ABDUL SHAKOOR, J.- Through instant Revision Petition, the petitioner has assailed the concurrent judgments and decrees of learned Civil Judge- Sarae Naurang dated 28.02.2014 and that of learned Additional District Judge-II, Lakki Marwat dated 11.05.2015, whereby the former dismissed the suit of petitioner/plaintiff, while the latter upheld the judgment and decree of the trial Court.
2. Succinct facts giving rise to filing of the instant revision petition are that Taj Muhammad, the plaintiff, now petitioner instituted a suit for possession through exercise of right of pre-emption against the respondents/ defendants, who are vendee of the suit land under mutation No.540 attested on 24.05.2011, on the sale consideration of Rs.22950/-, but to defeat the pre-emption right of plaintiff/ petitioner a fancy amount of Rs.61200-/- was entered.
3. As per averments of the plaint, the petitioner/plaintiff came to know about the suit sale on 11.06.2011 (Saturday) at 09.00 hours at his baithak, situated at village Nar Hakim Khan, Sarae Naurang through Sabirullah, in presence of Tahirullah. He allegedly performed Talb-e Muwathibat, there and then, in presence of above named witnesses.
Later, on 13.06.2011, in confirmation of the first Talb, the petitioner/plaintiff sent to the vendees/ defendants notice Talb-e-Ish'had, which were duly attested by the two marginal witnesses. He averred in his plaint that he is entitled to perform exercise of right of pre-emption on all the three grounds available under the law.
4. The averments of the plaint were controverted by defendants/respondents in their written statement raising therein various objections legal as well as factual. The controversial pleadings of the parties resulted into framing of issues. Pro and contra evidence were recorded. On conclusion of trial learned trial court, dismissed the suit of petitioner/ plaintiff vide judgment and decree dated 28.02.2014. Not contented with the judgment and decree of learned trial court, the petitioner/ plaintiff assailed the same through appeal before the learned Additional District Judge-I, Lakki Marwat, who after hearing arguments of learned counsel for the parties,dismissed the appeal, vide impugned judgment and decree dated 11.05.2015, hence, the instant revisio n petition.
5. Arguments heard and record perused.
6. It is requirement of law under section 13 of Khyber Pakhtunkhwa Pre-emption Act, that after making Talb-e- Muwathibat intending pre-emptor shall affirm his intention not only in pleading but also has to prove this fact through producing evidence and in the instant case pre-emptor has not complied with this legal requirement in accordance with law, as the PW-1, Taj Muhammad, stated that he asked about talb and given chit of patwari halqa to the Ariaz Nawees to write notice Talb-e-Ish'had, meaning thereby that, the plaintif f neither stated that he in confirmation of intention to exercise his right of pre-emption had sent notices Talb-e-Ish'had. PW-5, Tahirullah and PW-6, Sabirullah marginal witness to the notice Talb-e- Ish'had, also stated that the petitioner/ plaintif f informed the Araiz Nawees regarding Talb and given chit of patwari halqa to scribe notice Talb-e-Ish'had, thus Talb-e-Ish'had has not been proved in accordance with requirements of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
In this respect verdict laid down by the honourable Supreme Court in case titled "Muhammad Zahid Vs Dr. Muhammad Ali", (PLD 2014 Supreme Court 488) , wherein it is held that: "7. The respondent stated in his evidence recorded in the Court that he signed and sent notice to the vendee but he did not state anywhere that he confirmed his intention to exercise his right of pre emption.
Talb-i-lshhad which, in fact, is confirmation of intention to exercise a right of pre-emption cannot be held to have been established by mere signing and sending of notice . The witnesses examined in the Court, too, did not state anything regarding confirmation of such intention." (underline for emphasis)
7. The respondents categorically denied receipt of notice Talb-e-Ish'had in their written statement as well as in their statement recorded on oath, in such state of affairs, the petitioner/ plaintiff was under legal obligation to produce postman, as held by the Hon'ble Supreme Court in case titled "Muhammad Bashir and others Vs Abbas Ali Shah (2007 SCMr 1105), Relevant portion of judgment is reproduced as under: "While there is no cavil with the prop osition that in terms of Article 129 of the Qanun-e-Shahadat Order read with Section 27 of the General Clauses Act, a presumption of service does arise if a notice sent through registered covered acknowled gement due is received back with the endorsement of "refused" by the postal authorities, but if the addressee appears in Court and makes a statement on oath disowning receipt of notice, the presumption under the afore referred provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the post man who made the endorsement.
8. The petitioner/ plaintif f produced one Samiullah, clerk of Post office Lakki Marwat, as PW 1, who during cross-examination has categorically disclosed that he is unable to state that the envelop was delivered to the respondent/ defendant or not. He also produced one Lal Khan Postman, Sarae Naurang, as PW-3, who also stated that during the days of sending notices, he was not posted there nor he delivered the registered envelop to respondents/ defendants, rather one Misal Khan was posted as delivery clerk, but the petitioner/ plaintiff did not produce the said relevant delivery postman. In such a situation, it was incumbent upon the petitioner/ plaintiff to produce actual postman who allegedly delivered the registered envelop to the respondents/ defendants, in order to prove service/delivery of notices Talb-e-Ish'had in compliance of the principle set by the Hon'ble Supreme Court cited above. Consequently, the petitioner/ plaintiff has failed to prove performance of Talb-e-Ish'had in accordance with law.
9. So far as contention of learned counsel for petitioner that notice was sent to the respondent through registered AD on their correct address, which were duly served, hence, there is no need to produce the post man. When one goes through the AD cards, all the three contain same signature, meaning thereby that these were received by one person, but his name has not been written, nor concerned delivery post man produced in order to substantiate that the same were delivered to whom, either he was one of the respondents/ defendants or any other person. Hence, it cannot be determined at this stage, due to lack of evidence, that to whom the same were delivered. Whereas the respondents/ defendants in their written statement as well as in statement on oath have denied receipt of notice Talb-e- Ish'had, which shift onus to the petitioner to prove the negative stance by producing post man, but the petitioner has failed to produce concerned post man.
10. It needs no emphasis that for successful exercise of right of pre-emption, the proof of performance of Talb-e- Muwathibat and then Talb-e Ish'had, in their respective chronological order , is essential. Any deficiency in these legal requirements will render a pre-emption suit liable to an outright dismissal. As in the instant case, the plaintif f has failed to prove delivery of notice Talb-e-Ish'had in accordance with the provisions of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
11. The scope of revisional jurisdiction is very limited in which the court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor it can upset the same, unless these findings are shown patently illegal, without jurisdiction, based on conjectural presumptions or erroneous assumption. No such infirmity has been pointed out by the learned counsel for the petitioner in the impugned judgments, which may warrant interference of this Court in its revisional jurisdiction. In this regard reference can be made to case titled " Muhammad Rashid Ahmad VS. Muhammad Saddique" (PLD 2002 SC 293) and " Muhammad Idrees and others VS. Muhammad Pervaiz and others" (2010 SCMR 05).
12. In light of the above, the suit of the petitioner/ plaintif f is not sustainable. The learned both the Courts below have rightly dismissed the suit of petitioner /plaintif f by rightly relying on the well settled principle laid down by the apex Court. Hence, this petition being devoid of merits, stands dismissed. No order as costs.