QAISER RASHID KHAN, J.---Through this single judgment I intend to decide C.R. No. 381/2007 titled "Muhammad Ramzan v. Alla-ud-Din and another", C.R. No. 22/2008 titled "Sahib Khan v. Alla-ud-Din and another" and C.R. No. 10/2008 titled "Alla-ud-Din v. Muhammad Ramzan and another" as all the revision petitions are the outcome of the judgment and decree dated 15.11.2007 of the learned Additional District Judge-V, D.I. Khan.
2. Concise facts leading to the instant petition are that initially the petitioner/ plaintiff namely, Muhammad Ramzan, filed a suit for possession through pre-emption in respect of land measuring 163 Kanals-14 Marlas situated at Mauza Kulachi Sharqi, Tehsil Kulachi District D.I.Khan as detailed in the plaint against vendee Alla-ud-Din and mutated in his name through mutation No. 3935 attested on 28.6.1997 for a saleconsideration of Rs.16370/- but in order to forestall the superior pre- emptive rights of the petitioner qua the vendee on the basis of co-sharership, contiguity, immunities and appendages to the suit land, the sale of the suit land was termed as an exchange; that the petitioner-plaintiff came to know of the suit sale on 22.7.1997 at 02:00 pm at his `Baithak through his son Muhammad Aslam and he immediately declared his intention to pre-empt the property and thus performed Talb-e-Muwathibat and accordingly issued notice 'Talb-e-Ishhad' to the vendee, Alla-ud-Din under registered A.D. Cover duly attested by two witnesses namely, Khalid Khan and Zewar Khan. In his amended plaint, he also impleaded Sahib Khan, being the rival pre- emptor. Similarly, the real brother of Muhammad Ramzan and rival pre-emptor namely, Sahib Khan, petitioner in C.R. No. 22/2008 as a rival pre-emptor also filed a suit for possession through pre-emption in respect of the same very property against the respondents Alla-ud-Din etc averring in the plaint that the respondent No.1 purchased the property from the vendors through mutation No. 3935 dated 28.6.1997 but in order to defeat the superior right of preemption of the petitioner, the sale was given the colour of exchange and with the connivance of the revenue staff exchange mutation No. 2926 dated 5.7.1997 was attested. Regarding `Talbs' Sahib Khan averred in his plaint to have got knowledge of the suit sale on 8.8.1997 at 08:00 am at his house through Alla- ud-Din Khan whereafter he declared his intention to preempt the property and thus performed Talbe-Muwathibat and afterwards in the presence of witnesses, he issued notice Talb-e-Ishhad under the registered A.D. Cover to the respondent No.1.
3. The parties were summoned, boththe suits were consolidated, written statements were called from the parties in both the cases and keeping in view the divergent pleadings of the parties consolidated issues were framed and after recording pro and contra evidence vide a consolidated judgment and decree dated 26.1.2007, the learned Civil Judge Kulachi (D.I.Khan) decreed the suit of the petitioner Muhammad Ramzan against the respondent No.1 and dismissed the suit of the rival preemptor Sahib Khan. Against the said judgment and decree, two appeals titled "Sahib Khan v.
Alla-ud-Din and another (C.A No. 16/2007) and "Alla-ud-Din v. Muhammad Ramzan etc. (CA No. 17/2007) were preferred before the learned Appellate Court and after hearing the parties, the learned Additional District Judge-V D.I.Khan through a single judgment held Sahib Khan petitioner to have established his case and by modifying the judgment and decree of the learned trial court, held the suit property to be equally distributed between the pre-emptor Muhammad Ramzan and rival pre-emptor Sahib Khan and also dismissed the appeal of Alla-udDin appellant. The said judgment and decree of the learned Appellate Court has in turn been challenged both by the petitioner and the petitioners in the connected petitions before this court.
' Detailed arguments of the learned counsel for the parties heard and the available record minutely perused with their valuable assistance.
