' ABDUL LATIF KHAN, J.---This civil revision has been filed against the judgment and decree dated 9- 9-2011 passed by the learned District Judge/Zila Qazi, Shangla, whereby judgment and decree dated 25-4-2011, passed by the learned Civil Judge/Illaqa Qazi, Alpuri was upheld.
2. Arguments heard and record perused.
3. A perusal of the record reveals that plaintiff/petitioner filed a suit for possession through pre- emption regarding khasra No, 65 and khasra No, 315 known as "Inzar patay" measuring 31 kanals 12 marlas to the extent of 1 kanal 12 marlas situated at Muza Shesh. It is averred in the plaint that the disputed property has been purchased by defendant No, 1 from defendants Nos. 2 to 5 and defendant No, 1 was inducted into possession of the property, but no mutation or registered deed has been attested in this regard. In Para No, 3 of the plaint it is averred that on 27-7-2009 at about 12.00 hours at Lalonai Ada through informer namely Muhammad Pervaiz the plaintiff acquired knowledge in the presence of Momin Khan son of Gulab and there and then announced his intention to pre-empt the transaction and thereafter on 6-8-2009 as averred in Para No, 4 of the plaint notice of "Talb-e-Ish'had" duly attested by the marginal witnesses namely Sher Mahmood and Momin Khan was mailed through registered A.D. To the defendants.
4. The defendants contested the suit by filing written statement wherein it was contended that the property was the ownership of defendants Nos. 2 to 5, who previously sold it in favour of defendant No, 1 to the extent of 7 kanals and some of the property has been sold in lieu of Rs, 25, 50,000 on 2- 7-2009. As the entire amount was not paid, therefore, the registered deed was not attested; however, the same was later on attested during the pendency of suit on 5-3-2010, which is available on file as Exh. DW-1/2. The unregistered document of 2-7-2009, Exh.DW-1/1 was produced by the defendant vide which the transaction took place. The defendant has also admitted that he was inducted into possession of the property on 2-7-2009 and in his cross-examination when he appeared as DW-1 admitted that the plaintiff on acquiring knowledge on 27-7-2009 has exercised his right of pre-emption by making "Talb-e-Muwathibat" in accordance with law. Section 31 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 regarding the limitation provided for filing of the suit for possession through pre-emption, which is from the date of attestation of registered deed, attestation of mutation, induction of the vendee into possession of the property and through other document in case the transaction has not taken place through the registered deed, mutation or induction of the vendee into possession of the property. The plaintiff has though mentioned date, time and place in Para No, 3 as well as notice of "Talb-e-Ish'had" in Para No, 4 of his plaint. Section 2(d) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 defines the sale, which is reproduced in Section as follow:-- ' Section 2(d):
(d) "Sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of "Hiba-bil- iwaz" or "Hiba-ba-shart-ul-iwaz."
5. It is not necessary for prospective pre-emptor to wait for the registration of deed or for the attestation of mutation and the limitation for filing of suit for possession through pre-emption as laid down in section 31 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, is 120 days has been given from the date of attestation of registered deed, attestation of mutation and induction of possession and otherwise if sale not made through above three mentioned conditions, which is clear to the effect that it is not mandatory for the prospective pre-emptor to wait for the attestation of deed or mutation , however, the spirit of Section 13 of the Khyber Pakhtunkhwa Pre- emption Act, 1987 is also clear that it does not find mention in it that attestation of mutation or registration of deed rather it is the words used are the acquiring of knowledge of the sale and the sale can be even oral if came into knowledge of the plaintiff, can exercise his right of pre-emption by making "Talb-e-Muwathibat" in the order prescribed by law in section 13 of the Khyber Pakhtunkhwa Preemption Act, 1987. So far is the evidence by the plaintiff is concerned, no doubt the plaintiff has averred in Para Nos. 3 and 4 of the plaint about the date, time and place of "Talb-e- Muwathibat", however, in the presence of witnesses "Talb-e-Muwathibat" as alleged in the plaint was made on the information disclosed to the plaintiff by Muhammad Pervaiz son of Rahmatullah in the presence of Momin Khan, however, when the plaintiff appeared as P.W.2, he reiterated the stance taken in the plaint, however, made an addition to the effect that the presence of Sher Mahmood has been added in addition to the stance in the notice of Talbe-Ish'had" as well as in the plaint, which