ABDUL LATIF KHAN, J.---This revision petition has been preferred against the judgment and decree dated 24.01.2014, passed by learned Additional District Judge-VIII, Mardan, whereby the appeal filed by petitioner against the judgment and decree dated 18.09.29013 passed by learned Civil Judge/trial Court Peshawar, was dismissed.
2. Brief facts of the case are that petitioner instituted a suit for pre-emption regarding land fully described in the heading of the plaint, against respondent, which was contested by respondent through filing written. Statement. After recording pro and contra evidence the learned trial Court dismissed the suit of petitioner vide judgment and decree dated 18.9.2013. The appeal filed by petitioner was also dismissed by learned appellate Court through impugned judgment dated 24.1.2014, hence the instant petition.
' Arguments heard record perused.
3. A perusal of record reveals that the plaintiff filed a suit for possession through pre-emption, in respect of disputed property sold vide registered deed No,1035 attested on 7.12.2011. It is averred in the plaint that on 22.12.2011 at 11.00 AM, plaintiff was present in his house situated in village Hamza Khan when his brother Muhammad Iqbal Shah disclosed to him that Fazal Qadoos defendant has purchased the property from Dilawar Shah son of Bahadar Shah, who there and then announced his intention to pre-tempt the sale and later on 27.12.2011, notice of `Talb-e-Ishhad' was ' scribed in Kachehri Mardan, duly attested by two witnesses and mailed to the defendant through registered A.D. The plaintiff has reiterated his stance taken in the plaint while deposing as PW.6. He was subjected to a very taxing and searching cross-examination but nothing adverse to the stance taken in the plaint, has been brought on the record. The portion of cross-examination of PW.6 prevailed with the Courts below to non-suit the plaintiff on the ground that his son, daughters and wife were present at the time of making `Talb-eMuwathibat ' who were not cited as witnesses and as such withheld the best evidence, is misplaced, for the reason that it is not found mention in this part of cross-examination that they were present at that particular Warns' of making 'Talb-e- Muwathibat'. Needless to say that if an incident takes place in one part of the house, it is not necessarily be termed that persons present in other part/rooms etc of the house would definitely know about the incident and for that matter the plaintiff was not under obligation to cite them as witnesses. The plaintiff was when further subjected to cross-examination by the defendant, he deposed with clarity that apart from informer lqbal Shah, none was present at the time of making Talb-e-Muwathibar and that is why he has neither cited as witness anyone from inmates in the plaint nor in the notice of `Talb-e-Ishhad'. In reply to another question he deposed that he was sitting in a cot in the courtyard of the house however he did not remember the side which he was facing at that time and his minor children were present in the courtyard. The cross-examination if taken in juxtaposition would definitely lead to the conclusion that the plaintiff has fully corroborated the stance taken in the plaint and has not deposed that his son, three daughters and wife were present in the `Majlis' in the courtyard of his house so he cannot be non-suited merely on the ground that his wife, three daughters and son were present in other parts of the house.
Moreover the plaintiff has replied to a question that he filed the suit on 23.12.2011 however he further deposed that he has rightly put his signature on the plaint on 14.1.2012, which stance can be affirmed on perusal of the plaint that the same was signed by the plaintiff on 14.1.2012. So far as the date 23.12.2011 is concerned, none of the incident in the entire episode took place at that particular date and as such this cannot be termed an admission on the part of plaintiff and at the most be considered as a slip of tongue for which right of the plaintiff to pre-empt, being substantive one, duly recognized by the Islamic Law, cannot be defeated.
4. Needless to mention that discrepancies and minor contradictions arising out of the evidence recorded after considerable time are but natural and the g witness cannot be expected to give stereotype evidence after lapse of considerable time. The informer who happens to be the brother of plaintiff residing in the same house, has fully supported the stance of the plaintiff. No question was put to the said witness about presence of wife, son and three daughters of plaintiff at the time of making `Talb-e-Muwathibat' by the plaintiff in that particular 'Majlis' however he has supported the version of plaintiff that he was sitting alone in the Cot in the courtyard of the house meaning thereby that none of the above referred persons/inmates of the house were present at the time of `Talb-e- Muwathibat'. The cross-examination of the parties has to be considered as statement of the party and as such the plaintiff has implicitly and admitted that none of the inmates of the house were present in the Majlis' at the relevant time and as such the Courts below have misread the evidence available on file to this effect.
