MUHAMMAD NAEEM ANW AR, J. Through this writ petition filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, petitioner has assailed the judgment and decree of learned District Judge Swabi, dated 06.11.2019, whereby his appeal was dismissed. The reason to challenge the judgment and decree in question in writ jurisdiction was Khyber Pakhtunkhwa Code of Civil Proce dure (Amendment) Act, 2019 , vide which Section 115 of CPC was substituted as under: "Section 115. Any party aggrieved by an order under Section 104, passed by the Court of District Judge or Additional District Judge in appeal against an interlocutory order passed by the Civil Judge or Senior Civil Judge, as the case may be, may, within thirty days of the said order , file a revision to the High Court on an obvious misapprehension of law or in respect of a defect in jurisdiction".
Thereafter , vide Khyber Pakhtunkhwa Civil Law Amendment Ordinance, 2020, the operation of Code of Civil Procedure (Amendment) Act, 2019 was deferred till 15'x' of April 2020 and then vide KPK Civil Law (Second Amendment) Ordinance, 2020, the former Ordinance No.1 of 2020 was repealed and now the provisions of Civil Procedure Code, 1908 (Act No.V of 1908) are in field, therefore, this petition is converted into Civil Revision and office is directed to make necessary entries in record.
2. Significant facts leading to the institution of this revision petition are that petitioner brought suit for recovery of possession through pre-emption against the respondent pertaining to the sale affected through unregistered deed dated 18.03.2014 by which the responde nt has purchased the property , in the shape of plot measuring 14 Marlas situated in the estate of "Galla" Tehsil Topi of District Swabi, description of which was given in head note "A" of the plaint, by alleging therein that sale was affected in lieu of Rs.500000/- (five lac) out of enormous amount of Rs.
700000/- (seven lac) was entered in the deed, in order to frustrate his right of pre-emption. It was averred that he was informed by Bilal Ahmad Khan son of Abdul Hameed Khan about the sale in question on 22nd of March, 2014, at 5:00 PM, when he was sitting in his house situated at "Galla" and he promptly announced his intention to pre- empt the sale in presence of informer . In pursuance of his first Talab he got scribed notice Talab-i-Ishhad on 25.03.2014, on Tuesday in District Court, in presence of Bilal Ahmad Khan and Muhammad Hameed, the marginal witnesses, all of them signed the notice and the same was sent through registered post with acknowledgment due (AD Card) to respondent. He claimed to have superior right against the respondent of being co-sharer , have right of appendages and contiguous owner to the disputed property .
3. Respondent resisted the suit through written statement on factual and legal grounds. Paradoxical pleas were culminated into issue, whereafter , petitioner produced Abdullah Patwari (PW1), Shah Faisal record keeper/postal clerk of Post Office Swabi (PW2), Fazal Hadi, record clerk Post Office Swabi (PW3), Mehraj record clerk of Post office Topi (PW4), Bilal Ahmed Khan informer and witness of notice (PW6), Muhammad Amin, witness of notice (PW7) and himself appeared as PW.5. Respondent appeared through special attorney Shah Nawaz (DW1). After completion of evidence, suit of the petitioner was dismissed by the learned trial Court on 22.04.2019. He preferred an appeal against the judgment and decree of trial Court, however , the same too met the same fate, hence this petition.
4. Learned counsel for petitioner contended that petitioner has got superior right of pre-emption and he has performed the requisite Talabs as provided in Statute and Sharia, wherein there were no material contradictions but both the Courts below have non-suited the petitioner for no valid reasons.
5. I have heard the learned counsel for petitioner and have perused the record.
6. Petitioner was non-suited on two grounds, first that he has got no superior right of pre-emption and second that talabs/demands were not proved as required by law. In order to prove superior right, petitioner produced patwari halqa, who placed on file an extract from record of right/fard-jamabandi for the year 2011-12 of property bearing Khasra No.1706 (ExPW1/1), Khasra Nos. 1707, 1708, 1705, 1709 and 1710 (EXPW1/7, EXPW1/4), all these khasra numbers pertaining to "Shamilat Akazai" though by placing on file, petitioner wanted to prove that he is contiguous owner of the disputed prope rty, however , as the list of "proprietary body" "Fihrist-i-Malikan" was not placed on file, which could determine the status of petitioner as to whether he is original owner(Asal malik) or Malik-e-Qabza, because mere placing on record the extract from jamabandi could not ipso facto be a conclusive proof of his ownership in the "shamilat" thus ExPW1/1, ExPW1/4 and EXPW1/7 are not helpful for petitioner .
Likewise, aks shajra kishtwar ExPW1/2, without proof that in which khasra, petitioner was the owner has also not contributed any premium to him. Moreover , petitioner by placing on record ExPW5/4 (Iqrar Nama) dated 25.06.2000, (Iqrar Nama) dated 06.12.1997 ExPW5/5 and (Iqrar Nama) dated 02.03.2002 ExPW5/6 contended that vide ExPW 5/4 and ExPW5/6, he has become owner in property which is contiguous to the disputed property , however , neither marginal witness nor the vendors were produced to corrobora te his version. There is solitary statement of petitioner , in which these documents were placed on record, which were objected by the respondent, so in the circumstances; petitioner was required to establish the case through well founded and credible evidence, which is lacking in his case. So, from nowhere petitioner could prove his preferential right of pre-emption.