4. In the first hand it would be more a
(ii) Talb-e-Ishhad, i.e. Demand by establishing evidpt to revert back to the plaint of the petitioner Muhammad Ramzan and that too in the light of section 13 of the NWFP Preemption Act, 1987 which envisages that the right of pre-emption of a person shall be extinguished unless he makes demands ofpre-emption in the following manner, namely:--
(i) Talb-e-Muwathibat, i.e. Immediate demand by a pre-emptor in the same sitting/majlis where he came to know about the sale transaction declaring his intention to exercise of his right of preemption;ence and,
(iii) Talb-e-Khasumat, i.e. Demand by filing a suit.
5. The petitioner alleged knowledge about the suit sale on 22.7.1997 at 02:00 am at his `Baithak' through his son Muhammad Aslam and that he accordingly performed Talb-e-Muwathibat by declaring his intention to pre-empt the suit sale and thereafter performed Talb-e-Ishhad by sending notice under registered A.D. Cover duly attested by two witnesses namely, Khalid Khan and Zaiwar Khan, in the name of the respondent, Alla-ud-Din which the latter refused to receive.
However, the preemptor Muhammad Ramzan did not mention the date of notice Talb-e-Ishhad in the plaint thereby causing irreparable damage to his suit in the light of the judgments of the august apex court.
6. During the course of evidence, petitioner Muhammad Ramzan did not appear before the court himself in support of his case but instead his son Muhammad Aslam appeared as his special attorney and was examined as PW-7. He narrated the details of the plaint regarding his information to his father about the suit sale and his performance of Talb-e-Muwathibat. However, he tried to make up for the damage caused by mentioning the date of issuance of notice Talb-e- Ishhad in hisstatement. He, however, did not say a word as to how he came to know about the suit sale before informing his father Muhammad Ramzan.
7. No doubt, in normal course, a party to a suit can be represented through his attorney. However, it needs no reiteration that exercising the right of preemption is something most personal to the pre- emptor and as long as there is no disability pleaded on his part whereby he is unable to record the statement himself, the attorney cannot vouch for his such performance of Talb-e-Muwathibat which lies in the heart of the claimant to such right. In the absence of any explanation as to why the pre-emptor failed to appear before the court himself and that too, in view of the fact that when the attorney not only happens to be his son but also the alleged informer as well, certainly eyebrows can be raised about the performance of Talb-e-Muwathibat as there was no other person present in the 'Baithak' when the alleged declaration was made by the petitioner. The act of the alleged performance of Talb-e-Muwathibat by the pre-emptor appears to be the brainchild of his son Muhammad Aslam as it is he who has all along been found to be running the sh9w right from his information to his father about the suit sale and then going after the witnesses \ of notice Talb-e- Ishhad namely, Khalid Khan and Zewar Khan, so as to procure their attendance before the deed writer as attesting witnesses of notice Talb-e-Ishhad. Such non-appearance of the pre-emptor before the learned trial court has caused a death blow to his- alleged performance of Talb-e- Muwathibat. Reliance in this regard is placed on case law reported in 2007 SCM R 1193 "Mst. Lalan Bibi and others v. Muhammad Khan and others" and 2007 SCM R 870 "Hakeem- ud-Din through legal heirs and others v. To the case of the pre-emptor. Reliance Faiz Bakhsh and others".
9. As far as the performance of Talbe-Ishhad is concerned, in this regard the petitioner Muhammad Ramzan failed to mention the date of notice Talb-e-Ishhad in his plaint. It has by now been consistently laid down in a plethora of case law of the august apex court that non- mentioning of such date in the plaint is fatal to the case of the. Pre-emptor and his suit can be dismissed on this score alone. Reliance in this regard is placed on PLD 2007 SC 302 "Mian Pir Muhammad and another v. Faqir Muhammad through legal heirs and others and 2011 SCM R 1545 "Ghafoor Khan v. Israr Ahmad." Moreover, though the notice Talb-e-Ishhad was allegedly sent by the petitioner but the same was not received by the respondent Alla-ud-Din. The concerned postman was not produced before the learned trial court to have vouched regarding the refusal of the notice Talb-eIshhad by the respondent/ vendee. In the absence of receipt of such notice, the performance of Talb-e-Ishhad stood. Disproved.
