' ABDUL LATIF KHAN, J.--- Through this single judgment, I propose to dispose of C.R. No,145 of 2009 and C.R.No,218 of 2009 as both the revision petitions are the outcome of one and the same judgment and decree dated 7-5-2009 passed by the learned Additional District Judge-VI,. D.I.Khan.
2. Precise facts giving rise to the instant revision petitions are that the plaintiff namely, Habib-ur- Rehman (now dead and represented by his legal heirs Muhammad Asif and others) filed a suit against the petitioners/defendants for possession through pre-emption in respect of landed property fully detailed in the plaint, alleging that the suit property was originally owned by one Mst.
Qamr-unNisa who alienated the same to the petitioners/defendants through registered deed No,474 dated 17-3-1998 in lieu of Rs,1,45 600 but to defeat the right of preemption of the plaintiff, an inflated amount of Rs,3,16,000 was entered in the registered deed. It was further averred in the plaint that the plaintiff came to know about the sale transaction on 3-7-1998 at 5'0 clock through his son Muhammad Asif at his baithak and there and then declared his intention to preempt the suit property and subsequently sent notices Talb-e-Ishhad to the petitioners/ defendants through registered A.D. He claimed superior right of pre-emption being co-owner, adjacent owner and participator in amenities and appendages.
3. The suit was contested by the petitioners/defendants through filing their written statement. The learned trial court framed issues arising out of the pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments, the learned Civil Judge-V, D.I.Khan dismissed the suit of the plaintiff vide judgment and decree dated 7-7-2008.
4. Dissatisfied with the judgment and decree dated 7-7-2008, the plaintiff filed an appeal which was accepted by the learned Additional District Judge-VI, D I Khan vide judgment and decree dated 7-5-2009, the judgment and decree of the trial court was set aside and suit of the plaintiff was decreed on payment of sale consideration of Rs,3,16,000, hence the instant revision petitions.
5. The learned counsel for the petitioners contended that . The learned appellate court has failed to decide issue No,6 in its true perspective with regard to the performance of talbs. He contended that the case has been decided in a summary manner and the evidence on record has been ignored without properly discussing the material on file. He added that the appellate court failed to appreciate the spirit of Talb-e-Muwathibat with special reference to section 13 of the N.-W.F.P. Pre- emption Act, 1987. He contended that the respondent/pre-emptor has not performed the talbs in accordance with law and the P.Ws. Have not supported the version of the respondent as there are material contradictions inter se the statements of the plaintiff and his witnesses. He added that the date of notice Talb-eIshhad is not mentioned in the plaint and Photostat notices have been issued to the vendees which is against the spirit of law relating to the notice Talb-e-Ishhad and this aspect of the case has not been considered by the learned appellate court.
6. As against that, the learned counsel appearing on behalf of the respondents contended that the date of sending notices Talb-e-Ishhad finds mention in the notices which are annexed with the plaint and under the law, all those documents annexed with the plaint are to be considered as part and parcel of the plaint. He contended that though in the plaint, date of notices is not mentioned but the same is very much mentioned in the notices Talb-e-Ishhad. He contended that the plaintiff has not made specific denial in the written statement and only evasive denial has been made. He referred to the statements of D.Ws. And contended that the evidence to this effect produced is also silent in the same manner and the written statement is lacking this fact. He contended that he has filed separate C.R.No,218/2009 regarding issue No,8 with respect to market value and contended that the inflated amount of Rs,3,16,000, entered in the registered deed, has been wrongly fixed as the value of the property fixed in good faith and actually paid.
7. I have considered the arguments of learned counsel for the parties and carefully perused the record with their able assistance.
8. The perusal of para-3 of the plaint reveals that the plaintiff has failed to mention the date of notice Talb-e-Ishhad in the plaint which is requirement of law in terms of section 13 of the N.W.F.P Preemption Act, 1987. If the date of notice Talb-e-Ishhad is not mentioned, it would be fatal for the suit of the preemptor. Non-mentioning of date of Talb-eIshhad in terms of section 13 of the N.-W.F.P Pre-emption Act, 1987 was held fatal toward maintainability of suit by the apex court in Mian Pir Muhammad's case (PLD 2007 SC 302), wherein it was observed that:-- "Subsequently a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977), wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of Talb-e-Muwathibat. Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-eMuwathibat and date of issuing the notice of performance of Talb-e-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit."
' The view referred to above has further been approved by the apex court in Bashiran Begum's case (PLD 2008 SC 559), wherein it was held that:-- "According to the dictum laid down by the larger bench of this court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending case."
