' MUHAMMAD DAUD KHAN, J.---This civil revision is directed against the judgment dated 31.8.2010, passed by learned Additional District Judge-II, Lakki Marwat, whereby the appeal filed by the petitioner/plaintiff against the judgment/decree dated 29.7.2004 recorded by learned Civil Judge- VI, Lakki Marwat was dismissed.
2. Succinct but necessary facts of the instant revision petition are that on the basis of sale mutation No, 221 attested on 14.10.1998 land measuring 27 kanals, 7 Marlas situated in the local limits of Moza Abdul Khel was purchased by respondents/defendants Gul Nawaz, Muhammad Ayub Khan and Mir Abbas vendees/defendants. The sale was pre-empted by Qasim Khan, the petitioner/ pre-emptor claiming his superior right of pre-emption on the basis of co-owner, participator of right attached and adjacent to sold property in consideration as sum of Rs, 3470/- or whatever is fixed by the Court.
3. The plaintiff averred in the plaint that he got knowledge of the alleged sale transaction on 19.10.1998 at 4:00 p.m. In his Baithak situated at Abdul Khel through Hazrat Ali son of Ghazni in presence of Mir Alam son of Qasim Khan. He then and there in presence of said persons made Talab-e-Muwathibat. Later on he sent notice Talab-e-Ish'had to the defendants/vendees through registered' post alongwith AD.
4. When put on notice by the learned Trial Court, respondents/defendants contested the suit, by filing written statement, wherein they controverted the averments of the plaint, specifically denied sending of notice Talab-e-Ish'had and delivery of registered Post AD in compliance with the mandatory provisions of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. On divergent pleadings of the parties issues were framed. Parties adduced pro and contra evidence in support of their respective stance. The learned Trial Court after hearing arguments of learned counsel for the parties dismissed the suit of petitioner/plaintiff vide judgment and decree dated 29.7.2004 mainly on the ground of non-performance of Talabs in accordance with law. Aggrieved from the same the petitioner/plaintiff filed appeal in the Court of learned District Judge Lakki Marwat, which was entrusted to the learned Additional District Judge-II, Lakki Marwat, who vide judgment and decree dated 1.2.2005 allowed the appeal in favour of petitioner/plaintiff to the extent of one-fourth share of the suit property. Dissatisfied the judgment and decree of learned Appellate Court the petitioner/plaintiff filed the revision petition bearing CR No, 138 of 2005 before this Court, which was accepted vide judgment dated 30.6.2010, resultantly, the judgment and decree of learned Appellate Court was set aside and the case was remanded back to the learned Appellate Court with the direction to rehear learned counsel for the parties and rewrite judgment in each appeal separately.
' Learned Additional District Judge-II, Lakki Marwat, in compliance of the observations of this Court, reheard learned counsel for the parties and upheld the judgment and decree of learned Trial Court, vide impugned judgment and decree dated 31.8.2010, meaning thereby that both the subordinate Courts concurred on dismissal of the suit of the petitioner/plaintiff. Hence, the instant revision petition.
5. I have considered submissions of learned counsel for the parties, gone through the record appended with the petition.
6. Perusal of the plaint divulges that, the petitioner/pre-emptor alleged in the plaint that on 19.10.1998 at 4:u0 p.m., he alongwith Mir Alam were present in his Baithak, when in the meanwhile, Hazrat Ali, their co-villager, eat to there and informed him about the attestation of the impugned mutation and hence he (plaintiff/pre-emptor) there and then declared his intention to pre-empt the suit land. Later on, he sent notice Talab-c-Ish'had the respondent/defendants through registered Post alongwith AD. But the petitioner did not mention the date of demand through notice Talb-e-Ish'had in the plaint. By now it is settled law that the date, time and place of making immediate demand as well as the date of demand through notice of Talb-e-Ish'had are mandatory requirements to be mentioned in the plaint and on of these particulars would he fatal for the suit of pre-emption. In view of judgment of larger bench, titled "Mian Pir Muhammad dnd others v. Faqir Muhammad through L.Rs, (PLD 2007 SC 302), and "Mst.. Bashiran Begum v. Nuzar Hussain and another" (PLD 2008 Supreme Court 559) it is held that:- "This Court has approved the view th4t a plaint wherein date, place and time of making of Talb-e- Muwathibat and date of issuing notice of Talb-e- {{BLUR PAGE}} Ratio of the above dictum also folloWedan the recFntjudgment
1. (1:4 etivi -;,.% 1,1 n2AK,10 /1,1 saittE rruil by the flon'ble Supreme Court in case titr tazal-ur- Rehman v. Khurshid Ali and another (U12 S 635) and ? ? i.---1 "Muhammad Ismail h' V. Mu amma ousa Ratio of the above dictum also folloWedan the recFntjudgment
