MUHAMMAD GHAZANFAR KHAN, J.---Through the instant revision petition, the petitioners have called in question the judgment and decree dated 30.01.2014 passed by learned Additional District Judge-IV, D.I.Khan, whereby on partial acceptance of their appeal to the extent of payment of taxes by respondent to them, the remaining judgment and decree of learned Civil Judge-VI, D.I.Khan dated 29.7.2011 was maintained.
2. The brief facts giving rise to the instant revision petition are that the respondent filed a suit against the petitioners for possession through preemption of land measuring 11 kanals 03 marlas situated in mouza Mandhra Kalan, District D.I.Khan sold through registered deed No.518 dated 21.02.2008 for sale consideration of Rs.2,23,000/- but an exaggerated amount of Rs.6,60,000/- was entered therein. The respondent alleged that he got knowledge of the transaction on 01.4.2008 at about 5 PM (digar-vela) at his own house through Munawar Hussain and there and then declared his intention to preempt the suit land and on 03.4.2008, sent notice talb-e-ishhad to petitioner through registered post.
3. The suit was contested by petitioner by filing written statement. The learned trial Court framed 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-VI, D.I.Khan decreed the suit of respondent vide judgment and decree dated 29.7.2011.
4. Dissatisfied with the judgment and decree dated 29.7.2011, the petitioners preferred an appeal.
The learned Additional District Judge-IV, D.I.Khan partially accepted the appeal to the extent of payment of taxes by respondent whereas maintained the remaining judgment and decree vide impugned judgment and decree dated 30.01.2014.
5. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.
6. Perusal of the record reveals that both the learned Courts below have concurrently held that the respondent/ plaintiff has successfully proved the performance of talb-e-muwathibat and talbe- ishhad in accordance with section 13 of the N.-W.F.P. Pre-emption Act, 1987 and thus decreed his suit, but failed to observe that in the present case, notice talb-e-ishhad was scribed on a printed form by filling blank places with particurars of the instant case which is against the mandate of section 13 of the NWFP Pre-emption Act, 1987. The Act provides a special procedure of making talb- e-muwathibat and talb-eishhad, the latter by sending notice in writing attested by two truthful witnesses declaring his intention to exercise right of pre-emption. Since the notice is in cyclostyle form and not "in writing", therefore, it cannot be considered as confirmation of talb-e-muwathibat as per the mandate of the Act ibid. Reliance in this respect is placed on 2014 MLD Peshawar 114. So, it can be safely held that respondent/plaintiff has not been able to prove the performance of talb- e-ishhad in accord with law and his suit was wrongly decreed by both the Courts below.
7. The learned counsel for the respondent/plaintiff mainly stressed that the learned appellate Court has not disposed of the application for appointment of local commission which was necessary for determination of improvements made in the suit property. After giving anxious thought to the arguments of learned counsel for the respondent/plaintiff, I am of the opinion that as prior to proving the improvements that whether those were made prior to the issuance of notice talb-e- ishhad or afterwards, the respondent/plaintiff has to prove the factum of talbs, which has not been proved, therefore, there was no necessity to appoint local commission as it would have served no useful purpose. The judgments of both the Courts below are the result of misreading non-reading of evidence and misinterpretation of law on the subject.
8. For the reasons mentioned above, the instant revision petition is accepted, the impugned judgments and decrees of the Courts below are set aside and suit of the respondent/plaintiff is hereby dismissed with no order as to costs.