' QAZI FAEZ ISA, J.---Through this appeal the judgment dated 11-2-2011 of the Hob'ble Peshawar High Court, Abbottabad Bench rendered in Civil Revision No, 133 of 2009 has been assailed. The said revision was filed against the judgment dated 12th March, 2009 passed in Civil Appeal No,33/13 of 2007, whereby the learned Additional District Judge-IV, Abbottabad had allowed the appeal and decreed the suit in favour of the plaintiff.
2. The appellant had filed a suit for pre-emption in respect of lands in Mauza Rajoya, Tehsil and District Abbottabad which had been bought through a registered sale deed dated 27th August, 2002 by Muhammad Aslam Khan from Mst. Firdos Jan, Akhtar Jan and Jameela Jan, the daughters of Sher Ahmed. The said Muhammad Aslam Khan died after filing of the suit and his legal representatives were arrayed as defendants in the suit and are the respondents before us. It was alleged in the plaint that though the sale deed mentioned an amount of five hundred thousand rupees, however, it has been sold for only fifty thousand rupees and immediately upon learning about the same he expressed his intention to pre-empt by proclaiming Talb-i-Muwathibat on 27th September, 2002 which was followed by issuance of a notice dated 30th September, 2002 being the requisite Talb-i-Ishhad. The said notice was sent through registered post acknowledgment due to Muhammad Aslam Khan, but as it was not acted upon the suit was filed.
3. Mr. Muhammad Shoaib Shaheen, learned Advocate Supreme Court contended that the learned trial judge had failed to properly appreciate the evidence that the notice had been properly dispatched, which according to the learned counsel, was all that was required, and it was immaterial whether the same was not received by the addressee, namely, Muhammad Aslam Khan; consequently, the appellate court corrected the error and decreed the suit. However, the Hon'ble High Court fell into error by setting aside the judgment in appeal and dismissed the said suit as had been done by the trial court on the ground of failure to prove service of notice. He also placed reliance upon section 27 of the General Clauses Act, 1897.
4. The learned counsel for the respondents Mr. Abdul Rauf Khan Jadoon stated, that in order to successfully establish Talb-e-Ishhad under section 13(3) of the N.-W.F.P Pre-emption Act, 1987, the pre-emptor must send a notice in writing attested by two witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption.
However, the pre-emptor failed to establish that Talb-e-Ishhad was made and no notice was received by the vendee. He relied upon the reported cases of Muhammad Bashir v.Abbas All Shah (2007 SCM R 1105), Bashir Ahmed v. Ghulam Rasool (2011 SCM R 762) and Allah Ditta v. Muhammad Anar (2013 SCM R 866) and contended that the general law of 'service by post' would not be applicable in respect of pre-emption as the same was attended to by the specific law on the subject, i,e, the N.-W.F.P. Pre-emption Act, 1987, section 13(3) whereof stipulates, "registered cover acknowledgement due" and not just dispatch by registered post.
5. We have heard the learned counsel for the parties and have also perused the record. The meaning of 'service by post' as described in the West Pakistan General Clauses Act, 1956 which is applicable to the province of Khyber Pakhtunkhwa is as under:-- "26. Meaning of service by post.--- Where any Provincial Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been 'effected at the time at which the letter would be delivered in the ordinary course of post."
' It would also be appropriate to reproduce section 13(3) of the N.-W.F.P. Pre-emption Act, 1987, as under:-- "(3) Subject to his ability to do so, where a pre-emptor has made Talb-e-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge, whichever may be earlier make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover, acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption: ' Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses"
[emphasis added by us].
6. That the vendee has denied receipt of the notice of Talb-eIshhad. The register of the Post Master that was produced showed that the notice was received by one Rashid Khan. Wasi-ur-Rehman, P.W.2, record clerk at Sub-Post Office, Rajoya Abbotabad, on oath stated that he delivered Registry No, 306 and admitted that one Rashid Khan was the recipient who had signed the receipt. However, in cross-examination he admitted that he had not personally delivered the registry nor taken signature from Rashid Khan, but that the Sub-Post Master had done so, but he was not produced before the court. The question for consideration is whether the Talb-i-Ishhad notice was sent and/or received by the intended addressee/vendee.
7. The fact that the notice was merely sent would not suffice for the making of Talb-i-Ishhad. The vendee must be apprised about the intention of the pre-emptor. The acknowledgment due slip that was presented (Exhibit P.W.6/2) was also signed by the said Rashid Khan, and not by Muhammad Aslam Khan. Therefore, it cannot be stated that the requisite Talb-i-Ishhad had been made. The notice should have been served upon the vendee/addressee, Muhammad Aslam Khan.
Preemption is attended to by its own law and also provides for the manner of sending notice. The general law as contained in section 26 (supra) of the Provincial General Clauses Act, 1956 would not be applicable. Section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 stipulates, "under registered cover acknowledgment due" (emphasis added) whereas the B words "acknowledgment due" are not mentioned in section 26 of the General Clauses Act, 1956 applicable to the Province of Khyber Pakhtunkhwa. In the case of Muhammad Bashir (supra) it was held, that:-- "11. The requirement of, "sending a notice in writing" is followed by a rider i,e, "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgment due" redundant'. The service of the addressee as prescribed in law therefore is imperative. If the acknowledgement card carried an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah b. v. Election Officer [1980] 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it."
' The case of Muhammad Bashir was also followed by two different Benches of this Court, respectively in Bashir Ahmed and Allah Ditta (supra). That since admittedly the said notice was received by Rashid Khan (and not Muhammad Aslam Khan) and the receipt thereof was denied by the vendee notice of Talb-i-Ishhad as prescribed by section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 was not served upon the vendee and a necessary component to succeed in a pre-emption suit was not fulfilled. The impugned judgment of the High Court which had dismissed the said suit therefore does not call for any interference and the appeal is dismissed with costs.