MUHAMMAD NAEEM ANWAR, J. Through the instant petition filed under section 115 of the Code of Civil Procedure, 1908, (C.P.C.) the petitioner has challenged the vires of judgment and decree of learned Additional District Judge-II, Lakki Marwat dated 10.02.2015, whereby his appeal as well as cross-objection filed by respondents were also dismissed.
2. Contents of the plaint when unfolded disclosed that petitioner filed a suit for recovery of possession through pre-emption for property measuring 01-Kanal and 10-Marlas purchased by the respondents through mutation No. 505 dated 14.05.2011 bearing Khasra Nos.2/95, 94, 78 of the revenue estate of Umar Titter Khel Tehsil and District. Lakki Marwat with the contentions that on 04.09.2011, Sunday, at about 08:00 PM (Ishaa vella), sitting in his house, was informed by Fahim Ullah about the sale of disputed property, he then and there pronounced his intention to pre-empt the sale in presence of informer and as such fulfilled "Talb-i-Muwathibat" which was followed by notice of "Talb-i-lshhad" (Ex.PW-4/4) dated 06.09.2011, sent under the cover of registered Acknowledgment Due. Suit was resisted by the vendees/defendants on various legal and factual objections. Completion of evidence resulted into dismissal of the suit by the learned trial Court vide its judgment and decree dated 18.01.2014. The ground of dismissal which prevailed upon the learned trial court were that two of the vendees were aged about 07 years and 12 years, therefore, being minors could not be sued. Learned trial court opined that the informer of the pre- emptor/petitioner could not explain the particulars of the land sold thus, the information could not be conveyed to the pre-emptor, therefore, "Talb-i-Muwathibat" was not properly proved and two of the vendees were minors who on one hand could not be sued whereas, on the other notices of "Talb-i-Ishhad" were not served upon them, as such "Talb-i-Ishhad" has not been proved: Findings of the learned trial court regarding issue No. 3 were in favour of the pre-emptor. Both the parties being aggrieved from the judgment and decree of the learned trial court have preferred their separate appeals. Learned appellate court dismissed the appeal as well as the cross-objection of respondents. The petitioner has filed the instant petition however, respondents have not assailed the judgment and decree of the learned appellate court.
3. Learned counsel for petitioner/plaintiff contended that when the pre-emptor has got the knowledge, about the sale, he was legally required to make "Talb-i-Muwathibat" and it was not the requirement of law to be aware in respect of the particulars of the disputed property. He added that it was not mentioned in the mutation that who is minor from the vendees; therefore, the suit was competently filed against vendees. He also contended that when notices were scribed and posted through the registered A.D than it was the duty of the officials of the post office to deliver it on the addressee as the duty of pre-emptor was only to dispatch the notice in consonance of sub- clause (3) of section 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987. He further contended that superior right of pre-emptor was not only admitted by the vendees but the patwari halqa has also stated in examination-in-chief that property of the plaintiff is contiguous to the disputed property and when the cross-objections of the vendees were dismissed, they have not assailed the finding of the learned appellate Court, as such the findings of both the learned courts below on issue No.3 have attained finality and vendees cannot attack the superior right of pre-emptor. He referred Ex.PW-1/6, Ex.PW-1/7 and Ex.PW-1/8 for the superior right of petitioner.
4. Conversely, learned counsel for respondents contended that without proving superior right, suit of the plaintiff lies nowhere against them, he referred to Ex.PW-1/8 and Ex.PW-1/6 and contended that one corner of the property bearing Khasra No.82 is touching Khasra No. 94 which is disputed one and one corner of property bearing Khasra No.21 is touching Khasra No. 78 which is disputed one, therefore, merely touching a corner of a particular Khasra number with the disputed one could not be considered contiguous to the disputed property, in accordance with explanation of section 6 of the Pre-emption Act, 1987, without which pre-emptor has got no right to sue the respondents.
In support of his contentions, he made reliance on PLD 2004 Lahore 12, Civil Appeal No. 1256 of 2008 decided by the apex court in suit titled "Allah Ditta v. Ali Muhammad" on 05.11.2015, 1999 CLC 831.
He added that the person who conveyed information to the informer of pre-emptor was required to be produced before the court in accordance with the dicta of Supreme Court of Pakistan in case titled "Subhan-ud-Din and others v. Pir Ghulam" (PLD 2015 SC 69). He while making reliance on 2006 MLD 1001 contended that the pre-emptor has failed to prove "Talb-i-Muwathibat" as well as "Talb-i-Ishhad" hence, he was not entitled for any relief. Lastly, he submitted that without filing cross-objections, the respondents/vendees can validly challenge/object the findings of both the learned courts below in a revision petition pending against them and provision of Order XLI, Rule 22 of the Code of Civil Procedure, 1908 would not affect them.
