners/defendants. It was further argued that the witnesses are not truthful because their statements are contradictory to each other. He argued that the original notice was not produced nor the permission to produce secondary evidence has been obtained from the Court. He argued that the petitioners/defendants have denied the receipt of notices and in such eventuality, the respondent/plaintiff was required to produce postman because A/D cards were also not available on file and failure of delivery of notices Talb-e-Ishhad upon the vendees, is fatal for the respondent/ plaintiff and has to be non-suited. He contended that the appellate Court has wrongly decreed the suit of respondent/plaintiff without proper evaluation of evidence.
6. 6.Conversely, learned counsel for the respondent/plaintiff contended that the parties are bound by their pleadings and the arguments advanced before this Court by counsel for the petitioners never remained their case, as the pleadings are silent in this respect. He contended that the contradictions pointed out by the petitioners are not of grave nature. In fact there are no contradictions and those pointed out, are of petty nature, not fatal to the case. He argued that the respondent/plaintiff has successfully proved the case and trial Court had wrongly appreciated the evidence. He vehemently stressed that the suit of the respondent/plaintiff was not partial, as the agreement to sell does contain the entire property/house and no share has been given in the agreement, rather the entire property/house has been sold which has been pre-empted in toto and the suit has been rightly decreed in favour of the respondent/plaintiff by the appellate Court.
7. He contended that the respondent/plaintiff was obliged to file the suit for pre-emption in respect of the agreement, whether the same was oral or effected through mutation or sale-deed. He referred to the written statement filed by the petitioners/defendants and the statement of D.W.-1, wherein he has admitted the sale in toto in lieu of Rs.6,52,867/-. He contended that during the pendency of suit, the property has been transferred through registered sale-deed in respect of suit property and as such the agreement to sell has been culminated into registered sale-deed. He supported the judgment of the appellate Court and prayed for the dismissal of revision petition.
8. 7.I gave my anxious consideration to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
9. 8.The perusal of the record reveals that an agreement to sell was executed in favour of the petitioners by the vendor on 12-11-2001 in respect of the suit property. Admittedly some of the vendors were minors at the time of execution of deed and their shares were also included in the deed by their brother and other relatives and the respondent/plaintiff, on acquiring knowledge, pre-empted the transaction in toto, made vide registered deed.
10. 9.Section 11 of the Contract Act, 1872 is reproduced below for ready reference:--- "Who are competent to contract.--- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualifiedfromcontractingbyanylawtowhichheissubject."
11. The minors were not competent to enter into contract before attaining. the age of majority and are disqualified from entering into any contract. The relatives were not competent to enter into an agreement to sell on their behalf, therefore, the agreement executed between vendor and vendees (petitioners-defendants) would not be valid in the light of referred provision of law to the extent of share of minors which amounts to 42/120 shares, however, those who were major at that time and validly sold the suit property to the extent of their share. Though during the pendency of suit on 20- 5-2010, registered sale-deed was executed on behalf of all including minors in favour of the vendees but admittedly the same has not been questioned nor Talbs were performed against that by the respondent/plaintiff. In such scenario, the suit of the respondent/plaintiff cannot be considered nor maintainable to the extent of shares of minors, as there was no sale in the eye of law in favour of the vendees and as such the prospective pre-emptor cannot claim beyond the share sold in favour of vendees.
12. 10.The petitioners/defendants agitated that no suit for pre-emption can be filed against an agreement to sell because it is not a permanent sale as defined in section 2(d) of the N.-W.F.P. Pre- emption Act, 1987. The expression "sale" means transfer of ownership of an immovable property for valuable consideration, irrespective of the fact whether mutation or registered deed is attested to this effect or not because sale can be effected orally and mere non-attestation of an instrument does not take out the transaction from the ambit of sale.
