SYED ARSHAD ALI, J. Through the present revision petition, the petitioner has called n question the judgment and decree dated 20.4.2009 passed by 'learned Additional District Judge-III, Mansehra, whereby the learned appellate Court while accepting the appeal of respondent, suit filed by the present petitioner against the respondent was dismissed.
2. Brief but essential facts of the instant case are that Aurangzeb Malik, the petitio ner filed a suit for possession of land measuring 05 marlas comprised of Khasra No.737 by exercising right of pre-emption against Ghulam Sarwar respondent, which he purchased through mutation No.8621 attested on 26.07.2004. It was averred in the plaint that on 26.7.2004 while petitioner was prese nt at Union Council, Ghazi Kot in Jalsa-i-Aam convened by Revenue Officer for attestation of mutations, at about I'O Clock when mutation No.8621 was presented for attestation, he there and then expressed his intention to purchase the property by exercising his superior right of pre-emption, hence, had performed Talb-i-Muathibat. In this regard, the Revenue officer attesting the mutation has also recorded objection- of the petitioner on the said mutation. Subsequently on 05.8.2004, petitioner along with Sajawal Shah PW-7 and Tauseef Malik PW-8 went to the deed writer for scribing notice of Talb-i-Ishhad to be sent to the respondent/purchaser of the property . Accordingly the notice of Talb-i-Ishhad was scribed and was signed by attesting witnesses as marginal witnesses, which was then sent to the responde nt/purchaser through registered A.D. The notice was booked in the post office through receipt No.1061 dated 05.8.2004. On being summoned, respondent filed his written statement, wherein the assertion of the petitioner was specifically denied. The learned trial Court narrowed down the controversy as emerging from the pleadings of the parties by framing as many as 08 issues. The parties were directed to produce their evidence. Jan Nisar Khan NOK appeared as PW-1, who produced mutation No.8621 attested on 26.7.2004. Muhammad Pervez Postman, GPO Mansehra appeared as PW-2, who produced the record of registered envelope booked through receipt No.I061 dated 05.8.2004 and also produced record of its delivery which was exhibited as Ex:PW2/1. Ghulam Rabbani Clerk GPO Mansehra, who had delivered the notice to the purchaser/resp ondent appeared as PW-3 and confirme d before the learned trial Court the delivery of notice on the respondent. Muhammad Riaz Patwari Halqa, Ghazi Kot appeared as PW-1, who produced the revenue record showing ownership of the petitioner in the suit property . Munsif Khan petition writer , Mansehra appeared as PW-5, who has stated that he had scribed notice Talb-i-lshhad Ex:PW5/1. Gul Nawaz Khan, the then Naib Tehsildar/Revenue Officer, who had attested the disputed mutation appeared before the Court as PW-6 and confirmed before the learned trial Court that the petitioner had performed Talb-i-Muwathibat at the time of attestation of mutation. The witnesses of notice Talb-i-Ishhad Sajawal Shah and Malik Tauseef appeared as PW-7 and PW-8 respectively whereas petitioner in support of his plaint appea red as PW-9. The respondent Ghulam Sarwar himself appeared as DW-I and closed his evidence. The learned trial Court after hearing learned counsel for the parties and appreciatin g the evidence vide judgment and decree dated 29.11.2008, partially decreed the suit of the petitioner to the extent of half of the said property , as both the parties were co-owners in the entire suit property . The said judgment and decree was challenged by respondent through Civil Appeal No.34/13 of 2008. The learned appellate Court through judgment and decree dated 20.4.2009 accepted the appeal of respondent and reversed the judgment and decree of learned trial Court on the ground that in the notice of Talb-i- Ishhad the petitioner has mentioned that the sold property is situated in Khasra No.736 whereas actually the property was sold in Khasra No.737, hence arrived at conclusion that the notice of Talb-i-Ishhad was sent to the respondent in respect of property which was not actually sold. Hence, the instant revision petition.
3. Learned counsel appearing on behalf of the petitioner has argued that mentioning of Khasra No.736 instead of 737 was a clerical mistake of the scriber which cannot defeat the substantial right of pre-emption of the petitioner .
4. Learned counsel appearing on behalf of the respondent while controverting the argument of learned counsel for petitioner has argued that the pre-emption is a feeble right, hence all the facts and circumstances of the case should be strictly construed. He went on arguing that the petitioner was required to have given complete particulars of the property as the purpose of notice Talb-i-Ishhad is to convey to the purchaser the intention of a person, who wants to exercise his right of pre-emption and mis-description of the property is fatal to the case of the petitioner .
5. Arguments heard and record perused.
6. The perusal of mutation shows that the purchaser/respondent had purchased land measuring 05 marlas from Muhammad Khan and Mushtaq. In the notice of Talb-i-Ishhad Ex:PW5/2, the petitioner has specifically stated that the respondent had purchased the proper ty through mutation No.8621. However , Khasra number in the said notice has been mentioned as 736 instead of Khasra No.737. Now the question arises as to whether the mis-description of Khasra number in the notice Talb-i-Ishhad could lead to any confusion in the mind of the respondent that the said notice is in respect of the property other than the sold property . Since the responde nt has denied the receipt of any notice, therefore there is no evidence regarding the fact that the notice has misled him. However , the bare perusal of the said notice gives a clear impression that the petitioner had exercised his right of pre-emption in respect of the property measuring 05 marlas which was sold through mutation No.8621. The notice of Talb-i-Ishhad Ex:PW5/2 clearly mentions that the plaintif f has the intention to pre-empt the property measuring 05 marlas, sold through mutation No.8621. Therefore, the notice contains full description of the property sold except Khasra number which appears to be accidental omission. Hence, the mis-description of Khasra No.736 instead of Khasra No.737 would not confuse the recipient of the notice that the same was regarding the sale of property other than the one sold to him as the sold property could be easily identified from mutation No.8621 which, was specifically mentioned in the notice Talb-i-Ishhad. Therefore, wrong description of Khasra No.736 in the notice of Talb-i-Ishhad instead of Khasra No.737 appears to be technical one which cannot be allowed to defeat the substantial right of the petitioner which otherwise he has established before the learned trial Court through consistent, fumed and confidence inspiring evidence. In a similar case where the property was sold in two Khatas, the pre-emptor has mentioned only one khata in notice of Talb-i-Ishhad while dealing with such matter this Court in case titled Sarwar Khan v. Habibullah (2004 CLC 1312 Peshawar) has held:- "In the instance case, plaintif f has pre-empted the entire land mentioned in the suit mutation. No doubt it is true that in notice "Talb-i-Ishhad" only one of the Khata in suit i.e. 583 has been mentione d and the other Khata i.e. 589 does not find place but it is matter which can only be determined through evidence as rightly held by the learned Appellate Court."
7. In view of the above, the findings of the Appellate Court do not appear to be based on correct law .
8. For the reasons mentioned above, on acceptance of the present revision petition, the impugned judgment and decree dated 20.04.2009 passed by learned appellate Court is set aside and accordingly the judgment and decree dated 29.1 1.2008 passed by the learned Civil Judge, Mansehra is restored.