MUHAMMAD NAEEM ANW AR, J. This revision petition under section 115 of CPC (1908) is directed against the judgement and decree of learned Additional District Judge-II, Charsadda dated 06-02-2012 whereby the Appeal filed by the respondents was accepted and suit of the petitioner was dismissed.
2. Necessary facts for the decision of this revision petition are that the petitioner has filed a suit for declaration seeking therein that the respondents through mutation number 685, dated 29-09-2006, have purchased the property , the details of which were given in head note (A) of the plaint, from Muazam Shah etc in lieu of Rs. 84000/- but in order to defeat the petitioners right of Pre-emption the kind of mutation was shown as that of Hiba instead of sale which is ineffective upon his rights, consequently , recovery of possession through pre-emption was also sought.It was averred that the he was informed by Mian Mujahid Shah on 29-09-2006 on Friday at about 5 p.m. when he was sitting in his House, situate d at Rafique Abad, Tehsil and district Charsadda and he there and then announced his intention to pre-empt the suit transaction in presence of informer and Irshad Ali Shah, made Talab-i- muwathibat, followed by a notices of the Talib-i-ishhad, which were scribed on 04-10-2006, duly attested by marginal witnesses, which were sent to respondents under the cover of acknowledgement due through registered post. He further averred that he was co-sh arer, having got right of appendages and contiguous owner , as such, has superior right of pre-emption. On the basis of above facts, it was prayed that mutat ion No. 685 may be declared as of sale and decree for recovery of posse ssion through pre-emption be passed in his favour in lieu of actual sale consideration. Suit was resisted by the respondent through written statement on different legal and factual objections. Both the parties produced their respective evidence and on conclusion of the trial, the suit of petitioner was decreed, however , on appeal the judgment and decree were set aside and the petitioner was non-suited, hence, this petition.
3. This petition is pending adjudication since 2012, when it was admitted on 15-06-2012. Both the respondents appeared on 24-10-2019 but, thereafter , the respondents never appeared.
4. Learned counsel for the petitioner contended that the mutation No. 685 ( Ex.Dw1/1), dated 26-06-2006, clearly reflects from column No.13 that the same was entered on the basis of an iqrar-nama, Ex.Dw2/2, whereby a settlement was made between respondents and Muazam Shah, by which the respondents has handed over the possession of 16-Kanal to him and in lieu whereof Muazam Shah has given the ownership rights of disputed property ( 6-Kanal) to them, thus, the transfer of disputed property in favour of respondents was not a gift and, thus, was pre-emptable. Next, he contended that "Hiba biliwaz" and "hibabasharat ul iwaz" were also not exempted from per-emption as provided in section 2(d) of Khyber Pakhtunkhwa, Pre-emption Act, 1987. He also argued that definition of Sale as provided in Transfer of Property Act, 1882, is different from the definition as given in the Act of 1987, but the learned appellate court failed to differentiate the same. Second limb of the arguments of learned counsel for petitioner was that the petitioner has performed the talabs as required by law but the appellate court has failed to appreciate the evidence in its true perspective.
5. Arguments head and record perused.
6. In order to determine the fate of mutation as to whether the same could be pre-empted or not, section 2 (d) of the Act,1987, is reproduced as under: -
(d) "Sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba-bil-iwaz or hiba bi-shartaliwaz but does not include:--
(i) transfer of an immovable property through inheritance or will or gift, other than hibabiliwaz or hiba bi-shart al- iwaz.
Yes, 'Hiba biliwaz' and 'Hiba bi-shart-al-iwaz' are preemptable. The 'Hiba' with a condition for something in return is called as Hiba-ba-shart-ul-iwaz . In this kind of hiba, the donee does not pay the consideration voluntarily , it is paid by the donee because it is a condition precedent for the gift. In other words, the gift and the 'iwaz' go hand in hand not one before the other . Payment of consideration is a prior condition (shart) for the gift. Therefore, subsequent gift by donee to donor is the condition precedent for the first gift in favour of the donee. The subsequent gift by donee to donor is not consideration of the first gift. The result is that in a Hiba-ba-shartul-i waz the original gift is a pure gift at its inception and the payment of Iwaz is also an independent gift. Accordingly , Hiba-ba-shartul-iwaz is nothing but a set of two independent gifts in which the second gift is condition precedent for the first. Any kind of property may be stipulated as return. The legal incidents of a Hiba-ba-shartul-iwaz are given below:
(1) As the whole transaction is a set of two independent gifts, therefore, it must be completed by declaration, acceptance and delivery of possession. Registration is neither necessary nor suf ficient for any of the two gifts.
(2) It is revocable in the beginning (i.e. when only the original gift has been made by donor to donee). But, as soon as the donee makes the gift of his property in furtherance of fulfilment of condition, the transaction becomes irrevocable.
