SHAKEEL AHMED, J.---This revision petition is directed against the judgment dated 13.01.2009, passed by the learned Additional District Judge, Mansehra, whereby he allowed respondent's appeal and reversed the judgment and decree dated 29.07.2006 through which while reversing the judgment and decree of the learned trial court respondent's suit stands decreed.
2. The facts of the case, in brief, are that the respondent brought a suit for pre-emption against the petitioner pre empting the suit land, measuring 22 kanal and 04 marla, and the plaint respectively mentioned, the time, date and venue where Talb-i-Muathibat was made and also issuance of the sending of notice of Talb-i-Ishhad Ex:PW5/2. Petitioner/ defendant denied both the tlabs in the written statement, from the divergent pleadings of the parties, following issues were framed and parties were directed to produce their respective evidence.
1. Whether the plaintif f has got a cause of action?
2. Whether the plaintif f is estopped to sue?
3. Whether the suit is bad in its present form? -
4. Whether the talbs have been made according to law?
5. Whether the plaintiff has got superior rights of pre-emption?
6. What is the market value of suit property?
7. Whether the defendant is entitled to cost of improvement in case of decree of suit?
8. Whether the plaintif f is entitled to a decree as prayed for?
9. Relief.
3. During trial respondent/plaintiff produced eight (08) PW. Khawja Muhammad, Patwari Halqa, was produced as PW-1, who produced Fard-i Intikhab. as Ex:PW1/D-3, Khasra Girdawari as Ex:PW1/D-4, mutation No.75 attested on 23.11.1948 as Ex:PW1/D-5. Ghulam Rabbani, Record Keeper, Post Office City, Mansehra appeared as PW-2, who produced receipt No.1524 as Ex:PW2/1. Fareed Khan, Moharrir Registry Mansehra, appeared as PW-3, who produced Bhai No:1 Volume No.168 pertaining to Waseeqa No.628 as Ex:PW3/1. Aurangzeb, Post Man Branch Post Office appeared as PW-4 and produced photocopy of receipt as Ex:PW4/1, copy of register as Ex:PW4/2 and AD card as Ex:PW4/3. Naveed Ahmed appeared as PW-5 and produced copy of notice Talb-i-Ishhad recorded in the register of Waseeqa Naveesi as Ex:PW5/1 and copy of notice as Ex:PW5/2. Muhammad Shaukat appeared as PW-7, he is the informer, as well as witness of jumping demand and also marginal witness of notice of Talb-i Ishhad Ex:PW5/2. Muhammad Iqbal (PW-8) is also marginal witness of notice of Talb-i-Ishhad. Plaintiff himself appeared as PW-6 and reiterated his stance taken in the plaint. In defence, Waheed Ahmed appeared in the witness box as a special attorney of the defendant and closed his evidence.
4. The learned trial court after hearing learned counsel for the parties vide judgment and decree dated 29.07.2006 dismissed the suit of the respondent. Aggrieved from the judgment and decree of learned trial court respondent filed appeal before the learned Additional District Judge, Mansehra, which was allowed vide judgment dated 31.01.2009, hence this revision petition.
5. Learned counsel for the petitioner contended that the learned appeal court fell in error in reversing the judgment and decree of the learned trial court, whereby respondent's suit had been dismissed. He next contended that the requisite tlabs as mentioned in Section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 were neither fulfilled nor proved. He further contended that notice of Talb-i-Ishhad was not served upon the petitioner. Coming to the notice of Talb-i-Ishhad learned counsel for the petitioner urged that mere Sending of registered post acknowledgement due is not sufficient. He further added that there are vital discrepancies in the statements of PW-6 and PW-7 and prayed for setting aside the impugned judgment.
6. As against that learned counsel appearing on behalf of the respondent/ plaintiff defended the impugned judgment and argued that the sending of notice through registered post acknowledgment due is sufficient compliance with requirement of law and it would give presumption that notice stood served, particularly, when the notice of Talb-i Ishhad was received by the father of the petitioner/defendant. He next argued that there is no major discrepancy in the statements of PW-6 and PW-7. He further argued that all PWs are consistent on the venue, time and date of jumping demand. He lastly contended that since the petitioner had not filed a cross-objection before the appeal court, therefore, the findings rendered by the learned trial court were not open to objection and prayed for dismissal of revision petition.
