SHAHID KHAN, J.- In the subject civil revision petition has been filed u/s.115 of the Code of Civil Procedure, 1908, the petitioners Faqir & Sarwar Shah have called in question the legality, validity and jurisdiction error in the judgment & decree of the learned Additional District Judge/Izafi Zilla Qazi-II, Buner, dated 10.09.2014, vide which, their appeal was dismissed and the judgment & decree, dated 18.07.2012, of the learned Civil Judge/ Illaqa Qazi-I, Buner, regarding the dismissal of suit for a decree of possession through pre-emption, was upheld. against Khan Zada, Umar Zeb & Mira Jan sons of Sher Zaman residents of Sabar Shah, Anghapur, District Buner, ("the respondents") in respect of the property fully described in the headnote of the plaint, before the learned trial Court.
3. The respondents were summoned by the learned trial Court, upon which, they turned up and then, submitted their written statement, thereby they negated the pre-emption right of the petitioners by raising several legal & factual objections as well as non-performance of Shari Talbat.
4. Issues were framed and evidence of both the parties was recorded. The learned trial Court, after hearing arguments of the learned counsel for the parties, dismissed the suit and appeal thereagainst, also met the same fate. It obliged the petitioner to approach this Court for getting appropriate relief through filing the instant civil revision petition.
5. Arguments of learned counsel for the parties heard and gone through the record with their valuable assistance.
6. It is transparent from the floating facts made available on record that the pre-empted property measuring 04 Kanal out of 08 Kanal 17 Marla comprised on surveys No.2322, 2320, Khata No.817 Khatoni No.1340, situated at the revenue estate Anghapur of Tehsil Daggar, District Buner, has been purchased by the respondents vide mutation No.2544 attested on 17.06.2011, in lieu of sale consideration Rs.1,220,000/-. On the said sale, the petitioners being contiguous owners in possession to the suit property, have exercised their rights of pre-emption to the effect that they had got knowledge of the pre-empted sale on 12.07.2011 at 06:30 PM in their Baitak (guestroom) through one Khyber son of Muhammad Ghani, in the presence of witnesses Usman Ghani s/o Ghulam Ghani & Abdul Hamid s/o Hamza, and as soon they made the jumping demand of Talab- e-Muwathibat by expressing their intention for pre-emption over the suit property. Thereafter, the petitioners drafted a Notice Talb-e-Ishhad through their counsel and served upon the respondents via registered mail on 15.07.2011 (Friday), thereby the petitioners asked them to receive the actual sale money from them in lieu of handing over physical possession of the pre-empted property but with no positive response. So, the petitioners approached the learned trial Court on 20.07.2011 through filing the present suit for pre-emption. The respondents refuted the claim of the petitioner on the grounds that firstly, the petitioners had once waived off their right of pre-emption as they were asked to purchase the pre-empted land prior to execution of sale in question but they refused to do so. Secondly, the petitioners haven't performed the requisite Talbat as per Shariah' and law.
7. There are much more contradictions and discrepancies in the evidence of the petitioners regarding the performance of Shari Talbat being backbone of a pre-emption case. As per mandate of Section 13(2) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 ("the Act, 1987"), when a fact of sale comes in the knowledge of a pre-emptor through any source, who shall make Talab-e- Muwathibat. Consultation of record reflects that the petitioners had got knowledge of the sale in question on 12.07.2011 at 06:30 P.M in his Baitak after performing Asar prayer through Khyber son of Muhammad Ghani in the presence of witnesses Usman Ghani & Abdul Hameed and as soon, he performed Talb-e-Muwathibat a jumping demand for expressing his intention to exercise his right of pre-emption. In this regard, petitioner No.2, Sarwar Shah, recorded his statement as PW3, wherein, he deposed in his cross-examination that on 12.07.2011, he after performing Asar prayer in his Masjid at 06:30 PM, straightaway went to his Baitak. In those days, the Aser prayer timing was 06:30 PM. He got 4 or 5 minuets on performance of prayer and took 05 minutes on the way to his Baitak from the Masjid. He after shaking hands with the guests, went to his house for bringing tea to serve on them. Relevant portion of his cross-examination is reproduced herein below: -
8. Usman Ghani, PW4, deposed in his cross examination that on the day of Talb-e-Muwathibat, he performed Asar prayer in his house at 06:00 PM as in those days Asar prayer time in the Masjid was 05:45 PM and when he reached to the Baitak at 06:15 PM, Abdul Hamid, Sarwar Shah & Faqir were present there and none else was there until they left the Baitak.
