1. SYED AFSAR SHAH, J.--- This civil revision is directed against the judgment dated 13-9-2011, passed by learned Additional District Judge-II, Karak, whereby the appeal filed against the judgment/decree dated 8-3-2011 recorded by learned Civil Judge-II, Karak was dismissed.
2. 2.Relevant facts for disposal of the present civil revision in brief are as under:--- It so happened that on the basis of sale Mutation No.11628 attested on 17-5-2010 land measuring 9 kanals situated in the local limits of Moza Latamber was purchased by Zabehullah and his two brothers for an ostensible amount Rs .1,80,000/-.
3. The sale was pre-empted by Awal Khan, the respondent/pre-emptor claiming his superior right of pre-emption on all the three grounds allowed by law and giving the sale consideration as sum of Rs.90,000/- or whatever is fixed by the Court.
4. 3.When put on notice by the learned lower court, petitioners/defendants contested the suit, inter alia, on the ground that since the pre-emptor has failed to comply with the mandatory provisions of section 13 of the Pre-emption Act, therefore, the suit is liable to be dismissed.
5. The learned lower court after recording evidence of the parties for and against granted partial decree in favour of the petitioner/ pre-emptor, vide judgment dated 8-3-2011 and aggrieved from the same the petitioners/defendants filed appeal in the court of learned Additional District Judge- II, Karak, but with no premium and hence, this petition.
6. 4.It is the contention of learned counsel for the petitioners/ defendants that since the respondent/pre-emptor has failed to comply with the mandatory provisions of section 13 of Pre- emption Act, therefore, the suit is liable to be dismissed. He further argued that both the courts below by not adhering to the above factual aspect and legal infirmity which is there in the case has committed illegality. He went on to say that despite denial by the petitioners/defendants in the written statement in respect of the receipt of notice of Talb-e-Ishhad, the respondent/pre-emptor has neither produced the postman nor dispatch/Booking Clerk, who could support his version with respect to the sending of notice of Talb-e-Ishhad and hence on this score alone he should have been non-suited. Learned counsel in support of his arguments also placed reliance on case-laws "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCM R 1105) and "Basheer Ahmed v.
7. Ghulam Rasool" (2011SCMR 762).
8. 5.As against that learned counsel for the respondent/plaintiff argued that since the two courts below have rendered the concurrent finding on the point of talbs, therefore, this court while exercising revisional jurisdiction is not required to enter upon the reappraisal of evidence. He went on to say that in view of provisions of General Clauses Act, the registered letter, once booked and issued, is presumed to have been served upon the addressee. He went on to say that receipts of Post Office are exhibited without objection of the petitioners/ defendants and if there is any irregularity in service of the registered letter on the addressee/defendant, it may not be attributed to the plaintiff/pre-emptor.
9. 5(sic). I have considered submissions of learned counsel for the parties, gone through the record appended with the petition and perused the relevant law on the subject as well.
10. 6.According to section 13 of the N.-W.F.P. Pre-emption Act, 1987, 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-e-Muwathibat; (b)Talb-e-Ishhad; and (c)Talb-e-Khusumat Explanation: (i) "Talb-e-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.