5. So far as the contradictions prevailed with the Courts below inter se PW.6 and PW.7 regarding children of the plaintiff is concerned, it cannot be termed even as minor contradiction for the reason that PW.7 has deposed that the children of the plaintiff had gone to school while plaintiff has stated that his minor children were present in the courtyard of the house. The word 'minor' is of great significance in the matter as the school going children as deposed by informer, might have gone to the schools but minor children were present in the house so in no eventuality it cannot be termed even as minor contradiction and this aspect of the evidence has also been misread by the Courts below. Judicial wisdom prefers to ignore such minor discrepancies in the statement of witnesses and only grave contradictions and dishonest improvements are to be taken into consideration in the evidence of the witness and as such findings of Courts below on the point of `Talb-e-Muwathibat' are not immune from corrective process by the High Court under section 115, C.P.C.
6. So far as the notice of `Talb-e-Ishhad' is concerned, the defendant has not specifically denied receipt of notice of 'Talb-e-Ishhad' in his written statement. While cross-examining the plaintiff, no specific question was put to the plaintiff that he has not mailed the notice of Talb-eIshhad' to the defendant rather trend of cross-examination shows that defendant has implicitly admitted the receipt of notice 'Talb-e-Ishhad'. He has also admitted in his Court statement (DW.1) about mail of notice of 'Talb-e-Ishhad' by the plaintiff.
' The defendant has not denied the receipt of notice in his examination in chief and instead admitted in cross-examination his signature on the A.D. Card which has been posted as Ex.PW.2/3.
He has also admitted the receipt of notice of `Talb-e-Ishhad' through postman. Sher Wali Branch Post Master was examined as PW.2, who deposed that he personally went to the house of defendant and delivered the registry and obtained signature from the defendant on original A.D.
Card and posted all these documents as Ex.PW.2/1 to Ex.PW.2/4. He further deposed that defendant is personally known to him which shows that the notice of Talb-e-Ishhad' was properly sent through registered post and admittedly received by defendant. Though the plaintiff has produced one witness of notice of Talb-e-Ishhad' in the evidence and specifically stated that the other witness was not available with him to be produced as witness, as has been won over, so keeping in view the peculiar circumstances of the case when the receipt of notice has been categorically admitted by defendant, the deficiency of non-production of one of the witness would not-come in the way of plaintiff as sufficient proof plus admission of defendant is available on file, showing that defendant was duly served with the notice of Talb-e-Ishhad' and as such the plaintiff has properly complied with the provisions of Section 13(3) KPK Pre-emption Act, 1987.
7. So far as waiver of right of preemption is concerned, the Courts below have taken the matter while deciding issue No,4 from a wrong angle relying upon the statement of nephew of the plaintiff who deposed as DW.2, happens to be son of the vendor. His total deposition is departure from the stance of defence taken in the pleading. His statement if taken into consideration on the face of it does not constitute the essential requirements of waiver laid down under section 15 of KPK Pre- emption Act, 1987. It is not the case of defendant that an offer was made to the plaintiff/prospective .Pre-emptor prior to actual sale nor there exists any cogent and tangible evidence to this effect on file however general defence of waiver had taken by defendant which has not been proved in accordance with law. The statute has provided specific provision regarding offer of purchase to be routed under a mechanism provided under section 12 of KPK Pre-emption Act, 1987 which is lacking in the instant case and mere assertion of the defendant could not be termed as waiver as no action or inaction indicative of the true intention of prospective pre-emptor has been proved to have made on his behalf in the light of available evidence and as such the findings of Courts below to this effect are also not sustainable under the law.
8. The plaintiff has claimed the market value Of the suit property as Rs,1,00,000/- however no evidence to this effect has been produced. Registered deed available on file reveals that sale consideration was paid in good faith by defendant to the vendor to the tune of Rs,1,50,000/- and there is nothing in rebuttal therefore it is held that sale consideration of Rs,1,50,000/- was paid in good faith as market value of the suit land.
9. So far as right of pre-emption is concerned, the revenue record available on file shows that both the parties are co-sharers in the property in dispute and are equally such to the right of pre- emption and as such the disputed property shall be distributed among them equally in share as laid down in Section 9 r/w Section 20 of NWFP Pre-emption Act, 1987. The plaintiff is directed to deposit amount of sale consideration to the extent of half of the sale consideration to the tune of I Rs,75,000/- as per his equal share in the suit property within 30 days of this order failing which the suit shall stand dismissed.
10. For the aforesaid reasons, the instant petition is allowed and the judgments and decrees passed by Courts below are set aside and suit of the plaintiff is partially decreed to the extent of half share of suit property on payment of Rs,75000/-, half of sale consideration.