MUHAMMAD YOUNIS THAHEEM, J.---Through the instant revision petition under section 115 Civil Procedure Code of 1908 petitioner has challenged the judgment and decree of learned appellate Court vide which the judgment and decree passed by the learned Civil Judge-I/Illaqa Qazi Chakdara dated 25.4.2015 was maintained by dismissing appeal of petitioner vide judgment and decree dated 28-09-2015.
2. Brief facts of the case are that respondent No, 1/plaintiff filed a suit for possession through pre- emption on the basis of superior rights of pre-emption after fulfilling the requisite demands as alleged in the plaint.
3. The suit was entrusted to the learned Civil Judge-I/Ilaqa Qazi Chakdara District lower Dir who summoned the vendees/defendants. On appearance they contested the suit and submitted their written statements wherein they raised factual as well as legal pleas by totally negating claim and allegations made by the plaintiff in his plaint with regard to Talbs as well as superior rights etc. In the light of divergent pleading of parties, the learned trial Court framed issues on 27.4.2013 which are re-produced.as below.
Issues 1.Whether the plaintiff has got a cause of action?
2.Whether the plaintiff has fulfilled the obligation of Talbs under section 13 of Pre-emption Act, 1987?
3.Whether plaintiff has superior right of pre-emption to the suit property?
4. Whether the alleged sale consideration by vendee/ defendant, has been fixed in good faith and actually paid, if not, what is the market value of the suit property.
5.Whether the suit of the plaintiff is within time?
6. Whether defendant No,1 has made improvements in the suit property and he is entitled for its compensation in case of decree?
7. Whether plaintiff has waived his right of pre-emption being prior knowledge of sale?
8. Whether plaintiff is entitled to the decree as prayed for?
9. Relief.
4. Thereafter, both the parties produced their respective evidence. After conclusion of trial and hearing arguments, the learned trial Court decreed the preemption suit vide its judgment and decree dated 25.4.2015.
5. The vendee/petitioner being aggrieved from the judgment passed by the learned trial Court/Civil Judge, filed a regular Civil appeal before the Appellate Court learned Additional District Judge Dir lower at Chakdara. During the pendency of the appeal an application was submitted by the appellant/vendee for permission to produce Additional evidence and after hearing both application as well as appeal the learned Appellate Court dismissed the said appeal vide his judgment dated 28.09.2015 impugned herein. The petitioner being dissatisfied from the Judgment and decree of both the Courts below has filed the instant Civil Revision on the ground inter-alia mentioned therein.
6. Learned counsel for the petitioner argued that the judgments of Courts below are the result of wrong exercise of jurisdiction, mis-reading and non-reading of evidence and is the result of wrong . appreciation of the law on the subject. Learned counsel further argued that the learned trial Court while giving findings on issue regarding Talbs i,e, issue No,2, in respect of superior rights i,e, issue No,3 and market value i,e, issue No,4 have fallen into illegality by ignoring the glaring contradictions in evidence produced by preemptor. He added that alleged notice of Talb-i-Ishhad was not delivered to the vendee in person and service upon his son could not be said as lawful. Moreover, the pre-emptor is not a contiguous owner to the suit house as there lies a vacant strip in between the suit house and house owned by plaintiff/respondent No,1 and if respondent pre-emptor is proved to be a contiguous owner then upon proving Talbs was entitled only to half share of the suit house and instead entire house has been decreed in favour of the plaintiff/respondent No,1 and this material fact/legal aspect escaped the judicial notice of learned trial Court as well as Appellate Court. He also argued that during pendency of appeal the present petitioner/appellant has filed an application for .permission to produce additional evidence to prove the vacant strip still owned by respondent No,3 so under the law the appellate Court was bound to decide it earlier before passing judgment on appeal but despite of hearing arguments over the same had not given any finding on the said application rather left it un-decided which is a material irregularity and on this ground alone case be remanded as the vendor/ respondent No,3 has not sold out an area measuring 3 feet in width stretching in length to the extent of his house and is still his ownership so be given opportunity to prove above fact. Lastly learned counsel for petitioner prayed that by accepting the petition this case may kindly be remanded back or the suit of the plaintiff may be dismissed as he has neither fulfilled the requisite demands nor has proved his contiguity.
7. On the other hand learned counsel for the respondent No,1 argued that the judgments and decrees passed by the learned two Courts below are correct and were passed after proper appreciation of evidence and law; there are no contradictions whatsoever in the evidence regarding the Talbs as well as his superior rights. The application for permission to produce additional evidence was heard so sunk with the appeal. Though learned Appellate Court had not given specific finding but it means refusal for permission to produce additional evidence. Learned counsel further argued that neither vacant strip allegedly owned by respondent No,3 is lying in between his house and the suit house nor this fact was asserted in the written statement so the application for permission to produce additional evidence is after-thought and was raised to fill up lacunae, therefore, the same was rightly not considered by the appellate Court. Thus both the judgments and decrees of the learned Court below are correct and in accordance with law. He lastly prayed that respondent No,1 is co-sharer so entire house was correctly decreed being superior in status so the instant petition may kindly be dismissed.
