MUHAMMAD NAEEM ANW AR, J.----This single judgment in the instant petition (C.R. No.516-P/2017 titled "Said- ur-Rehman v. Raj Muhammad and another") shall also decide C.R. No.525-P/2017 titled "Haji Fazle Hakeem v.
Raj Muhammad and another" , not because that subject matter of both these petitions are same but also have arisen from the consolidated judgment in respective pre-emption suits, filed by Said-ur-Rehman and Haji Fazle Hakeem, against Raj Muhammad.
2. Respondent No.1 has purchased the property , measuring 15- Marlas, from Khasra No.4669 of the estate of Kalu Khan, Tehsil Razar District, Swabi, throu gh an un-registered deed, was challeng ed by Said-ur-Rehman through Suit No.127/i by alleging his preferential rights against him. It was asserted that Yasir Arafat son of Sher Rehman has informed him on 07.09.2005 at about 06:50 p.m, when he was standing outsid e the Mosque of Loda Khel with Mumtaz Ali son of Khushal Khan, no soon er did he get the knowledge, he pronoun ced his intention to pre-empt the same and on the next following day, notice of Talb-i-Ishhad was scribed, which was attested by the marginal witnesses and the same was posted on 09.09.2005, through registered acknowledgement due (A.D) to the vendee.
Haji Fazle Hakeem, the rival pre-emptor has instituted the Suit No.167/1 for recovery of possession through pre- emption of the property purchased by vendee/ defendant by alleging that Nawab Ali son of Nawaz Khan has informed him about the sale in question on 17.08.2005 at about 01:00 p.m, when he was sitting alongwith Muhammad Tahir son of Abdul Hakeem, in his Hujra, situated at Mohallah Loda Khel, and he at the spur of moment, declared his intention to pre-empt the sale. Notice of Talb-i-Ishhad was scribed, attested by the witnesses and sent through registered acknowledgement due (A.D) to vendee / defendant. He also claimed his superior rights against Raj Muhammad, vendee. He also alleged that in fact the sale made in lieu of Rs.60,000/- but an exaggerated amount, was mentioned, in an un-registered deed. Both the suits, being against the same sale were consolidated, which were opposed by the respective parties through their detailed written statements, on legal and factual objections. Parties were invited to produce their evidence, after completion of evidence, the learned Trial Court through consolidated judgment dated 30.06.201 1 has dismissed both the suits being not proved. Separate appeals were filed by the petitioner and rival pre-emptor . During pendency of the appeals, a compromise was effected between the petitioner (Said-ur-Rehman) and vendee Raj Muhammad), by which, the vendee has shown his consent for decreeing the suit in favour of preemptor namely Said-ur-Rehman, for which, an application was submitted before the learned Appellate Court and the statement of vendee was recorded. The learned Appellate Court, after hearing both the parties, has dismissed the appeal filed Haji Fazle Hakeem (rival pre-emptor), being not proved and decreed the suit on the strength of compromise in favour of Said-ur-Rehman, through consolidated judgment dated 23.11.2013. Haji Falze Hakeem (rival pre-emptor/petitioner of CR No.525-P/2017) had come to this Court through CR No.8-P/2014 against the judgment and decree of the learned Appellate Court. This Court in its judgment dated 25.01.2016, rendered in CR No.8-P/2014, allowed the petition filed by the rival pre-emptor , set aside the judgment and decree and remanded the matter to it for decision afresh. After remand, the learned Appellate Court through its consolidated judgment and decree dated 12.05.2017 has dismissed both the appeals.
The learned Appellate Court has not accepted the compromise effected between the petitioner and vendee / respondent (Raj Muhammad). Both, the petitioner and rival pre-emptor being dis-satisfied have assailed the judgment and decree of, the learned Appellate Court, through these petitions.
3. At the very outset, the vendee along with his counsel came up and submitted written compromise between him and petitioner , Said-ur-Rehman and contended that he has got no objection in decreeing the suit in favour of petitioner namely Said-ur-Rehman. The learned counsel for Haji Fazle Hakeem, rival pre-emptor strenuously opposed the compromise and contended that in suit like pre-emption, compromise cannot be accepted, he referred Order XXIII, Rule 1. He further contended that the petitioner / rival pre-emptor namely Haji Fazle Hakeem has proved Talbs in accordance with law and the learned Appellate Court has non-suited him on hyper technical ground. When he was confronted with the factum of Talb-i-Ishhad with reference to non-production of the Postman before the learned Trial Court, he contended that when the Postal Clerk was produced and his statement was recorded, there was no need to produce the Postman before the Court, he made reference to case titled "Liaqat Ali v. Safdar Khan" reported in (2020 SCMR 863). He added that Said-ur-Rehman, petitioner of C.R. No.516- P/2017 has not proved Talb-i-Muwathibat as well as Talb-i-Ishhad, therefore, no decree could be granted in his favour , either on merit or compromise.