11. Explanation (ii) "Talb-e-Ish'had" means demand by establishing evidence.
12. Therespondent/pre-emptorhasallegedintheplaintthaton17-5-2010 at about 1700 hours, he along with his son Mir Saadat Khan were present in their house, when in the meanwhile, Qasir Mehmood, their co-villager came 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 transaction. Here it is pertinent to note that as per version of the petitioners/defendants the pre- emptor was already in know of the suit transaction, as on the day of attestation of suit mutation he has visited the Patwar Khana inasmuch as has apprised the Revenue Officer not to go for attestation of the impugned mutation, because there is a dispute on the suit property between him and the vendor. Appearing as P.W.2, the pre-emptor has stated in support of his plaint, getting of knowledge of the suit transaction and sending of notices to the vendees besides his superior right of pre-emption, but when put to a cross-examination by learned counsel for the petitioners/defendants he set the ball rolling in favour of the vendees. He has admitted that two daughters of Vendor Shah Mir Khan have been married to his two sons; that his sons, nephew and his daughters-in-law had gone to Ghulam Tehsildar and had apprised him not to go for attestation of impugned mutation, because there is a dispute with the vendor in respect of the land in dispute. He has categorically stated that on the day of attestation of impugned mutation, he along with Ayaz Khan had gone to the Revenue Officer and had asked him not to attest the suit mutation. When two daughters of the vendor have been married in the house of the pre-emptor and when he paid a visit to the office of Tehsildar informing him not to attest the suit mutation and that too on the day of its attestation, how he could say that he was not in know of the suit transaction and that he was informed by Qasir Mehmood, when he was sitting along with his son in his house. This conduct of the pre-emptor in the attending circumstances of the case is repellant to the common sense and the only inference that one could draw from such course of events is that there is some hanky panky and that the version of the pre-emptor insofar as the knowledge pertaining to the suit transaction is concerned is not above board. Moreover, Mir Saadat son of the pre-emptor when appeared as P.W.3, has stated in support of the version of his father, but during the cross-examination he has denied that on the day of attestation of mutation his father in the company of Shah Ayaz Khan had gone to the concerned Revenue Officer, contradicting therein the statement of the pre-emptor. The original Urdu version is given as under:--- This witness has also denied any dispute in respect of the suit land with his father-in-law, the vendor, while as against that, the pre-emptor has categorically stated that his son had gone to the office of Revenue Officer and had informed him not to attest the impugned mutation as there is a dispute in respect of the same property between them and the vendor.
13. 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 talbs and on the other hand truthfulness of P.W. Mir Saadat is also become doubtful. Wisdom is derived from a case-law "Muhammad Nazeef Khan v. Gulabat Khan and others" (2012 SCM R 235).
14. 7.Now coming to the second talb, i.e. Talb-e-Ishhad. The respondent/plaintiff has alleged in his plaint that on 28-5-2010 he sent notices of Talb-e-Ishhad to the petitioners/defendants through registered AD, but it appears from the written statement that vendee/defendants have denied the same. Similarly, Shafiullah one of the defendants, when appeared as D.W.1, has stated that no notice of Talb-e-Ishhad has been given to them. In situation like one, the pre-emptor aught to have examined either the postman or concerned booking/dispatch official to prove service of notices of Talb-e-Ishhad, in view of the principle laid down in cases "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCM R 1105) and "Basheer Ahmed v. Ghulam Rasool" (2011SCMR 762).
15. No doubt, in terms of S.27 of General Clauses Act, it is presumed that registered letter issued would reach its addressee and similarly in view of Article 129 (e) of Qanun-e-Shahadat, all official acts are presumed to be regularly performed, but both these presumptions stand rebutted when the addressee appear before the court and makes statement on oath that no such registered letter has been delivered to him.
16. By now, it is settled law that to prove negative circumstance, only statement on oath before the court is sufficient and burden to prove the positive circumstance, is shifted to the party who asserts the same. In light of this principle, the burden to disprove the element of notice of Talb-e-Ishhad stands discharged by the petitioners/defendants by making statement on oath, shifting therein the burden to prove the positive circumstance to the pre-emptor/respondent, but as stated earlier, he has not been able to discharge the same, as he has neither examined the concerned postman nor dispatch/booking official. In this view of the matter, the respondent/plaintiff has failed to prove Talb-e-Ishhad, in accordance with law because merely it is not sufficient to allege the performance of Talb-e-Muwathibat and Talb-e-Ishhad in the plaint, but it is also incumbent upon the pre-emptor to prove the same through cogent and reliable evidence and if he fails to discharge the onus, he would face the legal consequences. In light of this factual and legal perspective, the judgments of both the courts below are suffering from misreading of evidence and wrong application of law thereto, which are not sustainable in the eyes of law.
17. 9.I am aware of the fact that this court while exercising revisional jurisdiction is not required to enter into reappraisal of evidence, but so far as the case under consideration is concerned here the two courts below have failed to attend the well-settled principle relating to the appraisal of evidence, vis----vis Talb-e-Muwathibat and Talb-e-Ishhad, as a result of which both have reached patently on wrong conclusion resulting into miscarriage of justice and this being the position the revision petition is allowed, the judgments of the two courts below are set aside, resultantly, the suit of the respondent/plaintiff stands dismissed. No order as to costs .