(3) Since Hiba-ba-shartul-iwaz is legally a set of two independent gifts, therefore, the right of pre-emption is exercisable in it. There is a slightest dif ference between hibabiliwaz and Hiba basharat-ul-iwaz such as: i. In Hiba-bill-iwaz, the consideration is paid by donee voluntarily , whereas in Hiba-ba-Shartul-iwaz, its payment is a condition precedent. ii. In Hiba-bil-iwaz the consideration is at the will of donee but in Hiba-ba-shart ul- iwaz the value and kinds of consideration is at the discretion of the donor . iii. Hiba- bil-Iwaz is not a Hiba; it is either sale or exchange whereas Hiba-ba-shart-ul-iwaz is treated as Hiba. iv. Doctrine of Musha is not applicable to Hiba-bill-iwaz whereas this doctrine is applicable to Hiba-ba-shartul-Iwaz. v. Since Hiba- bil-iwaz is not gift, it is either sale or exchange, therefore it must be in writing and registered, whereas in Hiba-ba-Shartul-iwaz writing and registration is neither necessary nor suf ficient. vi. In Hiba- bil-Iwaz, the delivery of possession is not necessary whereas it is necessary in Hiba-ba-Shartul-iwaz. vii. The Hiba-bil-Iwaz becomes irrevocable as soon as made, whereas Hiba-ba-Shaatul-iwaz is revocable and becomes irrevocable only after the payment of iwaz by the donee.
7. Come what may, there was a specific stipulation. The respondents would hand over the possession to Muazam Shah and in lieu thereof he would transfer the right of ownership of 06-Kanal prope rty to them. This was not denied by respondents rather in para No. 2 of the facts of written statement, they have given the details of the transaction and during the course of evidence, the respondents have placed on file the "Iqrar Nama"as Ex.DW 2/2, therefore, by considering the transaction in question in juxtaposition with the afore- mentioned discussion on the subject of Hiba-b-sharat-iwaz, undoubtedly , there was transfer of property with a condition of handing over possession of property , thus, the transaction in question was a Hiba-b-sharat-al-iwaz and same was preemptable. The findings of learned appellate court to that extent are not correct, thus, modified.
8. In addition to the above, it is also evident from the record that the petitioner has become owner in the disputed property through Ex.PW 4/2, attested on 22-08-2006, prior to the disputed transaction, which was attested on 26- 09-2006, so, the petitioner has got superior right of pre-emption.
9. Adverting to talabs, contents of plaint reveal that talb-i-muwathibat was made on 29-06-2006, at 5:00 PM, when the petitioner was sitting in his house, situated at Faqir Abad, Charsadda, on the information of Mian Mujahid Shah.
Statement of informer (Mian Mujahid Shah) was recorded as PW-5, who is the resident of Hikmat Abad Sardehri Charsadda. He deposed that at 5 PM, on 29-09-2006, he was in his Hujra, when came to know about the disputed transaction. He went to his house where the petitioner and Irshad Ali Shah were sitting and he informed the petitioner . In view of the statement of Mian Mujahid Shah, at 5 PM, he was in his Hujra, whereas the plaint reveals that at 5 PM Mian Mujahid Shah was in the petitioner 's house, which means that exactly at 5 PM, the petitioner was not informed and the talab-i-muwathibat was not performed in the mode and manner as alleged. In Haji Muhammad Saleem. vs Khuda Bakash case (PLD 2003 SC 315 ), it was settled by the Supreme Court that: - "Moreover , the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre-emption.
The law as well as the fact is that the very right of pre-emption is not activated unless Talb-I-Muwathibat is performed. It should not be dubbed as a mere technicality at times, it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of preemption. The latter might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality , this Court in Said Kamal Shah's case PLD 1986 SC 360 would never have gone to the extent of saying that Talb-i- Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provisions qua Talb-i-Mutathibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of preemptors in the country were non-suited because of no assertion and performance of Talb-i-Muwathibat though not required by the then prevailing pre-emption laws in the country .
What we want to emphasis is that Talb-i-M uwathibat should not be taken lightly and should not be considered as a mere technicality . Technicalities are simple procedural matters and never have operated to activate certain material rights, .as it happens in the case of a right of pre-emption."
Likewise, the slightest Daley in making talb-i-muwathibat could not be ignored as held by the august Supreme Court in case Mian Pir Muhammad and another versus Faqir Muhammad Through legal Heirs PLD 2007 SC 302 that: "It is observed that great emphasis and importance is to be given to this word in making of Talb-i-Muwathibat and it is necessary that as soon as the pre-em ptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time."
In the same manner , notice of Talb-i-ishhad was not served upon vendee/ respondent No. 2, as deposed by the postman. It is also pertinent to mention here that there are contradictions in the statements of marginal witnesses of notices. Mujahid Shah deposed in cross examination that after scribing of notices they have dispersed from each other whereas Irshad Ali Shah stated in cross examination that after scribing of notices they proceeded to their village in the same vehicle, as such, the witnesses are not truthful as required by the Act of 1987. Reliance in placed on 2011 SCMR 1545 .
10. Thus, for the reasons discussed above, with the modification to the extent that transaction in question was pre- emptable, however , as the petitioner could not prove the requisite talabs, thus, this petition stands dismissed.