' Through the instant petition, the petitioners/defendants have impugned the judgment and decree dated 16.3.2009 passed by the learned Additional District Judge-III, D.I. Khan vide which he decreed the suit of the respondent/ plaintiff for possession through pre-emption against the petitioner and thereby reversed the findings of the learned trial Court.
2. Short facts leading to the instant revision petition are that respondent/plaintiff filed a suit for possession through pre-emption against petitioner/defendant in respect of land measuring 21 Kanals - 3 Marlas fully described in the heading of the plaint situated at Mauza Hathala, Tehsil Kulachi, D.I-.Khan and averred in his plaint that the suit land was purchased by the petitioner/defendant vide Mutation No. 2246 dated 23.2.1999 for a sum of Rs.4230/- but in order to defeat the pre-emptive rights of the respondent/plaintiff, an exaggerated amount of Rs.60000/- was mentioned in the mutation and that he got the knowledge of the sale mutation on 27.2.1999 at 03:30 p.m. Sepehr at his Baithale through one Abdul Ghaffar Khan and he immediately performed Talb-e-Muwathibat in the presence of Abdul Ghaffar Khan and Abdul Latif Khan and thereafter on 4.3.1999 sent notice Talb-eIshhad to the petitioner/defendant duly signed by two witnesses Amanullah Khan and Abdul Latif Khan through registered post under A.D cover and on refusal of the petitioner/defendant to receive the sale consideration and surrender the suit property, hence the suit.
3. The petitioner/defendant when summoned contested the suit by filing his written statement.
From the divergent pleadings of the parties, the learned trial Court framed as many as nine issues including relief and after holding a full dressed trial, the suit of the respondent/ plaintiff was dismissed on 20.3.2407 but in appeal preferred by the respondent, the learned Appellate Court reversed the findings of the learned trial Court vide judgment and decree dated 16.3.2009 and decreed the suit in favor of the respondent, hence the present petition.
' Arguments heard and available record peru, 1987 which envisages that the right of pre-emption of a person shall be extinguished unless he makes demands of pre-emption in the following manner, namely:--sed.
4. In the first hand it would be more apt to revert to Section 13 of the NWFP Pre-emption Act
(i) Talb-e-Muwathibat, i.e. Immediate demand by a pre-emptor in the same sitting/ma/Us where he came to know about the sale transaction declaring his intention to exercise of his right of pre- emption;
(ii) Talb-e-Ishhad, i.e. Demand by establishing evidence and,
(iii) Ta/b-e-Khasumat, i.e. Demand by filing a suit.
5. In the present case, the respondent/plaintiff pre-empted the suit property measuring 21 Kanal - 3 Marlas acquired by the petitioner/defendant through Mutation No. 2246 attested on 23.2.1999. The respondent/plaintiff alleged in the plaint to have come to know about the suit mutation through one Abdul Ghaffar Khan on 27.2.1999 at 03:30 p.m. (Sephr) at his 'Baithak where after he performed Talb-e-Muwathibat in the presence of the informer Abdul Ghaffar Khan and one Abdul Latif Khan.
6. During evidence, the respondent/plaintiff appeared as PW-7 and stated that on 27.2.1999 at 'Dopeher' time while sitting with Abdul Latif Khan at his 'Baithak', Abdul Ghaffar Khan came there and after exchanging 'Dua Salam', he addressed and informed the respondent/ plaintiff about the suit sale where after he performed Talb-e-Muwathibat and when he looked at his watch, it was 03:30 hours.
' The informer Abdul Ghaffar Khan recorded his statement as PW-8 and stated to have gone to the 'Baithak' of the respondent/ plaintiff on 27.2.1999 at 'Dopeher' time where the respondent/ plaintiff was sitting with Abdul Latif Khan and after sitting with them for a while, he told the respondent about the purchase of the suit property by the petitioner where after the respondent made his jumping demand and after looking at his wrist watch, it was 03:30 p.m. This PW further confirmed the time factor in his cross-examination when to question he admitted as correct that he visited the Baithak' of Abdul Qayyum (respondent) at Zuhr time.