8. Arguments of learned counsel for the parties heard and available record perused with their valuable assistance.
9. The questions for determination before this Court are firstly as to whether the requisite demands have been proved as alleged in the plaint particularly delivery of notice Talb-i-Ishhad upon the vendee. Secondly whether both the parties are contiguous owners or there is lying a strip in between house of pre-emptor and suit house and whether the learned Courts below had taken into consideration the provisions of law while decreeing entire suit house when petitioner is also contiguous owner and thirdly market value of the suit house.
10.Firstly to determine the question regarding proof of alleged Talbs I examined the entire record.
From perusal of the record it reveals that respondent No,1/plaintiff alleged in his plaint that he on 8.1.2013 Monday when was sitting in his Baithak' along with Muhammad Yousaf son of Muhammad Amin Badshah and Said Aleem son of Said Afzal at 4.30 PM at Asar Wela time his brother Muhammad lqbal came and informed him about the sale of the suit house. He upon this above said information declared his intention to preempt the sale of the suit house in the above said sitting. Thereafter on 12.1.2013 he sent notice of Talb-i-lshhad along with A.D. card to the vendee/ respondent No,1 through registered post envelope and for making Talb-e-Khusumat instituted the present suit on 19.2.2013.
11.Plaintiff/ respondent No,1 appeared in the witness box as PW-1 who narrated the same facts as alleged in his plaint as well as in his statement on oath along with plaint and during examination in chief he stated about first demand as discussed above and sending of notice Talb-i-Ishhad received by the vendee, same Notice Talbi-shhad is lying on the record as EX.PW1/1. He also produced his ownership deed dated 27.9.1995. According to which he purchased his house from the owner namely Said Malik respondent No .2 vide sale receipt EX.PW1/4. He reiterated that the suit house has been purchased by the vendee at the rate of Rs,300,000/- 12.The same witness PW1 was subjected to cross-examination by the vendee but nothing came favourable to the defendant/vendee with regard to notice Talb-i-Ishhad EX.PW1/1. From perusal of said notice it divulges that it was scribed by Ibadullah Abid, Advocate and witnessed by Muhammad Akbar son of Ghulam Muhammad, Hazrat Gul son of Muhammad Azeem, Muhammad Ishaq Khan son of Arab Shah, Mehmood Khan son of Azim Khan and is signed by all above referred witnesses as well as scribe. Amongst them pre-emptor as PW-1, Muhammad Akbar as PW-5 and Hazrat Gul appeared as PW-7. The said notice EX.PW1/1 was sent to the vendee through registered post envelope along with A.D. Card vide postal receipt No,1134 as EX.PW1/2. Similarly AD card is placed on record as EX.PW1/3. From perusal of AD card, it transpires that it was delivered to the petitioner on 12.1.2013 through his son Muhammad Kamal who put his signature on it. It is pertinent to mention that his son Muhammad Kamal is also special attorney for him in the instant case.
13.During cross-examination the preemptor admitted that towards north of the suit house is situated adjacent the house of vendee, however during his statement he did not disclose and produce any evidence with regard to the alleged sale price of the suit house as Rs,300,000/- (three lac).
14.Similarly Muhammad Iqbal informer appeared as PW2 in the witness box who stated that his statement submitted along with the plaint EX.PW2/1 is correct. During cross-examination he deposed that he came to the Baithak' of plaintiff at 4.30 PM on the date as discussed above where Said Aleem (PW4) and Muhammad Yousaf (PW3) were present and he in their presence informed the plaintiff/pre-emptor about the sale of suit house and he promptly made 'Elan-e-Shufa'. During cross-examination this witness admitted that in the north of suit house is contiguous house of Hazrat Jamal vendee: The relevant portion is reproduced as:-- {{URUD TEXT}}
15. The same witness (PW2) was not cross-examined that there is lying a strip in between the house of pre-emptor and the suit house as discussed above and was not sold by vendor/respondent No,3 or is still the ownership of Jehan Bakhat. Moreover, this witness neither in his statement on oath nor during cross-examination stated about the alleged sale price of the suit house as Rs,300,000/-. However, during cross-examination he reiterated that other two witnesses Said Aleem (PW4) and Muhammad Yousaf (PW3) were also present in the same sitting in the `Baithak'.