' In the case of Ghafoor Khan (deceased) through L.Rs, v. Israr Ahmad (2011 SCM R 1545) the honourable apex court has observed that non-mentioning of date of issuance of notice Talb-e- Ishhad in terms of section 13 of the N.-W.F.P. Preemption Act, 1987 is fatal for the maintainability of suit.
9. Coming to the merits of the case, the plaintiff failed to discharge the burden to prove through cogent evidence the factum of Talbs. The contradictions in the evidence produced by the plaintiff are grave in nature. The plaintiff is not certain about the date of knowledge and to this effect his own statement is full of contradictions. The evidence available on file positively suggests that plaintiff had got the knowledge of the impugned sale after 15/16 days, but failed to make Talb-e- Muwathibat on acquiring the knowledge and as such the first Talb has not been proved and the superstructure raised over it would fall to the ground.
10. So far as the service of notice Talb-e-Ishhad is concerned, the delivery of notice to the vendees has not been proved. The record does not speak about the availability of A.D. Card on file. P.W.4, postal clerk has been examined who has not produced the record regarding delivery of notice to the vendees, however, the proper person in this respect namely, postman has not been produced resulting in failure of plaintiff to prove the delivery of notice Talb-e-Ishhad to the defendants. In Bashir Ahmad's case (2011 SCM R 762) it was observed:-- "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-eIshhad 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."
' 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.
' In another judgment of this court reported as 2010 YLR 1190 it was held that production of A.D. Card was necessary to prove Talb-e-Ishhad and if not annexed with the plaint, being requirement of law, Talb-e-Ishhad would be incomplete and the production of postman in proof of service upon the defendant/vendee would become essential.
' The honourable Supreme Court of Pakistan in case reported as 2011 SCM R 762 held that production of postman was necessary to prove the service of notice Talb-e-Ishhad in the following observations:-- .
"It is true that the respondent through production of witnesses amply proved that notice of Talb- eIshhad 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."
11. The perusal of the file reveals that one notice Talb-e-Ishhad was got scribed by the plaintiff in the name of two vendees namely, Ghulam Mohyuddin and Ikram-udDin sons of Jamal-ud-Din, posted as Exh.P.W.3/1 and Exh.P.W.3/2. Both these notices are the photocopies of the original, mailed to the vendee/defendants as Photostat copy of the original which is against he mandate of law.
Under section 13 of the N.-W.F.P. Pre-emption Act, 1987, the plaintiff is bound to make demands of the pre-emption in a particular order and manner. The second Talb i,e, Talb-e-Ishhad means demand by establishing evidence for which specific procedure has been laid down and the plaintiff, in order to maintain a suit and get a decree, has to prove the Talbs in accordance with the principles given therein. To prove all Talbs is a pure question of fact as to whether the requisite talbs were made and proved. Sending of notice, in Photostat, amounts to failure of plaintiff in respect of proof of Talb-eIshhad. It was the bounden duty of the plaintiff to serve the defendants, rather ensure the delivery of notices Talb-eIshhad, In original and in no eventuality, mandate has been given to the plaintiff to serve the defendants with Photostat copy of the original, inadmissible under the law and alien to the procedure prescribed under the relevant provision of N.W.F.P. Pre- emption Act, 1987. Such being the case, sending of Photostat copy of notice would amount to non- sending of notice and would be fatal to the suit of plaintiff. Moreover, notice has to be scribed and served on every vendee separately, as ascribing and sending of joint notice to the vendees has not been approved by law.
12. So far as the issues regarding sale consideration and value of the property are concerned, the amount entered in the impugned registered deed i,e, Rs,3,16,000 seems to be genuine as the same is nearer to the prevailing prices of land. The deed has been duly registered as per law. Certificate is admissible to prove the facts made in the endorsement, as it enjoys the presumption of correctness and as such the amount mentioned in deed has rightly been relied upon by the learned appellate court. The learned counsel for the respondent was unable to point out any infirmity or illegality in the findings with regard to the value of the land as the same has been based upon a public document.
13. For the aforestated reasons, C.R. No,145/2009 is allowed, judgment and decree dated 7-5-2009 of the learned Additional District Judge VI, D.I. Khan is set aside being perverse and contrary to law and the judgment and decree dated 7-7-2008 passed by the learned Civil Judge-V, D.I. Khan, vide which the suit of the plaintiff was dismissed, is restored while C.R. No,218 of 2009 being bereft of merit is hereby dismissed, leaving the parties to bear their own costs.