1. (1:4 etivi -;,.% 1,1 n2AK,10 /1,1 saittE rruil by the flon'ble Supreme Court in case titr tazal-ur- Rehman v. Khurshid Ali and another (U12 S 635) and ? ? i.---1 "Muhammad Ismail h' V. Mu amma ousa #TBS suit. r )bes1 INCILICab 1c)Tasvki,k'111\
7. The averment of sending notice talan-e-isnnao. Was categorically denied by the respondents/defendants in their #TBE #TBS 'pr=ovided, be blittril fetblitie5114e-ettptrieNi #TBE #TBS date place and''''ilirieb #TBE #TBS for getting a decree in a pre;ethRitlihr,RI#J,,,,,TN Court has approved the view that a plaint wherein #TBE #TBS 'J-(43,161 1, ion gtttbirp po !)sf.:, 'loft, Performance of bogifithessMaihjs,11.Kliffigep) #TBE #TBS in the latter case, it is held that:- #TBE #TBS . f, 3 fiiisT :)*Ji.1011 ,Liflibfltl? 10 .'..)31A) jf #TBE #TBS Sahib .431Pak and Pt#RIJ e(PAAPACtn1FArr According to the dictum laid down by the larger " bench of this tOurt t oi albs tic &h al with requisite' `details in the Otani- al's &hal even in the pending caseil" timrvitoe 'AI 1411i1Y1041E, #TBE #TBS 1r6up P3 411) -fi'94c# Sul? Dgifl fiNaraif4tficr4,Nritf41 #TBE #TBS through, Legal Heirs. And cinotifeit7(01.01:4 Kok and has apprqved the view,gwessgi,infthmisksg Hqii,X4ifalli ad .,4424e1?;,1V1JCIY10(64#44 0144, #TBE #TBS frivigur. From the icasesrbe'llajlnfrionrciMuhammadlnk,AbeitiLl sand,,,Z,49thers,,.,42000 SOVIRe-)329)rii Altai) Hussain v. Abdul Hatneed alias7AW Aajec4 #TBE #TBS `The HonShle Bench, of Ifivei Judges, has dissented!.1" #TBE #TBS Qasim Khan v: Gall*Tawai'
Muhammad Daud Khaii\WA(fignity)1, Ish'had in terms of sectidn'41'tOr 'the ACt is3140ti` provided,, it would be fault for the pre-eMption suit. f #TBE #TBS XXXVII National Law Reporter)(NLR'1014 Revenue) 29 #TBE {{BLUR PAGE}} written statement as well as statement on oath. In such a situation, it was incumbent upon the plaintiff to produce postman to prove service/delivery of notice Talb-e-Ish'had in compliance with the principle set by the Hon'ble Supreme Court in cases titled "Muhammad Bashir and others v.
Abbas Ali Shah" (2007 SCM R 1105), "Basheer Ahmed v. Ghulam Rasool" (2011 SCM R 762) and "Allah Ditta. Through L.Rs, and others v. Muhammad Anar" (2013 SCM R 866). But he neither produced the scribe of notice nor postman of the area to prove delivery of notice Talab-e-Ish'had. Consequently, performance of Talb-e-Ishhad is not proved.
8. Perusal of the evidence divulges that plaintiff was examined as PW-3, he in his statement stated that on the third day he sent notice Talab-e-Ish'had, meaning thereby that according to the statement of plaintiff notice Talab-e-Ish'had was sent on 21.10.1998, whereas in contrary to that PW- 4 Mir Alam stated that notice was posted on 24.10.1998. While Hazrat Ali recorded his statement as PW-5, he did not mention the date of sending notice Talab-e-Ish'had. Hence, on the point of sending notice Talab-e-Ish'had all the PWs are contradictory to each other and seems not to be truthful and trustworthy witnesses.
9. From the above discussed evidence one could reach to an irresistible conclusion that on one hand the pre-emptor has failed to comply with the mandatory provisions of talabs and on the other hand truthfulness of PWs is also becomes doubtful. Wisdom is derived from a case-law "Muhammad Nazeer Khan v. Gulabat Khan and others" (2012 SCM R 235).
10. It needs no emphasis that for successful exercise of right of pre-emption, the proof of superior right of preemption, performance of Talb-e-Muwathibat and then Talb-e-Ish'had, in their respective chronological order, is essential. Any deficiency in these legal requirements will render a preemption suit liable to an outright dismissal.
11. Both the Courts below have rightly dismissed the suit of the petitioner by properly appreciating the evidence available on record and applying the law on the subject correctly. The scope of revisional jurisdiction is very limited in which the Court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor can it upset the same, even if, on appreciation of evidence, a different view can be formed, unless these findings are shown to have been the outcome of a jurisdiction vested but not exercise or jurisdiction not vested, but exercised or one of material irregularity. I did not find any infirmity or misreading and non-reading of evidence in the impugned judgments which may warrant interference of this Court in the concurrent finding of facts recorded by two Courts below. In this respect reliance is placed on "Muhammad Rashid Ahmed v. Muhammad Siddique" (PLD 2002 SC 293) and "Muhammad Idrees and others v. Muhammad Pervaiz and others" (2010 SCM R 5).
12. This revision petition being without any substance, stands dismissed, with no order as to costs.
Concurrent Judgments Upheld/Revision .