4. Arguments heard and record perused.
5. It appears from record that the learne d Trial Court has not discussed the evide nce in its true perspective with reference to the Talbs, as alleged by the respective pre-emptors. Likewise, the learned Appellate Court too has fallen in error by not discussing the evide nce in consonance with the provisions of law, as such, this Court in its remand order dated 25.01.2016 has directed the learned Appellate Court to decide the appeals of the respective pre-emptors in accordance with law. This Court has also observed that no one could be allowed to defeat the suit of rival pre-emptor by maneuvering a compromise which ultimately affects the right of rival pre-emptor . After remand, the learned Appellate Court has exhaustively discussed the evidence, however , the conclusion of the learned Appellate Court with respect to Talb-i-Muwathibat was as under: "These words are clearly indicative of the fact that Majlis for talbs were formed prior to announcement of Talb-i- Muwathibat and before announcement Mumtaz Ali, PW-5 was specifically asked to note the time by Saeed-ur- Rehyman/appellant and thereafter he allegedly declared his intention to pre-empt the suit house".
For discarding the statement, the learned Appellate Court has observed that for a student of higher secondary school, it could not be believed that he informed the pre-emptor in such a transparent manner and to depose before the Court, the comprehensive and detail story .
6. The learned Appellate Court while discarding the evidence has also observed that it was beyond the imagination for informer to have informed the pre-emptor on the way and why not in the home. For the purpose of determining the factum of Talb-i-Muwathibat, the presumptions, speculations and imaginations, which maybe different in different mind should have been avoided rather the evidence and the manner in which it was produced should have been considered. If the evidence of the informer , preemptor and the witness of Talb-i-Muwathibat was in line and discarded on the analogy that it seems to be a Drama that they have formed the Majlis for the pronouncement of A Talb-i-Muwathibat and if the evidence is not supporting each other , the suit of the pre-emptor would be dismissed on the ground of discrepancies and contradictions then in both the eventualities, the law would stand no-where.
Likewise, the findings of the learned Appellate Court that why the pre-emptor was informed outside the Mosque in presence of other witness and not at home, such findings of the learned Appellate Court, if believed as true then it would tantamount that in natural way, the information may not be given but the informer should wait and have planned that the information would be given at home. If Talb-i-Muwathibat is allowed to be analyzed on the basis of probabilities and presumptions, then the suits would not be decided in accordance with law. It is cardinal principle of law that appreciation of evidence in civil cases is based upon the concept of preponderance of probabilities. The normal rule which govern civil proceedings is that a fact can be said to be established if it is proved by preponderance of probabilities. This is for the reason that under Qanune-Shahadat Order , 1984, a fact is said to be proved when the court either believes it to exist or consider its existence so probable that a prudent man ought under the circumstances of a particular case, to act upon the supposition that it exists. No doubt, evidence could be discarded but in no way on mere presum ption that why the statements of the witness corroborate each other or it might be tutored. The Court would have to judge what is on record and not in between the lines. Likewise, the Talb-i-Muwathibat performed by Haji Fazle Hakeem was also discarded without any proper appraisal of evidence.
The witnesses of both the pre-emptors have given the statement in comprehensive, direct and in natural way, though the witnesses were cross examine d not only by the vendee / defendant but also by the respective rival pre- emptor but none of them has been able to create a dent in their statements . Talb-i-Muwathibat was rightly performed by the pre-emptors.
7. Before discussing the factum of Talb-i-Ishhad, I intend to dilate upon the compromise effected between the rival pre-emptor/Said-ur-Rehman and vendee / defendant. The findings of the learned Appellate Court that pre-emption suits could not be decided on the basis of compromise, is also against the law and even the principle adopted by the learned Trial Court is alien to the Statute. Civil Law deals with the properties, rights, either moveable or immoveable, in which, at each and every stage, parties can enter into a compromise / settlement and Courts have vast powers to decide the lis on the basis of statement, so arrived between the parties, there could be only one exception that this compromise may not be made with or connivance between them, so that the 3rd party may not suffer or his right may not be adversely affected. Apart from the above, compromise is the best solution for removal of differences and it is always appreciated by the Courts of law, for which, certain specific provisions were also inserted in the C.P.C, such as, Alternate Dispute Resolution (ADR), conferencing and reconciliation and this was the reason when the provisions of Order XII, Rule 6 was made part of the Statute . The presumption drawn by the learned Appellate Court from the judgment of this Court, by which, the matter was remanded to it, was also not correct. This Court has never said that preemption suits cannot be decided through compromise. The matter was remanded to the learned Appellate Court for re-writing of judgment, as the evidence was not properly construed in its true perspective and the mandate of Order XLI, Rule 31, of C.P.C. Yes, both the matters were remanded irrespective of the fact of compromise, so that the rights of rival pre-emptor Haji Fazle Hakeem may not be adversely affected, keeping in view the provisions of Section 20 of Khyber Pakhtunkhwa Pre-emption Act, 1987.