5. I have listened the learned counsel for the parties and with their able assistance scrutinized the record.
6. No doubt, in order to get a decree in a suit for recovery of possession through pre-emption, one of the requirements for pre-emptor was his superior right of pre-emption. In the instant case, admittedly, the pre-emptor is not a co-sharer rather as per Ex.PW-1/6 and Ex.PW-1/8 Khasra No. 94 and 2/95 (both are disputed) are adjacent to each other whereas, one corner of Khasra No. 94 and Khasra No. 82 is connected with each other, whereas and Khasras Nos. 78 and 94 (both are disputed) are contiguous to each other but one corner of Khasra No. 78 is connected with Khasra No. 21 as depicted in Ex.PW-1/8, shown towards West of the property but not even a single line/side of any of any survey number of the disputed property is connected with the property owned by petitioner/pre-emptor. The concept of compact block has been explained by the Hon'ble Supreme Court in the case of "Ahmed Khan v. Sattar Din" (PLD 1981 SC 148) wherein it was held that it is enough that some Khasra numbers were contiguous to the land sold by the vendor for the pre- emption had been sought in regard to a compact block of land sold by the vendor and the contiguity with even one of Khasra numbers was sufficient to entitle and plaintiffs to claim entire holding comprised in a sale. Similarly, in the case of "S.M. Khaliq Shah and another v. Haji Feroz Khan and others" (1983 SCMR 223) it was held that that "it is not necessary to prove contiguity of each Khasra number of the pre-emptors with that of the Khasra numbers forming subject-matter of the suit". Here in the instant case, there are two distinct "Khatas" one corner of Khasra No. 82 which is connected with Khasra Nb. 94 can neither be considered to be contiguous nor it makes a compact block. Similarly, Khasra No. 78 towards its Western side touches with Southern side of Khasra No. 21 at a particular place marked as "Al" could not be considered to be in connection or with relation to a compact block and for that matter do not demonstrates the contiguity of the pre-emptor with the disputed property. In the case of "Allah Ditta v. Ali Muhammad" in Civil Appeal No. 1256 of 2008, decided on 5th November 2015 the Hon'ble Supreme Court of Pakistan has held: "5. We next consider the respondent's purported capacity as shaft jar. In this regard the respondent had also placed reliance on the aforesaid exhibit (Ex. P-1) however an examination of this document reveals that the western corner of the said property merely touched the southern corner of the respondent's land. This in our opinion would not meet the requirement of the two properties being "adjacent" to each other in terms of the explanation to section 6 of the Act. With regard to this very aspect there is a precedent of the Lahore High Court (that had escaped the notice of the learned judge as well as the learned counsel appearing before the High Court) which was the case of Muhammad Ayub V. Hazrat Mansha (2006 MLD 1001) wherein Jawwad S. Khwaja, J (as he then was) had held: "The entire concept of contiguity in matters of pre-emption is based upon the premise that the owner of land sharing a common boundary with land, which is subject-matter of a pre-emption suit, should have a right superior co that of a purchaser who does not own land having a common boundary with the suit-land. In the present case it is quite evident that the suit land has no common boundary with the land owned by the respondent/plaintiff in Square No. 88. The mere fact that Killa No. 25 in Square No. 88 has one corner touching the corner of Killa No.1 in Square No. 102, which is part of the suit-land, does not result in any shared boundaries between the two and, as such, cannot be treated as being contiguous. It, therefore, follows that the ownership of the respondent/plaintiff in Killa No.25 of Square No. 88 does not vest in him a superior right of pre- emption in respect of the suit-land. "
7. In view of the principle laid-down by the apex Court, the petitioner has got no superior right on the ground of contiguity or compact block with the disputed property. The question before this Court is as to whether without filing of cross-objections or revision petition, could the respondents attack the findings of the learned trial court especially when before this Court revision petition of the petitioner is pending against the respondents and Order XLI, Rule 22 of the Code of Civil Procedure, 1908 has made any clog against the respondents for attacking the judgment passed in favour of respondents to the extent of a portion which goes against them. The Hon'ble Supreme Court in the case of (Province of Punjab through Collector, Rajanpur District and 2 others v.
Muhammad Akram and others) (1998 SCMR 2306) has held: "In such behalf even where a respondent has neither preferred a petition for leave nor resorted to an appeal, the Court has ample authority and full power to extend relief to him provided that such is necessary either to do complete justice between the parties or the case otherwise involves invocation of the Court's inherent powers. In so doing, however, the party likely to be affected adversely, would be entitled to be heard and place its own point of view as regards the order proposed to be, thus passed."