7. I have heard arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
8. Both the learned counsel focused their arguments on issue No. No.4 i.e. "whether the tlabs have been made in accordance with law?" The learned trial court dismissed the suit and decided the aforementioned issue in favour of the petitioner/defendant by holding as follows:- "The plaintiff failed to perform Talb-i-Muwathibat according to law therefore his right of pre emption is not activated and establishing only Talb-i-Ishhad is not sufficient for the grant of pre emption decree."
9. Regarding notice of Talb-i Ishhad, it was held by the learned trial court that there is tenable evidence to prove that notice of Talb-i-Ishhad has been served in reversing the learned trial court's judgment, the learned appellate court, however, came to the conclusion that conditions of Talb-i-Muathibat, Talb i-Ishhad and Talb-i-Khasummat has been fulfilled. It was held as follows:- "Plaintiff has fulfilled the required demands of Talbat i.e talb-i-Mawathibat, talb-i-Ishaad and Talb-i-Khsumat respectively. So far the findings of trial court regarding Talb-i-Muwathibat is concerned as if plaintiff has not performed the demand of Talb-i Muwathibat according to law for the reason that the informer of the transaction and plaintiff are in contradiction with each other. But this court does not agree with the findings of trial court on this point because in cross-examination plaintiff as PW6 though has stated that he was sitting alone in the veranda of his house when Shoukat (informer) came but has explained it by saying itself that at that time her mother and children were present in the room of house and when Shoukat (informer) came, his home folk, his mother, wife and children would come and go, which factum has been repeated by Shoukat PW7 in his cross-examination in his own words by saying that the mother of plaintiff, his wife and children were present along with plaintiff in the courtyard of the house. Furthermore, if there is any contradiction in this regard between PW6 and PW7 that is of minor nature and ignorable in interest of justice. Similarly the demands regarding of talb-i-Ishaad and talb-i-khsumat have been fully corroborated and proved by plaintiff through documentary evidence. Moreover , defendant has not filed cross objection to the findings of trial court regarding the above mentioned demands."
10. From perusal of the record I find vital discrepancy in the statement of PWs 6 and 7, who are the star witness of the case. Respondent/plaintiff while appearing as PW-6 stated in his examination-in-chief that disclosure of the sale of suit land was made to him in his house by Muhammad Shoukat PW-6 during gossip at evening time and on receipt of said information he made jumping demand. This assertion was also made in the plaint. However, during cross-examination he changed his stance and stated that he was sitting in veranda all alone when Shaukat (PW-7) came to his house and informed him. He stated that one Javed informed him about the suit transaction. He further stated that on 23.07.2000 he closed his shop situated near to his house. Shaukat informer, appeared before the learned Trial court as PW-7 and deposed that he told to plaintiff that the suit property has been sold at Rs.1,00,000/-. In response thereof the respondent/plaintiff stated that he had no knowledge of sale transaction and declared his intention to pre-empt the suit property. During cross-examination he stated that on the day of information the shop was opened and his cousin namely Sajjad was handling the same. He admitted suggestion of the learned defence counsel in the following manner: - {{URDU TEXT}}
11. These were the material contradiction and a clear deviation from the earlier stance taken in the plaint and examination-in-chief of both these PWs, hence, I hold that the learned appeal court had failed to notice the same.
12.As regards the issuance of notice of Talb-i-Ishhad in terms of .section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 is concerned, admittedly, the notice of Talb-i-Ishhad was not served upon the petitioner. Aurangzeb, Postman B (PW-4) deposed that notice was received by Muhammad Fareed father of the petitioner/defendant. The vendee has specifically denied receipt of notice of Talb-i-Ishhad in the written statement as well as in the evidence. The acknowledgment due slip was tendered as Ex:PW4/3, was also signed by the said Muhammad Fareed and not by the petitioner/defendant herself. The fact that the notice was merely sent would not be sufficient for making tlabs. The requirement of "sending a notice in writing" is followed by a rider i.e. under registered cover acknowledgment due". This denotes that intention of law is not merely a formal notice on the part pre- emptor served on the addressee, but also disclosing his intention to pre-empt the suit property. In the case reported as Thammiah v. Election Officer (1980) 1 Kant L.J 19 the expression "sending notice" was examined and it was held that:- "it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it."