Had there not been the suit of rival preemptor , there was no hurdle for entertaining the compromise for the purpose of amicable settlement and decision of the suit, filed by Said-ur-Rehman / pre-emptor .
8. It is also significant fact that rival pre-emptor namely Haji Fazle Hakeem has sent the notice of Talb-i-Ishhad through registered post under the cover of acknowledgement due (A.D) to the vendee, however , the vendee has categorically denied the refusal or receipt of notice of Talb-i-Ishhad. When it was alleged that vendee has refused to receive the notice of Talb-i-Ishhad from the Postman, then the pre-emptor was required to prove the sending of notice under the cover of registered acknowledgement due to the vendee. Even if, the vendee has admitted the receipt of notice of Talb-i-Ishhad, the pre-emptor was required to prove sending of the same as per the principle laid down by the apex Court in case titled "Sultan v. Noor Asghar" reported in (2020 SCMR 682) wherein, it was held that:- "3. There is no cavil to the proposition that the Plaintif f/Appellant was required to prove the Talbs in accordance with law. The performance of Talb is not a formality , rather it is substantial for the Plaintif f/Appellant to prove Talbs in accordance with, law, otherwise the Suit of the Plaintif f/Appellant is defeated. When confronted with as to whether the Defendant had admitted issuance and receipt of notice of Talb-i-Ishhad in the written statement, answer is negative. In this view, when the Plaintif f/Appellant failed to plead and prove performance of Talbs, a decree on the basis of any defect on the part of the Vendee/Defendant could not be passed. Even the argument that the Defendant has admitted issuance of notice of Talb-i-Ishhad is without force, and factually incorrect. The judgment of this Court reported as Allah Ditta through L.Rs. and others v . Muhammad Anar ( 2013 SCMR 866 ) is relevant".
9. It is consistent view of the apex Court that for proving the factum of notice of Talb-i-Ishhad, the production of Postman before the learned Trial Court is inevitable as held by the apex Court in Allah Ditta's case (2013 SCMR 866).
10. In case titled "Mir Muhammad Khan and 2 others v. Haider and others" reported in (PLD 2020 Supreme Court 233), wherein it was held that.- "18. Section 13(3) of the 1991 Act clearly sets out that the notice of Talb-i-Ishhad must be served on the vendor through Registered Post with Acknowledgment Due. However , it is obvious from the record that the address mentioned in the postal receipt is not the same as the one mentioned in the notice. Moreover , nothing in the record proves the assertion of the pre-emptor that the notice was ever served on the Respondent in the case, who in his written statement before the Lahore High Court as well as before the Lower Court s categorically denied service of the notice in question. Therefore, it fell upon the Appellant/pre-emptor in the case to prove that the notice had been delivered. By failing to prove the same or even producing the postman who allegedly delivered the notice, the Appellant/pre-emptor failed to establish the sending or receipt of the notice for the performance of Talb-i-Ishhad in this case".
11. Therefore, while drawing the wisdom from the principle of the cases (supra) and in the instant matter when receipt of notice of Talb-i-Ishhad was categorically denied and alleged by the pre-emptor / plaintif f (Haji Fazle Hakeem) that vendee has refused to receive the notice, in such circumstances, I am of the humble view that non- production of the Postman is fatal to the case in hand. So far as, the judgment delivered by the apex Court in case titled "Liaqat Ali v. Safdar Khan" reported in (2020 SCMR 863) in that case, the Postman was produced whereas in the instant case no Postman or his predecessor-in-of fice was produced before the Court, so, Talb-i-Ishhad was not proved as required by the law, therefore, the rival pre-emptor Haji Fazle Hakeem is not entitled for the decree, as such, he was rightly . non-suited by the learned Courts below and the concurrent findings to that effect cannot be reversed being not perverse, against the law and fact, reliance is placed on (2014 SCMR 1496).
12. As discussed in the last preceding para that at the time of remanding, the non-acceptance of compromise was only with the reason that rival pre-emptor Haji Fazle Hakeem may not be adversely affected from the decree in favour of pre-emptor Said-ur-Rehman, if both of them having equal right of pre-emption. When the case of Haji Fazle Hakeem is not in field, then there was no hurdle for the Court from accepting the compromise and decreeing the suit in favour of pre-emptor , on the basis of the statement made by vendee / defendant. Not only, there is a statement of vendee / defendant recorded and is available on record but even today he himself appeared alongwith his counsel and stated at the bar that he has got no objection, if the suit is decreed in favour of Said-ur-Rehman.
13. For the reason stated above, CR No.525-P/2017 is hereby dismissed, whereas, the instant C.R. No.516- P/2017 is allowed. Vendee / defendant in his written compromise has categorically mentioned that sale consideration has already been received by him, therefore, there is no order for pre-emptor to deposit the remaining pre-emption amount. Parties are left to bear their own costs. 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.