FAZAL SUBHAN, J. Instant revision petition is filed by petitioner Tahir Mehmood Khan under section 115 of Civil Procedure Code, 1908, wherein, he challenged judgment and decree of the Court of Civil Judge-XI, Abbottabad dated: 16.02.2012 passed in suit No. 123/1, whereby his suit was dismissed, and judgment passed by learned District Judge, Abbottabad dated: 22.06.2015, affirming the judgment of trial Court. Through this civil revision petition, the petitioner has prayed for setting aside the above judgments and passing of decree in his favor.
2. Relevant facts of the case are that the petitioner filed suit for possession through pre-emption in respect of property, fully described in the heading of plaint, situated at Mouza Nawanshehr, Junubi, Tehsil & District, Abbottabad, contending that the petitioner got information of sale on 13.08.2009 at 6:00 PM through his brother Abas Khan, (when he was sitting) in his (Abbas Khan) house in the presence of Hameed Fazil son of Haji Akbar of Nelor and Azhar Mehmood son of Ayaz Khan r/o Dhodial and he there and then, in the same Majlis declared that he will pre-empt the suit property and thus, completed the requirement of Talb-e-Muwatabit and on 17.08.2009 sent notice Talb-e- Ishad to the respondents duly signed by Abas Khan and Asad Ali Shah. It was contended in the suit that petitioner has got superior right of pre-emption being co-owner in the suit khasras and has got all other rights and amenities attached to the suit property, whereas, respondent has no such rights. That respondent was time and again asked to receive the actual sale consideration and handover the property to him but he refused, hence, he filed the suit.
3. After institution of suit respondent was summoned, who appeared and filed written statement.
From the pleadings of the parties, learned trial Court framed issues, where-after, both the parties availed opportunity of producing their desired evidence. Petitioner examined Azhar Malik (Clerk Post office) as PW-1, Chanzeb Patwari as PW-2, Ghulam Mustafa Tanoli, (Notary Public) as PW-3, Khalid Mehmood (Postman) PW-4. Plaintiff himself recorded his statement as PW-5. Abas Khan and Azhar Khan appeared as PW-6 and PW-7, Asad Ali Shah as PW-8, where-after, petitioner closed his evidence. From opposite side, one Muhammad Saleem Khan (respondent No.1) appeared and recorded his statement as DW-1. Learned trial Court after hearing arguments of both the sides through judgment dated: 16.02.2012 dismissed the suit. Appeal No. 65/13 of 2013 filed by petitioner also met the same fate, hence, this revision petition.
4. Arguments of learned counsel for parties heard and record perused.
5. After perusal of record, it is apparent that the petitioner was unable to prove talb-e-mowatibat within the four corners of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. Petitioner was required to prove that as soon he got information of the sale, he there and then and in the same sitting or majlis has announced that he would exercise the right of pre-emption. Section 13 of the Khyber Pakhtunkhwa, Pre-emption Act, 1987, relates to the demands or talabs, which are prerequisites to enforce the right of pre-emption. Explanation to "talb-e-mowatibat" is provided in section 13 (1) of the ibid Act, which reads as under: Explanation."Talb-e-Mowatibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption.
6. In the plaint as well as in his statement recorded as PW-5, petitioner asserted that on 13.08.2009, he was sitting in the house of his elder brother AbBas Khan alongwith Azhar Mehmood Khan and Qazi Hameed Fazal, his brother Abbas Khan came and informed him about the sale of two kanal two marlas land from khasra No. 2805 and 2807 and he there and then made jumping demand to pre-empt the suit property. That on 15.08.2009 he went to Patwari Halqa where he came to know that vide mutations No. 6384, 6385 and 6395, two kanal property have been transferred in the names of respondents and thus, on 17.08.2009, he sent notice Talb-e-Ishad to respondents duly signed by witnesses. Petitioner in his cross examination has admitted that prior to institution of present suit, he also filed a pre-emption suit against one Atif Iftikhar Jadoon, in respect of mutation No. 6356 attested on 23.10.2009. In his cross examination, he totally deviated from his stance and replied that at the time when he made pronouncement of pre-emption, it was between Zohar and Asar time. He also replied that he has instituted a suit titled: Tahir Mehmood Khan Vs. Atif Iftikhar Jadoon, copy of which was shown to him and placed on filed as Ex PW-5/D-1 and admitted that at the time of filing said suit, he had gone through contents of the fard annexed with the said suit and that he procured the said fard on 18.04.2009. He further replied that he pre-empted three different mutations. His brother Abbas Khan, the alleged informer in his cross examination regarding the same question replied that he cannot say whether it was Zohar or evening time when he conveyed the information. This shows that the petitioner and his witness are not aware about the time when information was communicated and the time when the petitioner Tahir Mehmood Khan pronounced his intention to pre-empt the suit mutations.
7. From the above statements, it is also clear that the petitioner who is well-versed with the revenue record instituted another suit, copy of which is Ex PW-5/D-1 against Atif Iftikhar and he got copy of the fard (revenue papers) on 18.04.2009 to file pre-emption suit, which clearly shows entries of mutations No. 6385, 6386 and 6395 over leaf but he at the relevant time did not made announcement of talb-e-muwatabit at the relevant time.
8. It is also in the evidence of petitioner that property transferred through the suit mutations was originally purchased by Qazi Fazal ul Rehman Khan in the name of his daughter Mst. Sughra Bibi as bainami and at the time of attestation of mutation in the name of Atif Khan a dispute arose between the LRs of Mst. Sughra Bibi and other LRs of Qazi Fazal ul Rehman and finally Qalandar Khan etc LRs of Mst. Sughra Bibi transferred the legal share to other LRs without any sale consideration and a nominal price was mentioned in the mutation. This fact is admitted by the petitioner and his witnesses in their evidence which shows that the suit mutations were not sale mutations rather these mutations were attested to compensate other LRs of Qazi Fazal ur Rehman.
This fact is further proved from the statement of Chanzeb Patwari Halqa who in cross examination brought Ost Yaksala of the suit land which shows the price of land as Rs. 9,23,641.60/- per kanal, whereas, in the suit mutations Rs. 58,000/- Rs. 71,000/- and Rs. 71,000/- are mentioned for total area of two kanal and two marlas.
9. Regarding talb-e-Ishad, it is on record that petitioner has not sent original notices to the respondents and after preparing one original notice three copies were prepared and jointly sent to the respondents at the same address, whereas, it is in the evidence that all the respondents are residing at different places. Thus, non-sending of original notices to each of the vendees as well as sending such photo copies on the same address would amount to non-performance of talb-e- Ishad and suit for pre-emption can alone be dismissed on this score.
10. From the above discussion, it is held that neither the petitioner has proved the requirements of talb-e-muwatabit nor has issued notice talb-e-Ishad in accordance with law. At the same time, petitioner was already in the knowledge of transfer of land on 18.04.2009 and his assertion that he was informed about the transfer of land through suit mutations on 13.08.2009, is fake and fabricated and it is held that suit was hit by section 16 of the Pre-emption Act, 1987.
11. In view of these facts and legal position, it is clear that two Courts below have properly appreciated the record and have correctly dismissed the suit as well as appeal of petitioner, hence, the instant revision petition being devoid of any substance is hereby dismissed.