In this context reference may also be made to the case reported as Khan Afsar v. Afsar Khan and others 2015 SCMR 311, wherein it was held as under:- "Notice of Talb-i-Ishhad should be served upon the vendee "acknowledgement due slip" must be signed by the vendee and not by some other person."
13. When the notice of Talb-i-Ishhad was not received by the vendee/addressee, but by some other person and receipt thereof was specifically denied by the vendee, then requirement of notice of Talb-i-Ishhad provided under section 13 (3) of Khyber Pakhtunkhwa Pre-emption Act, 1987 would not be fulfilled. In this respect reference may also be made to the case reported as Allah Ditta through L.Rs and others v.
Muhammad Anar (2013 SCMR 866).
In this respect reliance may also be placed on the case reported as Qaiser Zamani v. Rasheeda Begum 1985 CLC 496, wherein question of service of notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was commented upon. In this case notice was sent through registered post acknowledgment due, but the addressee denied having received the notice, while dilating on the presumption under Section 114 of the Evidence Act (now Article 129 of Qanun-e- Shahadat Order) read with Section 27 of General Clauses Act, it was observed as under:- "As regards presumption of service under section 114 of the Evidence Act read with section 27 of General Clauses Act, suffice it to say that Mst. Qaiser Zamani appeared in Court and stated on oath that she did not receive the notice intimating change df transfer. In the circumstances of the case particularly when there was no evidence as to what was contained in the Registered envelop, it can be safely observed that no such notice as was required by law was served upon her. Any admission of tenancy, under the present landlady in a suit filed for recovery of rent subsequent to the ejectment proceedings would not avail the respondent landlady .
Rent Controller proceeded on the assumption that the ejectment application was itself a suf ficient notice."
14. In the light of discussion made hereinabove, it can safely be held that notice of Talb-i-Ishhad as stipulated in section 13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987 was not served upon the vendee, thus, the respondent failed to prove service of notice Talb-i- Ishhad by leading evidence.
15. In order to appreciate contention of the learned counsel for the respondent that in the absence of cross objection the findings rendered by the learned trial court on the issue of notice Talb-i-Ishhad could not be reversed by this court, perusal of Provision 8 Order XLI, Rule 22 of C.P.C. is necessary, which is reproduced as under:- "22.Upon hearing, respondent may object to decree as if he had preferred separate appeal. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time -as the Appellate Court may see fit to allow.
Form of objection and provisions applicable thereto. (2) Such cross-objection shall be in the form of a memorandum, and the provisions of rule I, so for as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection a written acknowledgment( from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule."
A plain reading of the language of the said rule would reveal that respondent is well within his right to support the judgment of the learned trial court without filing the cross-objection for this purpose he can make oral submission to assail the findings on issues given against him. In this behalf reliance can well be placed on the judgment reported as Mst.Jamila Begum v. Awam-un-Nisa and 15 others (PLD 1978 Lahore 1376), wherein it was held that Order XLI, Rule 22, C.P.C. authorizes the respondent to support the judgment even on the basis of issue decided against him. In the instant cases learned trial court had not passed any decree or order against the petitioner, therefore, it was not open for him to file any cross-objection or cross-appeal of his own. In this respect reliance can also be place on the case reported as Asifa Khanum through L.Rs. v.
Sheikh Abdul Ghafoor through L.Rs. 2009 CLC 1089 and Amir v. Falak Sher and another 2003 CLC 1756.
16. Even otherwise while reversing the judgment of the learned trial court, the learned appeal court held that the respondent has fulfilled the required demands of tlabs, including Talb-i-Ishhad, therefore, the petitioner has rightly questioned the validity of findings of the appeal court through this revision petition. The objection is hereby repelled.
17. For what has been discussed hereinabove, I hold that the learned appeal court while reversing judgment of the learned trial court has not adverted to these aspects of the case and the law declared in this respect. The impugned judgment is, therefore, not sustainable, consequently, this revision petition is allowed and the impugned judgment dated 13.01.2009, passed by the learned Additional District Judge Mansehra, is set aside and that of learned trial court dated 29.07.2006 dismissing respondent's suit is restored with no order as to costs.