16.Muhammad Yousaf appeared as PW3 who stated in his statement on oath submitted along with plaint EX.PW3/1 the same facts but did not mention the sale price of the suit house as Rs,300,000/- This witness was cross-examined at length regarding Talbs but nothing came favourable to the vendee. However, he admitted that the house of petitioner is contiguous on, the north side of the suit house. The relevant portion of cross-examination is reproduced as below: {{URUD TEXT}} 17.Said Aleem appeared in the witness box as PW4 who did not utter a single word about the sale price as alleged by the plaintiff and admitted the contiguity of vendee toward north of suit house.
The relevant portion of cross-examination is reproduced below: {{URUD TEXT}} 18.From perusal of entire evidence with regard to Talb-i-Muwathibat and Talbi-Ishhad there are no contradictions and plaintiff/respondent No,1 succeeded abundantly to prove both Talbs, so the learned trial Court had correctly decided the issue No,2 in favour of pre-emptor after proper appreciation of evidence and law. The arguments advanced by the learned counsel for the petitioner that the scribe of the notice Talb-i-Ishhad Mr. Abadullah Abid Advocate has not been produced as witness to prove scribing of it is not a valid argument as suggestion was put to any witnesses of plaintiff that it was not scribed by Mr. Abadullah Abid. Similarly the arguments about delivery of said notice through Muhammad Kamal is not in accordance with law and is also not satisfactory in the circumstances of the case and the law referred by the learned counsel in Munawar Hussain case cited as 2013 SCM R 721 could not press into service as in the referred case the vendees were two real brothers and pre-emptor served notice only on one of the vendee and no effort was made to effect service on the other vendee in person, so the Hon'ble Supreme Court of Pakistan held that such service of notice Talb-i-Ishhad was not a lawful service, however in the instant case the facts and circumstances are altogether different. In the instant case there is only one vendee i,e, Hazrat Jamal who received registered post through his real son Muhammad Kamal.
The present respondent No,1/preemptor sent notice to the vendee upon his undenied proper address and post man delivered the notice at his house, who appeared as PW9 and stated the delivery of notice in the manner like below: {{URUD TEXT}} The above portion of statement was not cross-examined and remained un-impeached.
19. From the statement of postman and the perusal of AD card EX.PW1/3 it divulges that it was signed by Muhammad Kamal who is son of vendee and is also special attorney for vendee/respondent No,1. From comparison of his signature on special power attorney and the A.D. card EX.PW1/3 it appears that both the signatures are similar and identical. The addressee/petitioner No,1 did not produce his son Muhammad Kamal in rebuttal to provide proof that he had not received the said registered post envelope or service of said notice was effected on wrong address. So strong presumption existed that notice through registered post was sent on proper address and received by his son. As both are residing in the same house so it is unbelievable that his son had not appraised or inform his father about the said notice. The Law envisaged under section 26 of General Clauses Act presumes that the post is served if is sent on proper address which presumption is rebuttable and vendee had not produced any convincing and reliable evidence in rebuttal. In this respect reliance is placed on the Judgment of Hon'ble Supreme Court in case cited as PLD 1989 SC 503.
20. Thus in view of above discussion both the learned Courts below had rightly held that it was delivered to the vendee at his proper address and received by his son Muhammad Kamal who is adult male member of the family residing with his father. So case law referred by the learned counsel for petitioner cited as 2013 SCM R 721 could not he pressed in to service as the circumstances of the instant case and referred case are altogether different. Similar rule for strong presumption to a notice served through registered post on proper address has been enunciated in the Judgment of this Court in case titled as Yar Muhammad Khan v. Bashir Aamir cited as PLD 2003 (Peshawar)
179. The relevant rule enunciated is reproduced as below. "Under the provisions of section 26 of the West Pakistan General Clauses Act, 1956 once a notice is sent through registered post with a proper address of the vendee defendant thereon then there is a strong statutory presumption that the service has been effected and the same has reached the addressee. The statutory presumption thus attached to the same would not require the evidence of the delivery postman or the booking clerk of the post office concerned and only duly stamped receipt issued by post office authorities and the Acknowledgement Card; if any, received back would be sufficient proof that the notice was duly served upon the vendee defendant.
21.The second question for determination before this Court is with regard to issue No,3 regarding superior right of pre-emption same is reproduced is as below; Whether plaintiff has got superior right of pre-emption?
