SYED MUHAMMAD ATTIQUE SHAH, J:-The petitioner through the instant revision petition has called in question the judgment and decree of Additional District Judge-II, Haripur , dated 15.12.2006, in Civil Appeals No. 49/13 and 50/13 of 2006 through which the learned appellate Court while accepting appeal No. 50/13 of 2006, set aside the judgment and decree of the learned trial court and decreed the suit of the respondents No. 1 and 2 to the extent of their prayer for possession of the suit property through exercise of their right of pre emption.
2. Brief and essential facts leading to the institution of the present petition are that respondents No. 1 and 2 brought a civil suit against the petitioner/ defendant and proforma respondents for declaration to the effect that through registered deed No. 162 dated 06.02.1998, the defendant No. 2 had alienated 1/2 Sirsai in excess of his due share in Khasra Nos. 867 and 868, therefore, to the extent of that excess alienation, the registered deed is liable to cancellation. In Para Bay of the plaint, respondents sought possession of the suit property through exercising their right of preemption against the sale deed No. 162 dated 06.02.1998. It was averred in the plaint that plaintiff No. 2 got knowledge of impugned sale on 13.02.1998 from one Haroon at 04:00 PM on his shop and he there and then expressed his intention to preempt the sale transaction and he then informed plaintiff No. 1 about the said sale on the same day at 07:00 PM in her house and she too expressed her intention to preempt the sale in the same sitting. After sending notices Talab-e-Ishhad to the petitioner/defendant No.1, when he refused to admit their claim, they filed suit.
3. On being summoned, the defendants appeared and filed their separate written statements. Defendant No. 1 claimed himself to be a bona-fide purchaser and contended that the plaintiff/ respondents were in knowledge of the sale transaction and have waived their rights. Defendants No. 7 to 11 also contested the suit through filing their separate written statement. Learned trial court, after framing issues and recording pro and contra evidence, dismissed the suit of the plaintiffs/respondent vide judgment and order dated 31.07.2004. Respondents challenged the same through civil appeal No. 50/13 of 2006 while petitioner filed cross objection bearing No. 49/13 of 2006 before the learned appellate Court. The learned appellate Court dismissed cross objection filed by petitioner while appeal filed by the respondents was allowed vide consolidated judgment and order dated 15.12.2006 and consequently, the suit of the respondents for possession through exercise of their right of pre-emption was decreed, whereas prayer of the respondents for declaration was dismissed. Feeling aggrieved, the petitioner has filed instant Civil Revision, while the respondents have not assailed the judgment and order of learned appellate court to the extent of dismissal of their prayer for declaration.
4. Arguments heard and record gone through.
5. The petitioner has assailed the judgment and order of learned appellate Court whereby a decree for possession through pre emption was passed in favour of the respondents. In order to ascertain as to whether the requisite Talabs were performed by the respondents as required under Section 13 of the Khyber Pakhtunkhwa Pre emption Act, 1987 or otherwise, the evidence produced by the parties is to be re-sifted.
6. In order to prove Talab-i-Ishhad, plaintiff/respondent No. 2 Muhammad Nawaz appeared in the witness box as PW-3 and deposed that he got the knowledge of impugned sale on 13.02.1998 at 04:00 PM through Haroon. During cross examination he admitted that defendant No. 2, who sold the suit property, is his real brother. He also admitted that publication was made in the village in respect of registered deed. He however, claimed his ignorance about the fact that the registered deed was attested on 06.02.1998. Being real brother of donor/ defendant No. 2 and residing in the same vicinity, how it was possible that he was not in knowledge of attestation of registered deed. His such stance creates doubt in his credibility. Moreover, according to PW-3, he was informed about the impugned sale by Muhammad Haroon in the way when he was going to purchase medicine, while Muhammad Haroon PW-6 deposed that he informed the plaintiff about the sale transaction in his shop. Thus the plaintiff No. 2 as well as informer have contradicted each other in respect of performance of Talab-i-Muwathibat. Moreover, plaintiff No. 1 appeared in the witness box through her special attorney. No plausible reason was ever forwarded for her non-appearance personally in the witness box in order to prove the Talabs. The attorney of the plaintiff No.1 was neither witness of Talab-i- Muwathibat nor Talab-i-Ishhad and deposed the facts regarding the performance of Talabs which were allegedly disclosed to him by plaintif f No. 1. He is having no blood relation with the plaintif f and the fact that the plaintif f had visited courts for the purpose of issuing notice Talab-i-Ishhad to the defendant/petitioner , engaging counsel for herself, filing present suit and executing power of attorney in favour of PW-5, suggests that she is not a Parda Nasheen Lady . This aspect of the case is also fatal to the claim of the respondents. Reliance can be place on "Mst.
RoohAfzaVs. Aurangzeb and others (2015 SCMR 92) and Abdul Qayyum vs. Muhammad Sadiq (2007 SCMR 957)".
7. To prove Talab-i-Ishhad, the plaintiffs have relied upon the statement of PW-1 Muhammad Aslam Clerk GPO Haripur, who during his examination-in-chief deposed that the record being old one has been destroyed. There is no evidence at all on record to suggest that notice Talab-i-Ishad was actually delivered to the petitioner/ defendant as the postman was never produced and examined before the learned trial court. On the other hand, DW-1 Abdul Majid Khan, special attorney for defendant No. 1/petitioner negated the service of notice Talab-i-Ishhad . In these circumstances, the plaintif fs/respondents were required to have proved the service of notice upon the defendant/petitioner as held by august Supreme Court of Pakistan in "Muhammad Bashir & others Vs Abbas Ali Shah ( 2007 SCMR 1 105)" that:- "Admittedly there was no personal notice, and mere endorsement of "refusal" would not constitute service, since the petitioner-defendant had denied service not only in written statement but also on oath while appearing in Court. The statement made by him in Court has been found by us to be reliable. In such circumstances, the presumption if any in terms of Article 129 of the Qanun-e-Shahadat Order stood rebutted and it was for the respondent-plaintiff to prove service by producing the postman who allegedly made the endorsement which has not been done."
The same view has been re-affirmed in "Allah Ditta through L.Rs Vs. Muhammad Anar , (2013 SCMR 866)". It is by now well settled that 'Talabs' are sine-qua-non for maintaining a suit for pre-emption "Muhammad Ali Vs. Mst.HumeraFatima (2013 SCMR 178 ) and Muhammad Anwar Vs. Safeer Ahmed ( 2017 SCMR 404 )".
8. Learned appellate court failed to appreciate the evidence in its true perspective and thus erroneously passed impugned judgment and decree which is not sustainable in the eye of law. Resultantly, while accepting the present petition the findings of the appellate Court dated 15.12.2006 are hereby set aside and the judgment and decree passed by the learned trial court dated 31.07.2004 are restored.