Relevant part of his cross-examination is reproduced as follows:
9. Khyber son of Muhammad Ghani, PW5, who is the informer. He deposed in his cross-examination that he got knowledge of the pre-emption sale from Said Afzal. He performed Asar prayer in the Masjid at 06:00 PM and then went to the Baitak of petitioners. The distance in between the Masjid & Baitak is of 20 minutes. He after shaking hands with the inmates of the Baitak drunk water and then informed them of the pre-emption sale. A specific quotation of his cross-examination is as follows:
10. The contradictions & discrepancies reflected above suggest that the petitioner couldn't substantiate their case with regard to the performance of Talb-e-Muwathibat through firm, reliable, cohesive, and trustworthy evidence.
11. Now coming to the performance of Talb-e-Ishhad, the second important essential for preemption suit. In order to establish Talb-e-Ishhad under section 13(3) of the Act, 1987, the pre- emptor must send a notice in writing attested by two witnesses, under registered cover acknowledgment due to vendee, confirming his intention to exercise the right of pre-emption. The respondents have clearly denied the performance of Talb-e-Ishhad, whereas, it is the duty of petitioners to establish the factum of Talb-e-Ishhad through reliable & trust worthy evince but the petitioners/pre-emptors to do so while no notice was received by the vendee/respondents. As the general law of 'service by post' would not be applicable in respect of pre-emption as the same was attended to by the specific law on the subject, i.e., section 13(3) of the Act, 1987, stipulates, 'registered cover acknowledgement due' and not just dispatch by registered post. The meaning of 'service by post' as described in section 26 of the West Pakistan. General Clauses Act, 1956 which is applicable to the province of Khyber Pakhtunkhwa, is as under: - "26. Meaning of service by post---Where any Provincial Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or `send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
It would also be appropriate to reproduce Subsection 3 of Section 13 of the Act, 1987, as under: "(3) Subject to his ability to do so, where a pre-emptor has made Talbe-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge, whichever may be earlier make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confessing his intention to exercise the right of pre- emption: Provided that in areas where due to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talbi-Ishhad in the presence of two truthful witnesses."
12. The vendee/respondent has denied receipt of the notice Talb-e-Ishhad. PW6, Fazal Rahim, Postman, produced receipts of registries Ex:PW6/2 to Ex:PW6/4 regarding the dispatch of notice Talb-eIshhad but during his cross-examination, he showed ignorance as to whether the above referred registries had been received by the respondents or not. The relevant portion is reproduced below:
13. The facts stated above, there is no proof on record that the notices Talb-e-Ishhad have been served upon the vendees/respondents in accordance with law as the pre-emption is attended to by its own law, which provides the manner for sending notices. The general law as contained in section 26 of the Provincial General Clauses Act, 1956, would not be applicable. Section 13(3) of the Act, 1987 stipulates. "under registered cover acknowledgment due, whereas, the words "acknowledgment due" are not mentioned in section 26 of the General Clauses Act, 1956 applicable to the Province of Khyber Pakhtunkhwa. Reliance is placed on the case of "Khan Afsar v. Afsar Khan and others" (2015 SCMR 311), wherein, the Hon'ble Apex Court has held as follows:- "7. [...] The general law as contained in section 26 (supra) of the Provincial General Clauses Act, 1956 would not be applicable. Section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 stipulates, "under registered cover acknowledgment due" (emphasis added) whereas the words "acknowledgment due" are not mentioned in section 26 of the General Clauses Act, 1956 applicable to the Province of Khyber Pakhtunkhwa. In the case of Muhammad Bashir (supra) it was held, that:
11. The requirement of, 'sending a notice in writing' is followed by a rider i.e. 'under registered cover acknowledgment due'. This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to preempt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere 'sending of notice' is enough would make the expression 'acknowledgement due' redundant. The service of the addressee as prescribed in law therefore is imperative. If the acknowledgment card carried an endorsement of 'refusal' or 'not accepted', a presumption of service would arise unless it is rebutted. The expression 'sending notice' came up for consideration in Thammiah b. v. Election Officer [1980] 1 Kant LJ. 19 and the Court held that it means, 'that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it."