7. Second part of arguments of proof of Talabs . Record divulges that Bilal Ahmad Khan (PW6) informed the petitioner about the sale in question. In Para-2 of the plaint and notice Talb-i-Ishad, the details were given about the time, date and place. Informer , Bilal Ahmed entered in witness box as PW6 and reiterated the facts as mentioned in plaint, however , he also added that at the time of Talb-i-Muwathibat, Muhammad Amin (PW7) was also present in the house of petitioner/pre-emptor . This fact was neither mentioned in the notice of Talb-i-Ishhad (Ex PW5/3) nor in the plaint. Petitioner (PW3) and Muhammad Amin (PW7) have also deposed in their respective statements that at the time of Talb-i-Muwathibat Muhammad Amin was present. Yet, another aspect of Talb-i-Muwathibat was the specific place, though in plaint and notice it was mentioned that first Talb was made in the house of pre- emptor/petitioner , but in cross-examinatio n, petitioner has specified the place as "veranda" of his house, whereas PW.6, informer elucidated that petitioner and Muhammad Amin were sitting in the room of petitioner 's house. In this scenario when the pleadings, notice and statements of PWs are assessed in juxtaposition, this Court has reached to an irresistible conclusion that due to addition of Muhammad Amin about his presence at the time of Talb-i- Muwathibat and venue/place, such as, veranda and room of the petitioner 's house, petitioner and his witnesses are not truthful which was the mandate of law, thus, no talb-i-Muwathibat was made by the petitioner . Reliance is placed on Ghafoor Khan Vs Israr Ahmad (2011 SCMR 1545 ) & Oasim Khan Versus Gul Nawaz (2014 CLC 1740 ). Likewise, pre-emption being Originated from Islam, In HIDA YA by "Charles Hamilton" Translated by "Sheikh Burhan-ud-Din Abi Al Hassan Ali Marghinani" Book XXXVIII, Chapter-II, it was demo nstrated that "where the Shafa'i prefers his claim the moment he is apprise d of the sale being concluded; and this is necessary that he should do, in so-much that if he makes any delay his right is thereby invalidated; for the right of shuf'ah is but a feeble right; as has been already observed; and the Messenger of Allah, moreover , has said; The right of Shuf 'ah is established in him who prefers his claim without delay .
It may be pertinent to mention here that Talb-i Muwathibat can validly be made in presence of "single" person, as neither Islamic Law nor the legislature have ever intended that talb-i-muwathibat should be made in presence of more than one person as the gathering, meeting, majlis or sitting may be of only two persons, the pre-emptor and informer . More so, the definition of word majlis in any of the Dictionary i.e. Oxford dictionary , black law Dictionary or chamber 's dictionary has never defined, explained or narrated it that only two persons would not constitute majlis.
Here in the instant case, in plaint it was averred that talb-i-Muwathibat was made in presence of informer whereas in statements Muhammad Amin was also introduced, which was against the pleadings, as such, the same was not in consonance with law on the subject.
8. Insofar as talb-i-Ishhad is concerned, the respondent has categorically stated that no such talb was made, then the petitioner was legally required to prove that not only the notice was scribed but the same was served upon the respondent (Vendee). Admittedly , postman was not produced. PW.3 deposed that neither he booked the registered letter nor delivered the same. PW.4, record keeper , stated that he was appointed as peon in the post office, neither he received registered letter or notice nor delivered the same. "Acknowledgement due" card was placed on file and marked as ExPW5/2, in the statement of PW.5 (petitioner), on the overleaf if it there is a signature but the document by which the property was purchased by vendee/respondent bears the thumb impression by respondent.
In the statement of DW1, the sale deed was got exhibited as ExDW1/2, but regarding signature and thumb impression no question was put to the special attorney for respondent. In case titled Sultan Versus Noor Asghar (2020 SCMR 682 ) it was held by the apex Court that: "5. In a pre-emption suit, performanc e of Talbs is a sine qua non before filing a Suit, for instance in a written statement a Vendee defendant denies performance of Talb-i-Ishhad by the Plaintiff/Pre-emptor and when appears as a witness admits receipt of notice of Talb-i-Ishhad . This admission is not sufficient to hold that the Plaintiff has proved performance of Talb-i-Ishhad because the admission of receipt of notice does not confirm that the notice was sent within two weeks after the date of knowledge by the Plaintiff. It also does not confirm that the same was attested by two truthful witnesses. Further , that the same was sent through registered post acknowledgement due, therefore, we are clear in our mind that the Plaintiff before filing a Suit is required to fulfill the requirements of filing the Suit of pre-emption including performance of Talb-i-Ishhad and if he pleads and performs Talb-i-Ishhad in accordance with law only then he can prove the same after producing requisite evidence i.e. that the notice was issued within two weeks from the date of knowledge, it was attested by two truthful witnesses and it was sent through registered acknowledgement due where the facility of postal services were available. Though in the case in hand, there is no admission on the part of the Vendee/Defendant as we have notic ed supra that notice of Talb-i- Ishhad was received by them confirming the intention to exercise the right of pre-emption."
Reliance is also placed on Basharat Ali Khan Versus Muhammad Akbar (2013 SCMR 307) Allah Ditta through legal heirs versus Muhammad Anar ( 2013 SCMR 866 ).
9. Apart from the above, there are concurrent finding of facts the learned Courts below , regarding which the learned counsel for petitioner has not been able to show any misreading and non-reading of evidence or any illegality , so in accordance with the dictum laid down by the apex Court in case Noor Muhammad and others Vs Mst Azmat Bibi (2012 SCMR 1373 ) that concurrent findings of facts could not be set at naught by High Court while exercising the powers under Section 115 of CPC unless the findings are perverse, against the law or reflected from the same jurisdictional error .
10. For the reasons discussed above, this petition being without substance is hereby dismissed in 'limine' .