SAHIBZADA ASADULLAH, J. The petitioner , Mehboob Shah, through this Civil Revision Petition under Section 115 Code of Civil Procedure, 1908 has challenged the judgment and decree dated 07.11.2015 passed by the learned District Judge, Lakki Marwat who affirmed the judgment and decree dated 19.9.2012 passed by the learned Senior Civil Judge, Lakki Marwat, whereby his suit for possession through pre-emption was dismissed.
2. Precisely the facts giving rise to the instant Revision Petition are that the suit property sold in favour of the respondents vide registered sale-deed No. 67 dated 20.9.2010 was sought to be pre-empted by the petitioner on the ground of his being Shafi-Sharik, Shafi-Khalit and Shall-Jar with the assertion that he had performed the requisite Talabs in accordance with law. The suit was contested by the respondents, inter alia, on the ground that the petitioner had no preferential right nor performed Talabs in accordance with law. The learned Trial Court on divergent pleadings settled issues and called upon the parties to adduce evidence in support of their respective claims. After close of the evidence the parties were heard at length where the petitioner/plaintif f failed to convince the trial court and as such vide judgment dated 19.02.2012, suit of petitioner/plaintif f was dismissed. On appeal preferred by the petitioner , learned appea l Court dismissed the same vide judgment and decree dated 07.11.2015, hence this Revision Petition.
3. I have heard the arguments of learned counsel for the parties and have gone through the record.
4. The petitioner pre-empted the sale which was effected through sale-deed No.67 dated 20.9.2010. It is the case of the petitioner that he attained the know ledge of the sale in question on 10.10.20 10 through Faqir Hassan, where he pronounced that he will exercise his right of pre-emption as he has a superior right qua the vendees. Since sale in question was in favour of the responde nts/defendants so as per stance of the petitioner he sent notices of Talb-i- Ishhad to them on 13.10.2010.
5. For the purpose of properly appreciating the matter in issue, issue No.4 is releva nt which was framed with regard to the performance of talbs. The learned Courts below held that the petitioner/plaintif f has failed to establish performance of Talb-i-Muwathibat and Talb-i-Ishhad. I have examined the relevant evidence as well as the findings arrived at by the learned District Judge, Lakki Marwat qua the performance of talbs. I am of the considered view that the findings of the learned Additional District Judge, Lakki Marwat fords support from the available evidence.
Admittedly the sale-deed was effected in favour of the respondents/defendants. It is discernable from the record that Raees Khan recorded his statement as PW-6 wherein he has made contradiction regarding the time of availability of petitioner in his baithak and thereafter pronouncement of talab-e-Mawathibat, in cross-examination, he stated that at 03.30 P.M, Faqir Hassa n (informer) arrived at his baithak and informed the petitioner about sale transaction upon which the petitioner made his jumping demand of exercising of his right of pre-emption over the suit land. Thus not only the petitioner but the witness in whose Baithak talab-e-mawathibat was made is not clear about the timing, rather he has contradicted the narrative contained in the plaint wherein the time of knowledge has been shown as 04:00 PM. Admittedly in order to succeed a pre-emptor must prove the essential condition for exercise of such right of pre-emption in accordance with section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 but the petitioner has desperately failed to prove it.
6. It is a settled principle of law that where a fact is required to be proved through oral evidence, such evidence must be direct and of the primary source. The foundation of such direct evidence in the case about the proof of the fact of Talb-i-Muwathibat, is the person who had made the Talab. If the pre-emp tor in his plaint narrate time of knowledge as 04:00 P.M, whereas his informer took different stance of such facts cannot be considered trustworthy and acceptable. In this regard reference may be made to the case of Humayun Naseer Cheema and 3 others Vs. Muhammad Saeed Akhtar and others (2007 CLC 819) and Haji Muhammad Usman through his legal heirs Vs. Muhammad Paryal (1987 CLC 552). Thus, I am persuaded to hold that the petitioner had failed to prove making of Talb-e-Muwathibat in accordance with Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
7. It has been provided in Section 13(3) of Khyber Pakhtunkhwa Preemption Act, 1987 that where a pre-emptor has made Talb-i-Muwathibat under sub-section 2 of Section 13 of the Act Ibid he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing, attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption. The plaintif f has averred that on 03.10.2010 he dispatched notice of Talb-i-Ishhad to the defendants which were duly attested by truthful witnesses, however under the law mere sending of notice of Talb-i Ishhad by pre-emptor is not sufficient and acknowledgment due slip must be signed by the vendee and not any other person and it is now the settled principle of law laid down through case law reported as "Allah Ditto through L.Rs and others Vs. Muhammad Anar" ( 2013 SCMR 866 ) that:- "Affirmative onus to prove the receipt of notice of Talb-i-Ishhad was on the pre-emptor , therefore, notwithstanding any admission of the attorney of the vendee, it was obligatory on the pre-emptor to have proved the sending of notice by leading af firmative evidence, which undoubtedly required the production and examination of the postman"
8. In this case no affirmative evidence has been produced by the plaintif f to establish that notice of Talb-i-Ishhad was dispatched to the defendants or received by them. Moreso, PW-4 (Postman) in his cross-examination admitted that on return of registry envelops, he has not marked attendance of any private person nor recorded statement of witness thereto. This all depicts that sending of notice of Talb-i-Ishhad to the defendants has not been proved.
9. Besides, it has also been noted that scribe (petition writer) of notice has not been produced in witness box and plaintif f himself conceded that the notice was dispatched to the defendants through registered post, in such a situation the scribe of notice was necessary to be produced in witness box but he has not been produced in trial. It has been laid down in case law reported as "Muhammad Rafique Vs. Muhammad Shafique and others" (2013 YLR 145 ) wherein it has been held as under: "The clerk who had written notice of Talb-i-Ishhad was not produced as witness in case, therefore, pre-emptor had not successfully proved Talabs in accordance with law"
10. As discussed above, pre-emptor is not only required to prove the requirements of Talb-i-Muwathibat but also that he is bound to establish requirement of Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgment due to the vendee confirming their intention to exercise the right of pre-emption but the evidence produced by plaintif f has been found with material contradictions and the plaintif f despite burdened to prove the requirements of Talb-i-Muwathibat and Talb-i-Ishha d has failed to prove the same and once the plaintif f fail to prove perform ance of Talbs in accordance with law no decree for possession through pre-emption can be passed in their favour .
11. Petitioner has failed to point out any illegality or legal infirmity in the concu rrent findings of learned Courts below , which appear to have been passed in terms of the statutory provisions and evidence brought on record, warranting no interference of this Court in the exercise of its revisional jurisdiction. Even otherwise, this Court seldom interferes in concurrent findings arrived at by learned Courts below while exercising power under section 115 C.P.C. unless and until findings on the face of it are against evidence or so patently improbable or perverse that to accept the same could amount to perpetuate a grave miscarriage of justice or if there has been any mis- application of principles relating to appreciation of evidence or if findings could be demonstrated to be impossible, absolutely illegal and unwarranted under the law .
12. In view of the above discussion, this petition, being devoid of merits, is hereby dismissed, with no order as to costs.