MUHAMMAD NAEEM ANWAR, J. This single judgment in the instant petition shall also decide C.R No.1257-P/2007 titled "Amir Zada v. Warq Shahzada and others" as both the petitions are the outcome of consolidated judgement and decree of learned appellate Court.
2. Sale in favour of petitioner by respondents Nos.3 to 6 regarding the property as described in the headnote of the plaint in lieu of Rs.60,000/- or the amount determined by the Court was assailed by respondents Nos.1 and 2 through their joint Suit No.54/1 for recovery of possession through preemption. Said sale transaction was also assailed by respondent No.7 namely Warq Shehzada through his Suit No.68/1 as a rival pre-emptor. Suit No.54/1 was instituted on 28.04.2001 whereas, Suit No.68/1 was instituted on 24.05.2001, therefore, Suit No.68/1 being filed later in time was consolidated with suit No.54/1 by the learned trial Court and amended plaints by arraying both the rival pre-emptors as a party in their respective suits were filed. From divergent pleadings of the parties through their pleadings, consolidated issues were framed by the learned trial Court, which read as under: Both the parties recorded their desired evidence and after completion of evidence, the learned trial Court through its consolidated judgment and decree dated 22.12.2006 in suit No.54/1 dismissed both the suits. The pre-emptors, being not satisfied from dismissal of their respective suits, have filed their separate appeals, which were allowed by the learned Additional District Judge/Izafi Zila Qazi, Dir through consolidated judgment and decree dated 26.07.2007 consequently, the judgment and decree of the learned trial Court was set aside and suits of the pre-emptors were decreed in terms of section 20 of Khyber Pakhtunkhwa Pre-emption Act, 1987, hence, these petitions.
3. Arguments heard and record perused.
4. Since, the pre-emptors i.e., respondents Nos.1, 2 and 7 were non-suited by the learned trial court on the ground of non-fulfillment of talabs and rest of the issues were decided in favour of the pre- emptors but said findings of the learned trial Court were not assailed by the petitioner/ vendee, therefore, I will confine myself to the extent of talabs allegedly made by the pre-emptors of their respective suits and since the findings of both the Courts are at variance therefore, evidence for the purpose of determination of talabs, requires reappraisal, in consonance with the pleadings of the parties.
5. It was contended by the pre-emptors/ respondents Nos.1 and 2 in their Suit No.54/1 that on 09.03.2001 (Friday) at 10:00 AM when they were present in the vegetable shop of Jamal Khan son of plaintiff No.1, situated in darora bazar, in presence of Ahmad Siyab son of Mir Azam and Muhammad Ghulam son of Bakht Rawan, one Wazir Khan son of Mir Khandan came there and informed them about the sale in favour of the petitioner/vendee, and they, there and then, immediately pronounced their intention to pre-empt the sale in presence of the informer and the other witnesses mentioned above, on the ground of their superior right against the petitioner/ vendee. They have alleged that Talb-i-Muwathibat was further affirmed by Talb-i-lshhad by sending a notice under the cover of registered acknowledgement due however, in those days vendee was at abroad, therefore, the notice was sent on his permanent address but it was not responded, which tantamount to his denial from their rights of pre-emption. They claimed to be co-sharers, continuous owners and having rights of appendages and amenities with the subject matter of suit. In order to prove Talb-i-Muwathibat, Noor Jamal entered into the witness-box as PW-3, being the special attorney for both the pre-emptors, the power of attorney was placed on file as Ex.PW3/1. He deposed that plaintiff No.1 is his father while plaintiff No.2 is his first cousin. The contents of Para No.4 of the plaint do not reflect the name of special attorney as Noor Jamal son of Mir Dilawar and his presence in the majlis of Talb-i-Muwathibat. It is pertinent to mention that the place of making of Talb-i-Muwathibat was shown as shop of Jamal Khan who is the son of pre- emptor No.1 and Noor Jamal is also son of pre-emptor No.1 Mir Dilawar. During the course of arguments, learned counsel for respondents/ pre-emptors contended that in fact the name of Jamal Khan as reflected in plaint, is Noor Jamal which was inadvertently mentioned in plaint as Jamal Khan instead of Noor Jamal. in view of the contention of learned counsel for respondents, it will be seen as to whether attorney could make a statement on behalf of both the pre-emptors being based upon the powers given by the pre-emptors to their attorney namely Noor Jamal. In the case of "Abdul Qayum v. Muhammad Sadiq (2007 SCMR 957), it was observed by the apex Court that: "The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-i-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be a substitute of the pre-emptor under the law, therefore, notwithstanding the provision of section 14 of Punjab Pre-emption Act, 1991 according to which if a person is unable to make demand under section 13 (ibid), his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-i-Muwathibat in person and secondly, this exception appears to have been created to meet a situation in which either the pre-emptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-i-Muwathibat himself and appear in Court in person."