22. Both the learned Courts below had decided the above issue in favour of plaintiff/pre-emptor and had decreed the entire suit house in favour of respondent No,1 despite the fact that the pre- emptor and vendee are contiguous owners as discussed above, so both the Courts below have not considered the evidence on record and the law. Moreover, the pre-emptor and vendee had purchased their respective houses from one Said Malik and his son Jehan Bakhat and Jehan Bakhat purchased the suit house from his father and afterward sold the same to the petitioner. So both the parties have same status but the same legal aspect escaped the Judicial Notice of both the learned Courts below in view of section 20 of Khyber Pakhtunkhwa Preemption Act 1987 and had failed to comprehend the relevant law. The provision of section 20 of Khyber Pakhtunkhwa Preemption Act 1987 is reproduced for comprehension as below: Section 20 "Where the Pre-emptor and vendee equally entitled: where the pre-emptor and the vendee fall within the same class of preemptors and have equal right of pre-eruption, the property shall be shared by them equally".
23. So from the evidence on record it is abundantly proved that both the parties are contiguous owners to the suit house thus the judgments and decrees passed by the Court below to the extent are set aside and are modified. Resultantly the suit house is divided into two equal shares in between the pre-emptor and vendee in view of ibid law.
In this respect wisdom is derived from the judgment of the Hon'able Supreme Court in case titled as Abdul Hakeem and others v. Khalid Wazir cited as 2004 SCM R 1770.The relevant principle enunciated by their Lordship is reproduced as below: "Both the parties are co-sharer in the property belonging to the same class of pre-emptor, hence are entitled to share in The property equally"
24.So far as the arguments of learned counsel for petitioner regarding remanding of the case on the ground that no finding was given by the learned Appellate Court before deciding appeal regarding his application for production of additional evidence to prove above discussed strip lying in between the house of pre-emptor and the suit house is concerned. Suffice it to say that the petitioner/defendant had not alleged the same fact in his written statement so is not permitted to prove a fact which has not been pleaded under the law while the factum of contiguity of both the parties is admitted one. So in the light of above discussed position it would increase the agonies of the parties if case is remanded only on the ground that no ' specific finding was recorded by the learned Appellate Court, thus the arguments in this respect as also repelled.
25.The 3rd question for determination is about the sale price or market value of the suit house. In this respect the learned trial Court framed issue No,4. The learned trial Court had decided issue No,4 upon its own analogy by giving some criteria on the basis of alleged admission made by the vendee that the price of adjacent property is Rs,260,263 per sq feet and further assumed and calculated the area of suit house as 1700 sq feet, and determined the market price according to the above mentioned criteria as Rs,500,000/- (five lac) of the suit house. The learned Appellate Court while reappraising the evidence on record had relied upon the findings of learned trial court in this respect and maintained the same finding about the market value of the suit house which is quite contrary to law.
26.In the instant case the pre-emptor has alleged in his plaint and in his statement on oath that the suit house has been purchased by vendee in lieu of Rs,300,000/- (three lac) but to substantiate his plea he has not produced any evidence in this regard except his bald statement.
27.Conversely the vendee while submitting written statement raised a specific plea in his written statement that he has purchased the suit house in lieu of Rs,1000,000/- (ten lac) in presence of witnesses and in this respect he produced sale deed place on record as EX.DW4/2. The same transaction has been witnessed by Said Muhammad who appeared as DW2, Bahadarzeh, khan Bakhat vendor (DW3), Rahat Khan, Haji Muhammad Tahir and scribe Ashraf Ali. In this respect vendee appeared as DW4 who in his statement produced and testified sale deed dated 29.12.2012 as EX.DW4/2. Same DW4 during cross-examination was put a suggestion that the sale price of the suit house had been paid as Rs,300,000/- which was answered in negative and he volunteered that he is ready to purchase the land of plaintiff to a sale consideration of Rs,15,00,000/- (Fifteen lac). So the learned trial Court has not considered the documentary proof provided by the vendee in juxta position to the fact that the plaintiff has failed to substantiate evidence for proving the sale price as. Rs,300,000/- (three lace) . On the other hand the vendee had produced documentary proof about sale deed EX.DW4/2 and marginal witnesses to the said sale deed, therefore, the learned trial Court has erred in law and fact by determining the sale price as Rs,500,000/- (five lac). Similarly the learned appellate Court also over looked the above factual and legal position while reappraising evidence with regard to the market value of the suit house thus both the Courts had not properly appreciated the evidence to this extent thus interference of this Court is needed, hence findings on issued No,4 could not be kept sustained, so findings upon same issue are set aside and the judgment and decree to this extent is modified. Resultantly, the market value of the suit house is determined as Rs,1,000,000/- (ten lac) according to the sale deed EX.DW4/2 resultantly half of suit house is decreed in favour of respondent No,1/pre-emptor in lieu of half of the sale price i,e, Rs,500,000/-. So plaintiff/preemptor if has not deposited the above determined sale price, he is directed to deposit the same within one month after the receipt of the copy of this judgment.
28. Thus in view of the above discussion, this revision petition is partially allowed in the above terms so the judgments and decrees of both the Courts below are modified with no order as to costs.