' Through the instant revision petition, the petitioners have called in question the judgment and decree dated 09.6.2011 rendered by learned Additional District Judge, Lakki Marwat, whereby .The appeal filed by the petitioners against the judgment and decree dated 30.11.2010 of learned Civil Judge-VIII, Lakki Marwat was dismissed.
2. In essence, plaintiff Akram Khan, predecessor-in-interest of respondents, brought a suit against the petitioners for possession through pre-emption in respect of property detailed in the heading of the plaint. It is alleged in the plaint that plaintiff came to know about the transaction on 14.10.1999 through his ion Shehzad at about 4 p.m. In his shop situated in Tajori Bazar and there and then declared his intention to pre-empt the suit land, followed by issuance of notice talbe-ishhad.
3. The suit was contested by the petitioners by submitting their written statement. The learned trial Court framed the required issues from the pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-III, Lakki Marwat decreed the suit of respondents vide judgment and decree dated 30.11.2010.
4. Dissatisfied with the judgment and decree dated 30.11.2010, the petitioners filed an appeal which was dismissed by learned Additional District Judge, Lakki Marwat vide impugned judgment and decree dated 09.6.2011.
5. The learned counsel for petitioners contended that the impugned judgment is against law and facts on record; that the essential requirements of Section 13 of the NWFP Pre-emption Act, 1987 have not been fulfilled by the predecessor of respondents before institution of the suit regarding proper service of notice upon the petitioners/vendees, but instead of this patent non-compliance of the mandatory provisions of Section 13 of the NWFP Pre-emption Act, 1987, both the learned Courts below have decreed the suit in favour of respondents, which is gross illegality and irregularity; that on acceptance of the revision petition, the impugned judgments may be set aside.
6. On the other hand, learned counsel for respondents supported the impugned judgment and argued that both the learned Courts below have concurrently decreed the suit thereafter proper appreciation of law and facts on, record, could not be disturbed by this Court in exercise of its revisional jurisdiction.
7. I have heard learned counsel for the parties and have carefully gone through the record.
8. The provisions contained in Section 13 of the NWFP Preemption Act, 1987 regard* sending of notice to establish talb-eishhad which reads as: "13(3). Where a pre-emptor has made talb-e-muwathibat under sub-section (2), he shall as soon as 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-e-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of preemption."
In case in hand, respondent/pre-emptor had claimed that he had sent a notice to vendees/petitioners through registered cover with A/D card, but this fact has not been proved. It is established principle of law facts alleged in pleadings shall be proved, while it has been made mandatory by the provisions of sub-section (3) of Section 13 of the NWFP Pre-emption Act, 1987 that the required notice shall be sent to the vendee(s) through registered cover with A/D card. The respondents have failed to bring on record the acknowledgment due nor any postal official to confirm that the registered cover was received by vendees. Even respondents have not tried to produce any secondary evidence in this regard. Respondent has not said a single word in his whole examination as a witness that the registered cover was received by the petitioners and they have signed or thumb impressed the A/D card. The A/D cards were not exhibited during course of trial by any witness. Where the vendee denies the factum of receiving any notice, then it becomes obligatory upon the vendor to prove sending of notice strictly in accordance with the provisions contained in sub-section (3) of Section 13 of the NWFP Pre-emption Act, 1987, which make it essential to produce the postman, who had delivered the registered cover containing the required notice of talb-e-ishhad. As respondent had failed to discharge his legal obligation cast upon him under subsection (3) of Section 13 of the Act ibid, therefore, it can be safely said that the requirements of talb-e-ishhad as enumerated in sub-section (3) of Section 13 of the NWFP Pre- emption Act, 1987 have not been fulfilled and Talb-e-Ishhad has become defective on account of non-production of A/D card and non-examination of the postman who allegedly had served notices upon petitioners..
9. Sub-section (1) of Section 13 of the NWFP Pre-emption Act, 1987 disentitle a pre-emptor therefrom award of the decree for possession through pre-emption by Court, if he fails to make demand of pre-emption as envisaged thereunder, which reads as: "13. Demands of pre-emption.--(1) The right of preemption of a person shall be extinguished unless such person makes demand of pre-emption in the following order, namely:--
(a) talb-e-muwathibat:
(b) talb-e-ishhad; and
(c) talb-e-khusumat"
' While sub-section (3) of Section 13 of the NWFP Pre-emption Act, 1987 prescribes manner and mode of making of talb-e-ishhad. Keeping in view the above-mentioned provisions of law, which were not complied by the respondent, has extinguished his right of pre-emption over the suit property.
10. Therefore, for the above mentioned reasons, this revi ion petition is accepted, the impugned judgments and decrees of both the Courts below are set aside and consequently, the suit filed by predecessor of respondents is hereby dismissed.
(R.A.) .