is an addition made by the plaintiff and has departed from his pleadings. So far is the statement of Muhammad Pervaiz, informer is concerned, who deposed as P.W.3, he has not supported the stance of the plaintiff. He has not deposed that he disclosed the information to the plaintiff on the date, time and place mentioned in the plaint. He has not given any details about date, time and place rather his examination-in-chief hinges upon the point that the defendant No, 1 sent him to the plaintiff with the message that he has purchased the property and if plaintiff wants to purchase to the extent of 1 kanal by making payment, the defendant No, 1 is ready to give him 1 kanal of land whereas the defendant No, 1 is not ready to give the rest of the property to the plaintiff, this is the only statement of the alleged informer, which in no way of any use to the plaintiff and, as such, he is departed and contradicted the statement of the plaintiff. The plea of learned counsel for the petitioner to the effect that it is only the plaintiff who is under bounden duty to prove the date, time and place of "Talb-e-Mawithibat" and not the witnesses, is totally misplaced for the variety of reasons, the witnesses of the plaintiff are equally bounden to prove and give details of date, time and place regarding "Talb-e-Muwathibat" as alleged with special reference to the informer, who disclosed the information as per version of the plaintiff. If plea of learned counsel is accepted then the plaintiff alone if fully supports the version made in the plaint could in no way be able to prove the case until and unless the informer and person/witness at the relevant time has supported the plaintiff and, as such, all the witnesses including informer were duty bound like plaintiff to give date, time and place to prove the incident of "Talb-e-Muwathibat". The plaintiff is bound by the deposition made in the plaint about his witnesses. The perusal of statement of P.W.3 reveals that he has not uttered a single word about "Talb-e-Muwathibat" and this deficiency alone is sufficient to non-suit the plaintiff regarding the incident of "Talb-e-Muwathibat". Even otherwise, the deposition of P.W.3, informer is totally in negation to the version made by the plaintiff in his plaint as well as in his statement, which is contrary to the plaintiff and, as such, fatal to the case.
Momin Khan was examined as P.W.4, who has also not given date, time and place of "Talb-e- Muwathibat" rather he has focused upon "Talb-e-Ish'had" . He was shown to have present at the time of "Talb-e-Muwathibat" in the plaint as well as in the statement but he has also not supported the version of the plaintiff. Sher Mahmood, P.W.5 was examined, who has given date, time and place of "Talb-e-Muwathibat" and shown his presence at the relevant time but P.W.3 & P.W.4 have not shown their presence at the relevant time and, as such, P.W.3, P.W.4 and P.W.5 are contrary to each other. Similarly, the deposition of P.W.5 is contrary to the context of the plaint and amounts to departure on behalf of the witnesses of the plaintiff from the pleadings of the plaintiff, which is not permissible under the law and departure on behalf of the witnesses amounts to departure on behalf of the plaintiff and the plaintiff cannot be exonerated from the statements made by his witnesses. The perusal of statement of .P.W.5, Sher Mahmood, in examination-in-chief would reveal that he has not mentioned the name of P.W.4, Momin Khan in his statement which too, contrary to the stance of the plaintiff and, as such, the evidence produced by the plaintiff is not confidence inspiring to prove the incident of "Talb-e-Muwathibat". The vital contradictions between the statement of the plaintiff and his witnesses are fatal to the case. The pre-emptor had to prove through his evidence the date of making of "Talb-eMuwathibat" time and place strictly in accordance with law. Needless to mention that pre-emption Act does not require the plaintiff to produce specific number of witnesses to prove "Talb-e-Muwathibat" but once it is alleged by the plaintiff that "Talb-e-Muwathibat" was made in presence of such and such witnesses on the information disclosed by the informer in that eventuality, he was duty bound to produce all those witnesses. Subsequent improvements made by the plaintiff would amount grave contractions, which are fatal to the case, as made in the instant case and amount to non-compliance of the provisions of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
6. The Courts below have decided the matter pending before them with conscious and application of independent mind and rightly non-suited the plaintiff/petitioner for want of proof of "Talb" within the meaning of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
For the foregoing reasons, the instant petition being devoid of merit is hereby dismissed.