' Abdul Latif Khan recorded his statement as PW-9 and stated to be present in the 'Baithak' of the respondent at 'Zuhr' time when Abdul Ghaffar (informer) arrived there and after exchanging 'Dua Salam', he told Abdul Qayyum Khan about the purchase of the suit property by the petitioner where after the pre-emptor made his jumping demand and after looking at his watch, it was 03:30 p.m.
Zuhr and Dopeher cannot be reconciled with the alleged time of performance of Talb-e- Muwathibat by the respondent at 03:30 p.m.
7. On the one hand, 03:30 p.m. In the month of February can by no time definition be termed as 'Dopeher' as in the said month the Asr prayers are normally offered at 03:30 to 03:45 pm. Moreover, the village folk are much more particular and punctual about the timings and they commonly use 'Subh Vela, 'Dopeher Vela', 'Sephr Vela', 'Maghrib Vela' and 'Isha Vela' in the local jargon unlike the people residing in the cities who mention time by the clock. The respondent alleges to have been informed by the informer on 27.2.1999 at 'Dopeher' at his 'Baithak' immediately after exchanging 'Dua Salam' as against the statement of the informer Abdul Ghaffar Khan who stated to have visited the 'Baithak' of the respondent and after sitting there for a while, he disclosed the information about the suit sale to him Such patent and visible contradictions in the statements of the preemptor and the informer cast serious doubts on the performance of Talb-e-Muwathibat made by the respondent not only regarding the time but also viz a viz the jumping demand so alleged by him. As such the jumping demand on the part of the respondent/plaintiff stands disproved.
8. In a situation where the performance of Talb-e-Muwath that stands disproved, the performance of Talb-e-Ishhad becomes meaningless, but still for brevity's sake, a little discussion on the same would be in the fitness of circumstances. Both in his plaint as well as in his statement, the respondent/ plaintiff alleges to have sent notice Talb-e-Ishhad in the name of the petitioner/ defendant duly signed by him as well as his two witnesses namely, Abdul Latif Khan (PW-9) and one Amanullah Khan under registered AD cover. Abdul Latif Khan turned up in the witness-box as PW-9 and stated to have signed the notice Talb-e-Ishhad on 4.3.1999 at 04:00 p.m. Along with the respondent/pre-emptor and the other witness Amanullah Khan. However, he was not confronted with the alleged notice Talb-e-Ishhad to confirm his signature thereupon. Such slip on the part of the preemptor would certainly raise serious questions as to whether PW-9 had indeed put his signature on the notice Talb-e-Ishhad on 4.3.1999 and more so when he was recording his statement after about seven long years on 19.1.2007. Thus the testimony of PW-9 to have signed the notice Talb-e-Ishhad sent in the name of the petitioner stands disbelieved.
9. Regarding the other attesting witness namely, Amanullah Khan, the pre-emptor stated as PW-7 that he had died and could not be produced and in this respect he produced a death certificate (Ex.PW-7/2). The said document did not form part of the list of documents submitted by the pre- emptor but rather the same was procured at the eleventh hour by him because as per the said certificate, the date of death of Amanullah Khan is 12.6.2006 and the matter was reported and entered in the record of the concerned Union Council Kulachi on 16.1.2006 i.e. Three days prior to recording of statement by the pre-emptor on 19.1.2007. The same per se raise eyebrows about the veracity and authenticity of the said death certificate and more so, when none from the office of the concerned Union Council appeared before the learned trial Court in support of the said death certificate. As such the performance of Talb-e-Ishhad also stands disproved.
10. Since both the sine qua none for the success of a preemption suit stood disproved, therefore, the fate of the suit of the respondent/plaintiff could be none other but dismissal.
11. In view of the above stated position, the learned Appellate Court seriously erred under the law while decreeing the suit of the respondent/plaintiff against the petitioner. Such findings have resulted into grave illegality and material irregularity thereby causing ' miscarriage of justice.
' Resultant, this revision petition is allowed, the impugned judgment and decree of the learned Appellate Court dated 16.3.2009 is set aside and that of the learned trial Court dated 20.3.2007 dismissing the suit of the respondent/ plaintiff stands restored with no order as to costs.