This view was reaffirmed by the Hon'ble Supreme Court in the case of "Mst. Dilshad Begum v. Nisar Akhtar" (2012 SCMR 1106), wherein it was held that: "There is no cavil to the proposition that a pre-emptor can be represented through an attorney but there has to be valid reasons for non-appearance which in the instant case are lacking. The learned High Court condoned this infirmity and reversed the concurrent judgments on the ground that though educated but she could not "afford and endure the agonies of appearing as a witness in civil matters". Little did the High Court realize that it is in evidence that the power of attorney was given by her in favour of P.W.7 Habib-ur-Rehman in the premises of the tehsil court. If she could appear at tehsil level, what prevented her to appear before the trial Court or having herself examined through a commission in terms of section 132 of the Civil Procedure Code."
The contents of the power of attorney do not reflect a valid reason, which could be considered as a justification for appearing of Noor Jamal, being attorney for pre-emptors instead of their personal appearance in the witness-box. No plausible reason or explanation has been mentioned in Ex.PW3/1. Noor Jamal or Jamal Khan was allegedly the witness of majlis where the first talab was made by the pre-emptors who could depose to substantiate the contentions of pre-emptors but without any valid reason or justification he could not appear as witness to prove the talb-i- muwathibat by the pre-emptors. Moreover, both the pre-emptors have not explained in Para No.4 of the plaint that who has made Talb-i-Muwathibat first and it was followed by the latter. Both the pre-emptors were required to make a specific reference pertaining to date, time and place of their talabs in consonance with the principle laid down by the apex Court in the cases (supra). Due to non-appearance of the pre-emptors personally in the witness-box and that too without any valid reason/ justification, they have failed to make Talb-i-Muwathibat, which was root for the suit of pre-emption.
6. Wazir Khan, the informer entered into the witness-box as PW-6. Though, he has mentioned the date of making of Talb-i-Muwathibat but has not deposed/mentioned the time of making of Talb- i-Muwathibat in his examination-in-chief. Mentioning of date, time and place in the pleadings and its proof through evidence is sine qua non for the pre-emptor. Informer was one of the significant witnesses, who too was required to corroborate the stance of the pre-emptors and when the informer has not deposed regarding time of making of Talb-i-Muwathibat, it tantamounts to a failure on part of the pre-emptors regarding the factum of making of Talb-i-Muwathibat. Reliance is placed on the case of Malik Muhammad Afzal Khan v. Mir Hawas Khan and 8 others (2009 MLD 535). Ahmad Siyab (PW-4), who happened to be the witness of majlis of Talb-i-Muwathibat as well as marginal witness of notice of Talb-i-Ishhad, in his cross examination, deposed that in his presence, PW-6 Wazir Khan only said that Rs.10,000/- were paid by Yousaf son of Noroz, however, regarding the rest of the facts, he is totally unaware.
7. PW-2 namely Fazal Wadood, clerk of post office was produced as a witness by the pre-emptors, who in his cross examination deposed that notice was not sent under the cover of registered A.D.