10. Now coming to the case of the rival claimant namely, Sahib Khan, who has preferred C.R. No. 22/2008 before this court. As per averments in his plaint, he came to know of the suit sale at his house on 8.8.1997 at 08:00 am through Alla-udDin Khan whereafter he declared his intention to pre-empt the suit property and thus performed Talb-e-Muwathibat and thereafter performed Talb-e-Ishhad in the presence of witnesses. However, neither the name of the witnesses nor the date of issuance of notice Talb-e-Ishhad has been mentioned in the plaint and as per the judgments of the august apex court that the non-mentioning of such particulars is fatal ' Ghafoor Khan's case as mentioned above.
11. Sahib Khan appeared before the learned trial court as R.P.W-2 and stated to have been informed by his son on 8.8.1997 at 08:00 am at his house regarding the suit purchase by the respondent Alla- ud-Din whereafter he performed Talb-eMuwathibat and on 15.8.1997, he issued notice Talb-e- Ishhad to the respondent-vendee duly attested by two witnesses. He however, mentioned the date of notice Talb-e-Ishhad as against his plaint by way of some damage and control.
' During cross-examination he stated to have handed over a chit to the deed writer for noting down the particulars for the purpose of scribing notice Talb-eIshhad. However, in his entire statement he never stated that the alleged notice Talb-eIshhad was received by the respondent. His son namely, Alla-ud-Din, the alleged informer appeared before the court as R.PW-3 and stated to have informed his father on 8.8.1997 at 08:00 a.m. At his house whereafter he performed Talb-empathize and on 15.8.1997, he along with his father and witnesses went to the deed writer Akhtar Munir for drafting notice Talb-e-Ishhad. Both the said PWs were not confronted with the alleged notice Talb- e-Ishhad while recording their statements to verify and testify that they had in fact thumb impressed the same very notice thereby giving rise to obvious doubts regarding their status as witnesses of notice Talb-e-Ishhad. During his cross-examination by the respondent-vendee, the informer Allaud-Din, R.PW-3 stated that on coming to know about the suit sale on 8.8.1997, he accordingly informed his father about the same. He however, spilled the beans on being further quizzed. To a question by the pre-emptor Muhammad Ramzan, Alla-ud-Din talked about his schedule of the said day whereby he went to Bazar on his bicycle at 07:30 am and purchased household items within 5/6 minutes and on the way to the Bazar as well as back home, he did not indulge in any discussion with anyone. The same clearly suggests that on the one hand he pleaded to have come to know about the suit sale on 8.8.1997 and simultaneously did not disclose as to how he came to know about. The suit sale and through which individual when the matter of the suit sale did not come under discussion with anyone in the morning before his meeting with his father at 08:00 a.m. Thus it can be stated with every degree of certainty that the rival pre-emptor Sahib Khan had prior knowledge about the suit sale but he chose 8.8.1997 for the performance of Talbe-Muwathibat by introducing his real son Alla-ud-Din to be his informer. As such the alleged performance of Talb-e-Muwathibat by Sahib Khan,petitioner appears to be a cock and bull story and nothing more. Thus both the pre-requisites for a pre-emption suit i.e. Talb-e-Muwathibat and Talb-e-Ishhad were not proved in accordance with law. In view of the foregoing discussion, both the petitions of petitioner, Muhammad Ramzan bearing C.R. No. 381/2007 and that of Sahib Khan bearing C.R. No. 22/2008 stand dismissed while C.R. No. 10/2008 of Alla-ud-Din petitioner is allowed. Consequently both the impugned judgments and decrees dated 26.1.2007 of the learned Civil Judge Kulachi and that of the learned Additional District Judge-V D.I. Khan dated 15.11.2007 are set aside and accordinglyboth the suits of Muhammad Ramzan and Sahib Khan stand dismissed. No order as to costs.