14. Even, the petitioners/pre-emptors have not exhibited the alleged notices of Talb-e-Ishhad in their evidence and only attached its photocopy which couldn't be legally considered, whereas, the statements of alleged witnesses of Tath-e-Ishhad notices are contradictory, not believable. In the case of "Khurshid Akbar v. Saadullah Khan" [2001 CLC 981 (Peshawar High Court)], wherein, this Court has held: - "19. The argument of the learned counsel for the-petitioner that the notice of Talb-e-Ishhad was not exhibited, therefore, the same cannot be taken into consideration even if placed on record also has a force in it. The respondent/plaintiff though examined Muhammad Nazir Khan postman, Gujar Garhi Mardan (P.W.2), Nooruddin Clerk Post Office Gujar Garhi (P.W.3), Dost Muhammad (P.W.4) and Fateh Khan (P.W.5) in order to prove that notice of Talb-e-Ishhad was sent to the petitioner/defendant but the notice itself was not exhibited. Order 13, Rule 1 envisages that the parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power on which they intend to rely. No doubt photostat copy of the notice was annexed with the plaint but in law it cannot be taken into consideration as the same was not exhibited in evidence. In a case reported as Pakistan Insurance Corporation v. Asian Mutual Insurance Co. Ltd. 1999 MLD 3298 it was held that document neither pleaded nor exhibited in evidence could not be IC taken into consideration."
15. The scope, extent and domain of revisional jurisdiction, of this Court has elaborately been dilated upon by the Hon'ble Apex Court in its recent judgment titled Mst. Zarsheda vs. Nobat Khan (PLD 2022 Supreme Court 21), where in para-10 it was observed as follows: "10. In the case of Shahbaz Gul and others v. Muhammad Younas Khan and others (2020 SCMR 867), this court held that where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower courts should not be overturned by the High Court in its revisional jurisdiction under section 115, C.P.C. Between two possible interpretations, the one adopted by the trial and appellate courts should have been maintained, keeping in mind the limited scope of revisions! jurisdiction. Whereas in the case of Ahmad Nawaz Khan v.
Muhammad Jaffar Khan and others (2010 SCMR 984), this court expressed that High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C. In the case of Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), the court held that the provisions of section 115, C.P.C under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities.
The revisional jurisdiction of the High Court cannot be invoked against conclusion of law or fact, which do not, in any way, affect the jurisdiction of the court. In the case of Atiq-ur-Rehman v.
Muhammad Amin (PLD 2006 SC 309), this court held that the scope of revisional jurisdiction is confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law but the interference for the mere fact that the appraisal of evidence may suggest another view of the matter, is not possible in revisional jurisdiction. There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law.
This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage."
16. Similar view was also reiterated by the Hon'ble Apex Court in a judgment in the case titled Muhammad Sarwar and others vs. Hashmal Khan and others (PLD 2022 Supreme Court 13), where in para-6 it was held as under: "6. It is well settled exposition of law, deducible from plethora of dictums laid down by superior courts that section 115, C.P.C. empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the court ought to exercise jurisdiction and in exercising jurisdiction, the court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the courts below, it has no power to interfere in the conclusion of the subordinate court upon questions of fact or law. In the case of Atiq-ur-Rehman v. Muhammad Amin (PLD 2006 SC 309), this Court held that the scope of revisional jurisdiction is confined to the extent of misreading or non- reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law but the interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction. So far as challenge to the concurrent findings of the courts below in the revisional jurisdiction of the High Court, this Court has held in the case of Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), that High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C.
Similar view was taken in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) that the concurrent findings of three courts below are not opened to question at the revisional stage."
17. In view of the forgoing discussion, learned counsel for the petitioners has not been able to make out a case for interference of this Court in its revisional jurisdiction, therefore, the subject Revision Petition stands dismissed being bereft of merits.