' The petitioner has called in question the judgment and decree dated 08.01.2011 passed by learned District Judge, Lakki Marwat, whereby appeal against the judgment and decree dated 29.03.2010 of learned Civil Judge-V, Lakki Marwat, was accepted and suit of petitioner/plaintiff dismissed.
2. Brief facts of the -case are that the petitioner/plaintiff instituted a pre-emption Suit No, 231/1 in the Court of learned Senior Civil Judge, Lakki Marwat, which was entrusted to the learned Civil Judge-V, Lakki Marwat. The petitioner/plaintiff averred in his plaint that he on 06.11.2008 at 10.00 hours at his baithak, in presence of Nasimullah Shah got knowledge of suit sale through Bin Yamin Shah r/o Aba Khel. On getting information he there and then in presence of above said witnesses performed Talb-e-Muwathibat and on 8.11.2008 he sent notice Talb-e-Ishhad to the respondent/defendant and after fulfilling all necessary requirements relating to the performance of 'Talbs', under the pre-emption Act filed the pre-emption suit and so performed last Talb-e- Khasumat.
3. The respondent/defendant was summoned, who on appearance contested the suit by filing written statement, wherein he raised various legal as well as factual pleas by refuting the averments made in the plaint.
4. Parties adduced pro and contra evidence in support of their respective versions according to issues framed. On conclusion of trial, the learned trial Court after hearing arguments of learned counsel for the parties decreed the suit. The respondent/defendant being feeling dissatisfied from the Judgment and decree of learned trial Court preferred appeal before the learned District Judge, Lakki Marwat, who vide impugned judgment and decree dated 18.01.2011 accepted the appeal and dismissed the suit of petitioner/plaintiff, hence the instant revision petition.
5. Learned counsel for petitioner argued that he has proved his case as per the provisions of the Khyber Pakhtunkhwa Preemption Act, 1987. Learned trial Court by rightly appreciating the evidence has decreed the suit, while learned appellate Court on the basis of minor discrepancies in the evidence had accepted the appeal and dismissed the suit, on hyper technical approach to the rule regarding the gap of one or two minutes in advancing information, which can be, consumed in offer and acceptance of compliments. Further argued that sending of notice Talb-e-Ishhad has been proved by documentary evidence i,e, return of AD card duly signed by defendant marked as Ex.PW-3/1, hence, oral denial of defendant regarding non-receiving of notice is not worth credence.
He concluded his arguments by saying that admittedly the petitioner has superior right over the suit property and non-producing the post man is not fatal to his case, as AD card is sufficient proof of delivery of notice Talb-e-Ishhad upon the vendee/respondent, hence, requested for accepting of instant petition.
6. Conversely "learned counsel for the respondent/defendant vehemently opposed the arguments of learned counsel for petitioner and argued that the petitioner failed to perform Talb-e- Muwathibat as well as Talb-e-Ishhad in accordance with the Khyber Pakhtunkhwa Pre-emption Act, 1987, as he has pronounced Talb-e-Muwathibat prior to a minute getting information and despite categorically denial of receipt of notice in statement as DW-1, petitioner has failed to prove notice Talb-e-Ishhad by producing post man. He went on to say that no doubt petitioner has superior rights, but it is also sin qua non for successful exercise of right of pre-emation to prove basic requirements of 'Talbs', which is lacking in the Instant suit, hence, the revision petition is liable to dismissal.
7. Valuable arguments of learned counsel for the parties heard and record perused.
8. Perusal of the record reveals that the, petitioner erred in his plaint that he got knowledge of the suit land through Bin Yamin Shah on 06.11.2008 at 10.00 a.m, but when he appeared in the witness box as PW-3, he in cross-examination stated that when Bin Yamin appeared it was 10.01 a.m, meaning thereby that the petitioner performed Talb-e-Muwathibat a minute prior to arrival of the informer, which is astonishing factor and fatal for performance of alleged performance of Talb-e- Muwathibat. Pre-emption is a feeble right, its requirements shall have been performed strictly in accordance with the Khyber Pakhtunkhwa Pre-emption Act, 1987 and proved through cogent and credible evidence. Talb-e-Muwathibat is a jumping demand, which should immediately have been pronounced, even delay or hurry of a minute could adversely affect the right of a prospective pre- emptor, as in the instant case.
9. It is requirement of law under Section 13 of Khyber Pakhtunkhwa Pre-emption Act, that after making Talb-e-Muwathibat intending pre-emptor shall affirm his intention not only in pleading but also has to prove this fact through producing evidence and in the instant case pre-emptor has not complied with this legal requirement in accordance with law, as neither he stated in his plaint that he in confirmation of intention to exercise his right of pre-emption had sent notice Talb-e-Ishhad nor he or his marginal witnesses alleged this fact in their statements recorded before the Court. In this respect verdict laid down by the honourable Supreme Court in case titled "Muhammad Zahid Vs Dr. Muhammad Ali",(PLD 2014 Supreme Court 488), wherein it is held that: "7. The respondent stated in his evidence recorded in the Court that he signed and sent notice to the vendee but he did not state anywhere that he confirmed his intention to exercise his right of pre-emption. Talb-i-Ishhad which, in fact.' is confirmation of intention to exercise a right of pre- emption cannot be held to have been established by mere signing and sending of notice. The witnesses examined in the Court, too, did not state anything regarding confirmation of such intention." (underline for emphasis)
10. Coming to Talb-e-Ishhad, the respondent defendant in his Court statement recorded as DW-1, he categorically denied receiving of notice Talb-e-Ish'had. By this unequivocal denial of the petitioner/defendant, the respondent/plaintiff was under obligation to produce the postman to prove delivery of registered post containing notice of Talb-e-Ish'had, in accordance with law. He produced one Muhammad Ismail clerk of concerned Post Office as PW-2, who during cross- examination has categorically disclosed that he is unable to state that what was in the envelops, nor he could say that the envelop was delivered to the defendants or not, as he is not postman. In such a situation, it was incumbent upon the respondent/defendant to produce postman to prove service/delivery of notices Talb-e-Ishhad in compliance of the principle set by the Hon'ble Supreme Court in cases titled "Muhammad Bashir and others Vs Abbas Ali Shah" (2007 SCM R 1105), "Basheer Ahmed Vs Ghulam Rasool" (2011 SCM R 762) and "Allah Ditta through L.Rs and others Vs Muhammad Anar" (2013 SCM R 866). But he did not produce the concerned postman to prove the delivery of registered posted envelope containing alleged notice and thereby failed to discharge the onus of proof. Consequently, the respondent/plaintiff failed to prove performance of Talb-e- Ishhad in accordance with law.
11. It needs no emphasis that for successful exercise of right of pre-emption, the proof of performance of Talb-e-Muwathibat and then Talb-e-Ishhad, in their respective chronological order, is essential. Any deficiency in these legal requirements will render a pre-emption suit liable to an outright dismissal. In the instant case, the plaintiff has failed to prove Talab-e-Muwathibat and delivery of notice Talb-elehhad in accordance with the provisions of Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
12. In view of above discussion, it is held that the learned appellate Court has rightly appreciated the evidence in its true perspective and arrived at a right and just conclusion, hence, the impugned judgment and decree of the learned appellate Court, needs no interference in revisional jurisdiction of this Court, therefore, the instant revision petition stands dismissed. No order as to costs.
(R.A) .