Admittedly, Fazal Wadood, is not a postman, as such, service of the notice on the addressee has not been proved by the pre-emptors. Apart from the statement of PW-2, no official from the post office has been produced before the Court. Production of concerned postman is of vital importance and his non-production is fatal for the right of the pre-emptor. Pre-emptors were required to send the notice under the cover of registered AD and to prove its service on the addressee/ vendee but the same has not been proved by him, therefore, Talb-i-Ishhad has also not been proved by the pre-emptors. Reliance may be placed on the case of "Allah Ditta through L.Rs and others v. Muhammad Anwar" (2013 SCMR 866) wherein, it was held by the apex Court- that: "As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two courts below."
8. Turning to the suit of the rival pre-emptor i.e., Warq Shehzada. After consolation of the suits, Warq Shehzada was placed as defendant No.6 in Suit No.54/1 and he appeared as DW-1 before the learned trial Court. He, in his examination-in-chief, reiterated the facts as alleged by him in the plaint that on 21.04.2001 he was present in his house situated at Darora at 02;00 PM along with Shahi Islam, Muhammad Nazir, Muhammad Wali and Gulawar Khan, when in the meanwhile Amir Shahab-ud-Din son of Abdul Khaliq resident of Darora came there and informed him about the sale in favour of the petitioner/ vendee and he, without wasting even a spur of moment, announced his intention to pre-empt the sale in presence of the witnesses of the same sitting.
Muhammad Nazir (DW-2) was the witness of majlis of Talb-i-Muwathibat who, in his cross examination, deposed that on 20.4.2001 the pre-emptor came from abroad. He, in his cross examination, further deposed that he proceeded to the house of Amir Zada at 02:10 PM whereas, Warq Shehzada, the pre-emptor deposed that at 02:00 PM, he was present in his house along with Muhammad Nazir and on getting the knowledge about the sale, announced his intention to pre- empt the suit property, while Muhammad Nazir firstly deposed that at 02:00 PM, he went to the house of Amir Zada. If this fact is taken as correct then exactly at 02:00 PM when the informer proceeded to the house of pre-emptor Warq Shehzada, the witness namely Muhammad Nazir (DW-2) was not present rather he entered into his house at 02:00 PM. Amir Shahab-ud-Din who happened to be the informer of the sale in his cross examination contended that notice of Talb-i- lshhad was written on 21.04.2001 and that he proceeded to the house of Amir Zada, the vendee at 02:00 PM but he was not present at that time. DW-6 was the postman namely Baz Muhammad who deposed that after expiry of 18 months, record of the post office pertaining to registered envelops has been destroyed, thus, the factum of service of notice of talb-i-lshhad remained a mystery.
From the statements of DW-1 and DW-3 it can safely be concluded that Talb-i-Muwathibat as alleged by the pre-emptor exactly at 02:00 PM was not pronounced by respondent No.7 Warq Shehzada as his informer deposed that at 02:00 PM they have proceeded to the house of the present petitioner and there is a walking distance of about 10 minutes between the house of pre- emptor and that of the present petitioner. In accordance with the principle as set out by the apex Court in the case titled "Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others" (PLD 2007 Supreme Court 302), a slightest delay even of 2/3 minutes in making of Talb-i- Muwathibat is sufficient to non-suit the pre-emptor. Admittedly, notice of Talb-i-Ishhad has not been served upon the vendee. Reference may be made to the case of Haji Muhammad Salem v.
Khuda Bakash (PLD 2003 SC 315), wherein it was reported 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-Muwahibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of pre-emptors 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-Muwathibat 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."
