MUHAMMAD NAEEM ANW AR, J. Through this Civil Revision under Section 115 of Civil Procedure Code, 1908, the petitioners have questioned the validity and correctness of judgment & decree of learned Additional District Judge-VII, Peshawar , dated 21.05.2012, whereby the appeal filed by them was dismissed.
2. Relevant facts of this petition are that the petitioners by claiming superior right of pre-emption have filed suit for recovery of possession through pre-emption by alleging that on 30th of December , 2009, they were sitting in their Hujra, situated in Sheikh Abad, along with other inhabitants of locality including Muhammad Iqbal Shah, exactly at 3.00 PM, when Akhtar Munir came and informed them regarding purchase of the suit property by the defendants/respondents. They there and then announced their intention to preempt the suit property . Thereafter , a Jirga was convened on 31-12-2009, wherein the petitioners have requested the respondents to transfer the suit property to them in lieu of actual sale consideration but they refused. The petitioners averred that they have got scribed notices of talb-i-ishhad on 01-01-2010, duly signed by marginal witnes ses and were posted through registered Acknowledgement due, howev er, the respondents refused to accept the petitioners' request, thus, filed the instant suit. Respondents resisted the suit by taking legal and factual objections in their written statement. On conclusion of trial, the suit was dismissed by the learned trial court. Petitioners filed appeal against the dismissal of their suit before appellate court but the same also met the same fate, hence, this petition.
3. Learned counsel for the petitioners contended that despite the fact that the petitioners have proved talabs in accordance with law and have got superior right against the respondents but both the courts below by not considering the evidence in true perspective have dismissed their suit. He also added that non-production of informer and postman was of no consequence, in support of his arguments, he placed his reliance on 2004 YLR 655, 1999 SCMR 2167 .
4. Conversely , learned counsel for the respondents contended that the petitioners could not prove the factum of talabs as neither the informer nor the postman was produced as witnesses, therefore, due to non-appearance of informer , talab-i-muwathibat, and by non-production of the postman, talab-i-ishhad remained unproved, as such, the petitioners were not entitled for any relief, thus, the findings of both the courts below are correct and the petitioners were rightly non-suited.
5. Arguments of learned counsel for the parties heard and record perused.
6. It appears from the record that the first talab, i.e, talab-i-muwathibat, as alleged by the petitioners, to have been made by them in presence of the inhabitants of locality including Muhammad Iqbal son of petitioner No.1 when informer , namely , Akhtar Munir , allegedly told them about sale, but the intriguing aspect of the matter in hand is that neither the informer nor anyone else in whose presence talab-i-muwathibat was allegedly made was produced. It was not the petitioners' case that only the petitioners, Iqbal and Akhtar Munir , were present when first talab was made but the plaint reveals that Petitioner No.1 after performing Hajj arrived to home where his friends and relatives were also assembled for "Mubarakbadi" of hajj, when the talab was allegedly made by them, so, in such circumstances, the factum of first talab could easily be proved by production of any one from the said witnesses in whose presence the talabs was made. Petitioners' reliance to this effect was on 2004 YLR 655, where in presence of two witnesses talab-i-muwathibat was made and both of them were produced whereas in the instant case non else except son of petitioner No.1 was produced. More-so, no reasonable or plausible explanation was given by the petitioners for non-production of the informer . The Hon'ble supreme court in Muhammad Mal Khan' s case 2002 SCMR 235 , while deciding the similar proposition, has held: - "Therefore, in absence of any explanation by the plaintif f as to why he withheld Tayyab Khan from examining him as his witness the legal presumption would be that in case, he had been produce d then his deposition must have been against him. The cited judgments reported as PLD 1995 Quetta 1, does not help the appellant if it is read as a whole as it has not been held therein that it would be necessary to produce in evidence the person in whose presence Talb-i-Muwathibat had been made 1999 SCMR 717 and 1999 SCMR 724 are not relevant and they deal with Talb-i-Ishhad."