13. 11.Honourable Supreme Court of Pakistan in Muhammad Nazeef Khan's case (2012 SCM R 235) observed that sale under section 2(d) of the N.-W.F.P. Pre-emption Act, 1987 read with section 45 of the West Pakistan Land Revenue Act (XVII of 1967) would not depend upon the attestation of mutation and the same can be completed earlier and attestation of mutation would be merely its manifestation. It was also observed that for the purpose of exercise of right of pre-emption, the definition of sale could be relevant only when the controversy arise as to whether the property was sold or not. Section 2(d) might not be relevant inthecontextinwhichtheword"sale"insection13(3)ofthe N.-W.F.P. Pre-emption Act, 1987 has been used. The pre-emptor is supposed to make demand in the same sitting or Majlis where he came to know about the sale and has not been permitted by law to postpone making of Talb-e-Muwathibat or to make further inquiry as to whether thesalewascompleteinallrespectsorotherwise.Saleunder section 2(d) and section 13 (3) of the Act has been dealt with in different context and in case of delay in making Talb-e-Muwathibat by the prospective pre-emptor to see and wait till the attestation of mutation, would result into dismissal of his suit. In such scenario, the plea of the petitioners/defendants that no suit for pre-emption can be filed against an agreement to sell does not carry any support from any provision of law, for the reason that even oral transaction can be made basis by the prospective pre-emptor for filing a suit for pre-emption with special reference to the wordings used by the legislature in section 13(3) of the N.-W.F.P. Pre-emption Act, 1987, and pre-emptor had no option but to make immediate demand on acquiring knowledge of sale. Expression "sale" given in section 13(3) of the Act ibid has not subjected the same to the attestation of any instrument nor excluded the oral sale or effected through unregistered agreement to sell from the ambit of sale. The non-attestation of sale mutation or registration of deed would have no effect upon the transaction entered into in respect of immovable property in lieu of sale consideration. Latter attestation of the instrument or for that matter the cancellation of the same would not in any way defeat the right of the pre-emptor as cause of action to exercise right accrued in his favour, the moment the transaction took place.
14. 12.The petitioners/defendants have denied the delivery of notice of Talb-e-Ishhad. The perusal of the record shows that A/D cards are not available on file. To prove the delivery of notice, postman was required to be produced but in the instant case, postman has not been produced and in the absence of A/D cards, the service of notices Talb-e-Ishhad upon the vendees stands disproved, which is fatal to the case of the respondent/plaintiff. Reliance in this respect is placed on the case of BashirAhmad'scase(2011SCMR762)whereinitwasobserved that:--- "that no notice was sent to him. Under the circumstances, it was incumbent upon the respondent being the plaintiff, to prove service of notice upon the petitioner/defendant, moreso, when there was no acknowledgment of the said notice available on record. It is true that the respondent through production of witnesses amply proved that notice of Talb-e-Ishhad was sent to the petitioner, but it is equally true that it was not proved on record that in fact the same was served upon the former, inasmuch as, it was not brought on record that he refused to accept/receive the notice. Under the circumstances, it was the duty of the respondent to have at least produced the Postman, through whom notice was allegedly got served upon the petitioner, to prove that notice was actually sent to him at the right address and he received or refused to receive the said notice."
15. In Amir Muhammad's case (PLD 2011 Peshawar 116), this court held that A.D. card, if not available or produced on file, then examination of postman as witness in support of service of such notice would become necessary, failing which, presumption would be that no notice was received by the defendant.
16. 13.So far as the performance of Talb-e-Muwathibat is concerned, the same also suffers from material contradictions as rightly pointed out by the learned trial Court in the judgment and the learned appellateCourt has wrongly observed otherwise, considering the same to be of no worth.
17. 14.The shares of the minor defendants to the extent of 42/120 were to be excluded from the disputed property, as legally there is no suit for pre-emption against those shares and they have acquired the right of ownership by dint of registered sale-deed attested on 20-5-2002, which has not been questioned by the pre-emptor. A right has been accrued in favour of minor defendants and by dint of registered deed, they became co-owners in the suit property, whereas the respondent/plaintiff has based his claim on the basis of contiguity and by acquiring rights of ownership in the suit house, superior to the right of respondents/ plaintiff, the vendees became co- sharers in the suit house and can well defend the suit for pre-emption on this score and the respondent/plaintiff can be non-suited having inferior right as compared to the minor defendants.
18. Reliance in this respect is placed on the cases of Mst. Gul Rangeena.v. Khushal Khan (1999 CLC 831) and Muhammad Iqbal v. Muhammad Gul (2010 CLC 1035).
19. 15.The respondent/plaintiff has though assailed the agreement to sell in toto but the sale being violative of law, as held above, can be considered only to the extent of 78/142 shares and later on when sale-deed was registered, no effort was made by the respondent/plaintiff to make talbs in respect of the transaction in favour of minor defendants and as such the suit of the respondent/plaintiff falls within the ambit of partial pre-emption which is not permissible under the law and this aspect of the case is also fatal to the suit of the respondent/plaintiff.
20. 16.For the reasons mentioned above, this revision petition is accepted, the impugned judgment and decree dated 16-4-2009 of the appellateCourtissetasideandthejudgmentanddecreedated27-11- 2006 of learned Civil Judge-I, D.I. Khan is restored with 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.