9. It is pertinent to mention that during the course of arguments, learned counsel for the pre- emptors contended that mentioning of date, time and place of making of Talb-i-Muwathibat in the pleadings and proving it through evidence is not the requirement of law, however, this argument of learned counsel in not consonance with the case law reported as PLD 2007 SC 302 (supra) and consistent view of the apex Court, thus, his submission is neither supported by the substantive law nor by the precedents. Next, he argued that both the pre-emptors being the owners in the property are entitled for the decree on, the principle of "Zarar" and "Zaroorat", however, this submission is alien to the statute of 1987, as such, the pre-emptor is required to prove the talabs, superior right, filing of suit within time and only then he could be held entitled for the decree. The phenomenon of "Zarar" and "Zaroorat" does not exist in Khyber Pakhtunkhwa Pre-emption Act, 1987. Even otherwise, when zarar and zaroorat were the part of Punjab Pre-emption Act of 1991 to the extent of section 6(2), the Shariat Appellate Bench of Hon'ble Supreme Court in the case of "Haji Rana Muhammad Shabbir Ahmad Khan versus Government of Punjab Province, Lahore (PLD 1994 SC 1) has held it to be repugnant to the injunction of Islam when it was observed that: "23. No doubt, the basic philosophy of the law of pre-emption is to avoid Zarar, but is not incumbent upon a plaintiff in the case of pre-emption to prove the Zarar in each case individually. The traditions of the Holy Prophet (p.b.u.h.) on which the right of pre-emption is based, have never referred to a concept of Zarar, nor did they make it a precondition for the exercise of this right. Instead, the existence of Zarar has been assumed in every case of pre- emption where a plaintiff has fulfilled the basic conditions for the right of pre-emption, such as making the three Talabs, which will automatically show that he wants to avoid Zarar by his laying the claim of pre-emption. Therefore, the procedure prescribed for the three Talabs is sufficient to establish the right and an additional condition to prove the Zarar, cannot be imposed on a plaintiff in the case of Shurah.
24. Although the removal of Zarar can be taken as a basic philosophy underlying the law of pre- emption, but in the manner in which it has been laid down in section 6(2) of the Act 1991 it has become a precondition for the exercise of the right of pre-emption and onus to prove the Zarar has been laid on the plaintiff without which he has been denied the right of pre-emption. The logical result of section 6(2) is that if a person who is a co-sharer of a vendor has made all the three Talabs required under section 6(1) of the Act 1991, but did not mention in his plaint that his claim to pre-emption is based on the Zarar apprehended by him, his claim to pre-emption shall be rejected. Such a person is entitled to the claim of pre-emption under the express traditions of the Holy Prophet (p.b.u.h.), but section 6(2) debars him from the right of pre-emption. Therefore, this subsection contravenes the Injunctions of Islam as laid down in the Sunnah of the Holy Prophet (p.b.u.h.), and the judgment of the Federal Shariat Court being well-founded, the appeal of the Punjab Government in this respect is dismissed."
Wisdom may also be drawn from the case of "Rehmat Ali through Legal Representatives v.
Muhammad Younis and others" (PLD 2014 SC 680).
10. Apart from the above, it is of equal significance that Mr. Ihsan Ullah, Advocate who is representing the pre-emptors of both the suits, who are rival against each other and there is a conflict of interest of both the pre-emptors, which is visible that all the witnesses of suit No.54/1 were cross examined by the rival pre-emptor and witnesses of rival pre-emptor in suit No.68/1 were cross examined by pre-emptors namely Mir Dilawar and another. Therefore, both could not engage one and same counsel keeping in view their clash of interest. Be that as it may, the pre- emptors have not been able to prove their respective cases in consonance with the law and the principles laid down by the apex Court as well as by this Court.
11. Though the findings on issue pertaining to superior right of rival pre-emptors, in view of non- fulfilment of talabs, have lost its efficacy, however, the findings of learned Appellate Court pertaining to the rights of three pre-emptors being based upon the principle of per capita as held by the apex Court in case titled "Khan Gul Khan and others v. Daraz Khan" (2010 SCMR 539) that if there are more than two pre-emptors or the rights of the pre-emptors and that of the vendee are equal then the property shall be distributed amongst all of them on the basis of per capita.
12. For the reasons discussed above, the findings of the learned Appellate Court are the result of misreading and non-reading of the record/evidence and misapplication of law which cannot sustain, therefore, on acceptance of both these revision petitions, the impugned judgment and decree of the learned Appellate Court dated 26.07.2007 is hereby set aside and consequently, the suits of both the pre-emptors i.e., Suit Nos.54/1 and 68/1 are dismissed, with no order as to cost. The pre-emptors may withdraw the pre-emption amount as deposited by them, in accordance with law.