' WAQAR AHMAD SETH, J.---This revision petition under section 115, C.P.C. Is directed against the judgment and decree dated 27-2-2008, whereby learned appellate court accepted the appeal of respondent and dismissed the pre-emption suit of petitioner.
2. Muhammad Sain (Sain Muhammad) respondent purchased land through mutation No,657 dated 25-1-1997 and petitioner on gaining knowledge about the sale transaction performed talbs and instituted a suit for possession through preemption on the basis of her superior right of pre- emption whereas two other rival pre-emptors also filed pre-emption suits. The respondent appeared and contested the suits by filing written statement. The learned trial Court after recording pro and contra evidence and hearing the parties vide consolidated judgment and decree dated 13-5-2005 dismissed the suits of Muhammad Farid and Mst. Hussan Afza whereas decreed the suit of petitioner. Feeling aggrieved, Muhammad Sain vendee and the rival pre- emptor Mst. Hussan Afza filed Appeals and learned appellate Court after hearing both the parties, accepted the appeal of vendee Muhammad Sain, set aside the judgment and decree passed in Suit No,110/1 vide impugned judgment and decree dated 27-2-2008. Hence, this revision petition.
3. Arguments heard and record perused.
4. A perusal of record would reveal that petitioner Mst. Mumtaz Bibi is recorded as co-owner in the suit property whereas the vendee respondent has no such qualification. The vendee also admitted the cosharership of petitioner in the suit land. The petitioner came to know about the sale transaction at 2000 hours on 14-5-1997 by the informer Ahmed Nawaz Khan and she made the jumping demand in presence of the informer and her son Abdul Karim. She accordingly sent notices talbe-ishhad. In order to substantiate the case, the petitioner produced evidence in line with the plaint and proved his superior right of preemption beyond any shadow of doubt against the vendee. The factum of gaining of knowledge by the petitioner and performance of requisite talbs stand admitted by the vendee Sain Muhammad, who during the course of his cross- examination stated that:-- " It is correct that pre-emptor Mumtaz Bibi got knowledge about the suit, she announced to pre- empt the suit property, after that she served notice upon me and then the present suit was instituted against me".
' The appellate Court reversed the findings of trial Court and non-suited the petitioner on the ground that she did not appear in the witness box as the observance of talbs being a personal act of the pre-emptor. Learned counsel for respondent in this respect relied on 2012 SCM R 1106 and 2011 CLC 578- wherein it has been held that non-appearance in person as witness in support of plaint and performance of such talbs is fatal to the suit for possession through pre-emption. Paying respect to the above referred case, it is observed that the case in hand is entirely on different footings. Exh.RW3/1 is the special power of attorney in favour of Ahmed Nawaz Khan with clear cut reason of 'pardanasheni' executed on 15-5-1997. In the notice Talb-e-Ishhad the petitioner / plaintiff stated that one Ahmed Nawaz Khan informed her of suit mutation and she immediately expressed her intention through jumping demand in front of two other witnesses including the informer Ahmed Nawaz Khan on 14-5-1997. The notice Talb-e-Ishhad is dated 15-5-1997. In the plaint the petitioner has narrated the same story. The record shows that petitioner never went to any public place/office rather the said informer/special attorney namely Ahmed Nawaz Khan arranged every thing i,e, bringing home the scriber and right from start till the filing of suit. Section 14 of the N.W.F.P. Pre-emption Act, 1987 provides:- "14. Demands by the guardian or agent. Where a person is unable to make demands under Section 13, his guardian or agent may make the required demands on his behalf".
6. There is a valid and genuine reason and according to the norms of society a pardanashin lady could not be compelled to come out of her private place and by not doing so she will lose her legal and constitutional rights. Since Ahmed Nawaz Khan is the informer, he is witness to Talb-e- Muwathibat and Talb-e-Ishhad, thus, in the circumstances he is a better special attorney of the petitioner having full knowledge about the proceedings from start to end. The learned trial Court passed a well-reasoned judgment whereas the appellate court failed to appreciate the legal proposition in its true spirit, thus, the impugned judgment and decree dated 27-2-2008 of Additional District Judge, Balakot are set-aside and that of Civil Judge are liable to be restored.
7. Consequently, this revision petition is allowed, impugned judgment and decree of appellate court are set aside and that of trial court stand restored. No order as to costs.