MOHAMMAD IBRAHIM KHAN, J.---On a perceptive information of the sale activities under the pre- emption given effect through registered deed No,2 dated 22.12.2009 and partly by an unregistered deed (oral agreement) whereby an amount of Rs,14,00,000 (fourteen lacs) were determined as sale consideration for purchasing of land measuring 6 Kanals 18 Marlas and 4-1/2 Sarsai bearing Khasra No,2054 Khata No,505/1075 as per Jamabandi for the year 2008-09 village Chak Nodo Tehsil and District Swabi. The petitioner on 24.03.2010 at about 20:00 hours for pre-requisite sine qua non requirements on lore from Gul Rehman and in the presence of his brother Said Kamal is said to have made Talb-i-Muwathibat within the stipulated time. The notice under Talbi-Ishhad, witnessed by the marginal witnesses was sent up to the respondents through registered AD. The petitioner has the right to pre-empt being Shaft-Sharik, Shaft Khalit and Shaft Jar. The respondents after the notice was sent were asked for that having preferential right, the sold out land be mutated in his favour but on prevarication suit for pre-emption was instituted as the requirement of Talb-iKhusumat.
2. This suit was hotly resisted on many legal and factual objections. After the pleadings of the parties were drawn up, as many as 10 in number issues were framed. These are:-
1. Whether the plaintiff has got a cause of action?
2. Whether the instant suit is within time?
3. Whether the plaintiff has been estopped to sue due to his own words and conduct?
4. Whether the plaintiff has made the talbs in accordance with law?
5. Whether the plaintiff has waived of his right of pre-emption by refusing to purchase the suit property earlier?
6. Whether the plaintiff has got superior right of pre-emption?
7. Whether the defendants have purchased property measuring 04 Kanal 09 Marlas 2- 1/4-Sarsai?
8. What is the market value of the suit property?
9. Whether the plaintiff is entitled to the decree as prayed for?
10. Relief.
Every fair opportunity was afforded to the parties to adduce their evidence. The petitioner caused to examine PW-1 Muhammad Hamayun Record Keeper, PW-2 Jehan Iqbal Patwari Halqa, PW-3 Ijaz Ullah Registration Office Moharrir, again as PW-3 Nisar Muhammad Khan Postman (Post Office Charbagh), PW-4 Muhammad Shoaib (petitioner), PW-5 Gul Rehman while PW-6 Said Kamal (PW- 5 and 6 are the witnesses to the Talbs).
3. On the other side Zubair Ali Record Keeper examined as DW-1, Zamin Khan supporting him and as attorney of the respondents, DW-3 Malik Aman and DW-4 Muhammad Yasin (DW-3 and DW-4 are witnesses to the registered deed).
4. The judgment and decree in the Civil Suit No,86/1, given effect by the decision on 27.04.2012, whereby the learned trial Court in view of failure in utter performance of the Talbs in accordance with law, dismissed the suit. These findings were assailed before the Court of learned Additional District Judge-IV, Swabi whereafter anxious thoughts, the learned appellate Court was also convinced that the Talbs were not performed in the mode and manner required to be, hence the appeal devoid of merits was dismissed.
5. This Revision is for the prayer calling for setting aside both the impugned judgments and decrees dated 27.04.2012 and 10.06.2014, passed by the learned lower Courts.
6. Before the evidence led of the parties as to waiver of the rights by the pre-emptor on refusal to purchase of the suit property and the making of Talbs are discussed. It is equally important to assure that the sale under pre-emption where there is a specific issue No,7 (Whether the defendants purchased the property 3 Kanals 9 Marlas 2-1/4 Sarsai) is to be commentated.
It's absolutely loud and clear that the sale document i,e, the registered deed is entered for the share of Muhammad Qadar coming out to be 3 Kanal 9 Marlas 2-1/4 Sarsai while the sale consideration is 14 lacs. Neither the petitioner nor the respondents have given any evidence by introducing another sale deed by way of purchase through a stamp paper or else even there is oral evidence of any sale on behalf of Malik Aman brother of Muhammad Qadar, sons of Firdous.
Rather any other transaction than the registered deed has categorically been denied by Malik Aman appearing as DW-3. So it is held that there is only one sale transaction in the form of registered deed No,2 dated 22.12.2009.
7. Counsel for the parties are conciliatory and supportive of the findings of the learned lower Courts in declaration of the preferential right of the petitioner on account of being co-sharer in the suit land while the respondents have got no such right in the suit property, and that the market value of the suit land under preemption is Rs,14,00,000/- (fourteen lacs) as determined in the registered sale deed to which presumption of truth has been extended.
8. In order to determine the controversy pertaining to the waiver of right of pre-emption while the record was delved deep into no notice of intention to sell the property in question is available on the record. According to Section 12 of the N.-W.F.P. Pre-emption Act, 1997 which reads:--
12. Notice of intention to sell.---(1) Where any person proposes to sell immoveable property in respect of which a right of pre-emption exists, he shall give notice to all such persons having such right of the price at which he is going to sell the property.
(2) The notice under subsection (1) shall be given through any Court within the local limits of shoes jurisdiction such immoveable property is situated and shall be deemed sufficiently given if it be stuck upon the main entrance of a mosque and on any other public place of the village, city or place where the property is situated.