8. In the case of Suba and others v. Abdul Aziz and others (2008 SCMR 332) it was observed that:
5. We have heard the learned counsel for the parties at length and have also perused the relevant record. We find that issues Nos.3 and 5 were regarding estoppel and Talbs. The findings of the trial Court on both issues were against the respondents/pre-emptors. However, the findings of the trial Court on all other issues were in favour of the respondents. Issue No.4 was also of vital importance as to "whether the plaintiffs had got any superior right and pre-emptive right in respect of the suit- land as against the vendee-defendants? OPP". It is clear from the judgment dated 28-1-1999 passed by the Additional District Judge, Jampur, that the petitioners were precluded from addressing arguments as to the correctness of the finding of the trial Court on other issues including Issue No.4 merely on the ground that they had not filed any cross-objections or cross- appeal in the case. The course adopted by the Additional District Judge was violative of the provisions of Order XLI, Rule 22, C.P.C. and the judgment by a Full Bench of this Court in the case of Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74, authored by one of us (Faqir Muhammad Khokhar, J.). It was held therein that a party in whose favour a decree was passed, was not necessarily required to file an appeal or cross-objection as it could defend the decree on all the available grounds in support of the decree in appeal as provided by Order XLI, Rule 22, C.P.C., even though such grounds had been found against it. In Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and 2 others 1998 SCMR 2306 this Court had taken the view that where a respondent had neither preferred a petition nor filed an appeal, the Court had ample authority and full powers to extend relief to him provided that it was necessary either to do complete justice between the parties or the case otherwise involved invocation of Court's inherent powers.
Reliance can also be placed on Salah-ud-Din Butt and others v. Punjab Service Tribunal and others PLD 1989 SC 597, Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others (PLD 2011 SC 119). True, that the respondent has not filed cross objections before this Court but when an illegality was pointed out then in such circumstances this Court can exercise the jurisdiction provided under section 115 and has got the power to undo the illegality. I am of the view that respondents can validly attack the findings of the learned trial court or appellate court, while defending the judgment impugned before it, therefore, the objection of the learned counsel for petitioner is misconceived. Reference can be made to the judgments reported as Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001) Mushtari Khan v. Jehangir Khan (2006 SCMR 1238), Muhammad Nawaz alias Nawaza v. Member Judicial BoR and others (2014 SCMR 914) and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).
9. "Talb-i-Muwathibat" is in fact a jumping demand having its root in the right of pre-emptor but without any delay upon getting the knowledge of sale in question. It is sine qua non for pre-emptor to mention in the plaint the date, time and place of making Talb-i-Muwathibat and also to produce the informer, before the Court but neither it was the requirement of law to produce a person who has conveyed the information to the informer of the pre-emptor nor this I principle was enunciated by the Hon'ble Supreme Court in the case of "Subhan-ud-Din v. Pir Ghulam" reported as PLD 2015 SC 69 however, with regard to presence of preemptor at his house at the time of making of first talb was in doubt when the brother of pre-emptor was not in the knowledge that the preemptor has gone to Punjab or not about the fact which the plaintiff alleged that when he returned from Punjab he was informed by his brother. With reference to the above aspect of the case, apex Court has observed that "Taj Ali also stated that he learnt of the sale from his nephew Nazir, but Nazir, who can be categorized as a material witness, was not produced. Was it because he may not have supported the version of events as presented by the respondent or was it because Nazir had himself informed the respondent? Apart from the above narrated fact when the clarification of Talb-i-Muwathibat was needed by the Court, the production of informer of the informer was neither intended by the legislature nor has ever held to be sine qua non for the pre-emptor.
10. Insofar as compliance of sub-clause (3) of section 13 of the Pre-emption Act, 1987 is concerned, only duty of the pre-emptor was to dispatch the notice under cover of registered A.D with a proper address of the vendee and to prove it that notice was properly dispatched from the post office if the facility is available, he is not required to serve it upon the vendee either himself or through postman, rather it is the duty of the postman and if it is not served the while appearing before the Court will explain it and in case if the addressee denied from the receipt of notice then his statement shall serve the purpose for the purpose of sending of a notice through registered envelope under acknowledgment due.
11. One of the ground for non-suiting the pre-emptor by both the learned courts below that minors were sued without next friend, suffice it to say that the sale document does not reflect the minority or majority of a vendees, therefore, pre-emptor was not legally required to sue the vendee through next friend and when it was objected to by the respondents/defendants, the form of the suit was corrected, either the learned courts below were not properly assisted or it was overlooked, be that as it may, it was not a valid ground to dismiss the suit of pre-emptor against the respondents.
12. For the reasons discussed above, though the pre-emptor has proved his "Talbs" in accordance with law however, he could not prove his superior right being contiguous owner of the property in dispute comprising of three Khasra numbers or anyone of the these for making a compact block with the disputed property, which was one of the basic requirement for pre-emptor succeeding in a suit filed by him against the respondents, therefore, the dismissal of his suit is maintained, nevertheless, on the grounds as discussed above, hence the findings of both the learned courts below on issues Nos. 3 and 4 are reversed and the instant petition stands dismissed with no order as to costs.