In case Abdul Reman Versus Haji Ghazan Khan 2007 SCMR 1491 , it was settled by the Hon'ble Supreme Court that: - "For the first time, in his evidence, he disclosed the name of informer , but preferred not to examine him as a witness and that also without assigning any reason. A pre-emptor claiming right of pre-emption, as a matter of prudence, ought to seek corroboration to satisfy reasonably the judicial mind of the Court that Talb-i-Mowasibat was made by him enabling him to make the other demand (Talb-i-Ishhad). In this case, failure to put the informer in witness-box, seen from that angle as well, raises a logical presumption that appellant feared that the witness, if examined, could not stand the test of cross-examination or that the witness would not support him or that his evidence would be against him. In this, we are fortified by case of Muhammad Mall Khan (supra), in which it is observed that: - "... therefore, in absence of any explanation by the plaintif f as to why he withhe ld Tayyab Khan (informer) from examining him as his witness the legal presumption would be that in case, he had been produced then his deposition must have been against him."
7. An equal significant aspect of the case is Talb i-ishhad, as the petitioners' have challenged the registered deed No. 1765 dated 08-09-2009 (Ex.PW2/1), whereby two vendees (respondents) have purchased the property , thus, the petitioners were required to send separate Notices through registered post with AD cards as per Section 13 (3) of Khyber Pakhtunkhwa Pre-emption Act, 1987, which reads as: - "13 (3) Subject to his ability to do so, where a pre-emptor has made talb-e-muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 2, or knowledge, whichever may be earlier make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confessing his intention to exercise the right of pre-emption"
Copies of notices reveal no separate notice was given to the vendees, similarly , notices allegedly sent to the respondents were not under the cover of registered acknowledgment due, for which the statement of PW 3 was of worth perusal, who in his cross examination deposed that both of the receipts No 535 and 536 were of simple registered post as none of the registered post was under the cover of acknowledgment due. It is pertinent to mention here that in the written statement, it was categorically denied that no notice was given to respondents No.2, despite the fact that the petitioners have not produced postman, which was one of the legal requirements of pre-emption. In such circumstances, when receipt of notices was denied, produ ction of postman as petitioners' witness was sine qua non. In Sultan V ersus Noor Asghar case (2020 SCMR 682) it was held:- "In a pre-emption suit, performance 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 Plaintif f/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 Plaintif f 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 Plaintif f. 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 Plaintif f 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 cover 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 noticed supra that notice of Talb-i-Ishhad was received by them confirming the intention to exercise the right of pre-emption".
This aspect as to whether sending a notice through registered post without acknowledgment due could be construed to have met the requirement of law as provided in section 13 (3) has been considered by the Supreme Court in case "Basharat Ali Khan versus Muhammad Akbar" 2017SCMR 309 and held that: - "There are two aspects of the point unde r discussion; firstly , whether the "acknowledgment due" part of the notice of Talb-i-Ishhad under registered cover constitutes an imperative element of the prescribed mode of service affecting the maintainability of a pre-emption suit; and if so, whether a vendee can waive service of notice of Talb-e- Ishhad upon him by such a prescribed mode. Section 13(3) of the Act, 1991 specifies unequivocally that Talb-i- Ishhad shall be made by (i) written notice (ii) attested by two truthful witnesses (iii) under registered cover (iv) acknowledgment due. The only situation in which the Act, 1991 does not require the sending of notice by registered cover acknowledgment due is when the post office facility is not available to a pre-emptor [S.13(3) proviso of the Act, 1991]. Secondly , according to case law, the prescribed condition of service of notice by registered cover acknowledgement due may be relaxed where the defendant/vendee admits that he has received notice of Talb-i- Ishhad. In all other cases, service of notice of Talb-i-Ishhad upon a vendee must be established by the proof of each of the afore-noted four prescribed elements of the notice of such Talb. These prescribed elements of the service of a Talb-i-Ishhad notice are specific statutory requirements for the proof of service of notice of such Talb which demand has been construed to be a mandatory obligation of a preemptor-plaintif f. This means that if any of the afore-mentioned four elements of the prescribed mode of service of Talb-i-Ishhad is not proven by a plaintif f, he dishonours his mandatory obligation and consequently , his pre-emption suit must fail."
8. Thus, in the circumstances, when neither the petitioners could prove talb-i-muwathibat nor talb-i-ishad, both the learned courts below have rightly non-suited the petitioners. Learned counsel for petitioners could not point out any misreading or non-reading of evidence, illegality or jurisdictional defect in the impugned judgments and decrees, therefore, this revision petition in hereby dismissed being without substance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.