It was mandatory that the vendor Muhammad Qadar shall have given notice to all such persons including the petitioner Muhammad Shoaib having such right for its purchase through the processes to be adopted under Section 12 subsection (2) of the pre-emption Act. It was also mandatory that the Registrar registering the sale deed shall have given notice to the general public within two weeks of the registration of attestation in the mode and the manner as given under the provisions of Section 32 of Pre-emption Act. There is no evidence whatsoever that the Sub-Registrar of the office of the Registration District, Swabi had after the sale deed was registered given any such like notice. Mere statement of the witnesses of the respondents that prior to the sale of the land under preemption, the petitioner being Bank Manager was offered the purchase of land when had visited (Scheduled Bank) of his work place.
It is difficult to waive of the right of the petitioner which shall stand as an estopple in the way of introducing his suit to exercise his right of pre-emption. Therefore, any finding of the learned trial Court as well as of the learned appellate Court will not create hurdle for the petitioner disregardful to be non-suited.
9.Coming to the irremissible provision of Section 13 whereby the right of pre-emption shall only be carried on by a person who makes demand of pre-emption in the following order:-- (a)Talb-i-Muwathibat (b)Talb-i -Ishhad (c)Talb-i-Khusumat There are plethora of judgments of the Hon'ble superior Courts defining Talb-i-Muwathibat. Some of the classy verdicts are contained in PLD 2015 Supreme Court 69 (Subhan-ud-Din and others v. Pir Ghulam), 2005 SCMR 1231 (Muhammad Siddique v. Muhammad Shari}), 2004 SCMR 737 (Muhammad Hussain v. Manzoor Hussain), 2003 CLC 282 (Ali Muhammad v. Ghulam Muhammad), 1992 SCMR 1886 (Zafar Ali v. Zain-ul-Abideen), PLD 2007 Supreme Court 302 (Mian Pir Muhammad v.
Faqir Muhammad), PLD 2003 Supreme Court 315 (Haji Muhammad Samin v. Khuda Bakhsh), 2011 MLD 974 (Mst. Balori v. Jillani), 2002 MLD 118, 1995 SCMR 1510 (Muhammad Ramzan v. Lal Khan), PLD 2010 Peshawar 65. The wisdom contained in all these judgments would reveal that besides the statutes phraseology the first demand has ever been given immense importance. This demand (Talb-i-Muwathibat) means immediate demand by a pre-emptor in the setting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre- emption. Any word indicative of intention to exercise the rights of pre-emption are sufficient.
10. In this case Muhammad Shoaib petitioner vide his notice of Talb-i-Ishhad indicating his intention to exercise his right of pre-emption on 24.03.2010 at the relevant time of 20:00 hours at sham vila in the house of Gul Rehman, before him and in the presence of his brother Said Kamal made Talb-i-Muwathibat. To substantiate the Talb-i-Muwathibat, Muhammad Shoaib petitioner herein while recording his statement as PW-4 has said all about in his examination in chief while there is no effective cross-examination of making Talbi-Muwathibat at a time other than 20:00 hours on 24.03.2010. The confederate witness PW-5 Gul Rehman in whose house when the petitioner Muhammad Shoaib and his brother Said Kamal for the purpose to inquire his health were present there, the information about the sale was conveyed by him. This witness in the very opening question and answer session (cross-examination) has candidly admitted that the day on which the registered deed was effected there and then he had come into knowledge and on the said date he had informed the petitioner Muhammad Shoaib. PW-6 brother of the petitioner by the name of Said Kamal in his examination in chief narrated the version of Gul Rehman and in his cross-examination, he has also come up specklessly and squeaky saying like that on coming to know about the registered deed the said Gul Rehman had informed the petitioner. There is also stoppage deposition in the statement of DW-3, Malik Aman that on the date of registration of the sale deed, it was Gul Rehman who had informed the petitioner. In conjunction with, DW-4 Muhammad Yasin who is witness to the sale deed that while Said Kamal, Gul Rehman were setting in a shop it was Gul Rehman who has asked for whether the registered deed has been attested who was informed about its registration. All the evidence above would lead to an inference that the petitioner Muhammad Shoaib was prior in knowledge being informed by Gul Rehman before the said date (24.03.2010). Thus at the right time of obtaining the knowledge by the petitioner about the dale of the land under preemption, it was incumbent upon the petitioner to have met the jumping demand and on its failure the Talb-i-Muwathibat has not been proved as required under the pre- emption law.
11. The other demand of Talb-i-Ishhad when Notice was drafted on 30.03.2010 while the Talb-i- Muwathibat was required on 22.12.200- the date on which the registered deed was attested, the compass of limitation of 14 days was also over as by maximum Talb-i-Ishhad Notice was required to have been served by 05.01.2010. Thereby this demand of Talb-iIshhad is yon of time.
12. Indeed, the institution of suit for the exercise of right of pre-emption on 12.04.2010 from the date of the registration of the sale deed on 22.12.2009, the requirement of Talb-i-Khusumat has been met well within time.
13.While the revisional jurisdiction of the High Court is ferret out, contrary to the concurrent findings of the learned lower Courts which are based on facts, shall not be strike down unless there is convincing evidence available on record that the findings are perverse, fanciful, erroneous and based on misreading and non-reading of evidence. This shall be the ultimate spirit under exercise of the poweri of revisional jurisdiction that the Courts having dismissed the suit followed by the appeal the findings, delivered there suffer from controversial defect material irregularity and illegalities. In support the dictum of the Hon'ble Supreme Court of Pakistan contained in 2010 SCMR 5 (Muhammad Idrees and others v. Muhammad Pervez and others) and 2013 MLD 1473 Peshawar (Muhammad Zahoor thrqugh LRs, v. Muhammad Abid Qayyum and another) are invaluable.
14. There is no scope for to interfere with the concurrent findings of the learned Courts, hence this revision petition stands dismissed.