FAZAL SUBHAN, J. Instant revision petition is filed by petitioner Miandad Khan, wherein, he challenged judgment and decree dated 30.11.2012 passed by learned Additional District Judge-II, Mansehra, whereby, Civil Appeal No. 17/13 of 2011, filed against the judgment and decree passed by Civil Judge-XII, Mansehra dated: 31.01.2011 was accepted and judgment and decree of learned trial Court was set-aside and suit of plaintiff/respondent was decreed.
2. Relevant facts of the case, precisely, are that the respondent/plaintiff filed suit for possession through pre-emption in respect of property, fully described in the heading of plaint, situated at Mouza Data, Tehsil and District, Mansehra, contending that petitioner/defendant purchased suit property from Muhammad Ismael in consideration of Rs. 1,50,000/- but entered an inflated amount of Rs. 4,30,000/- in the impugned mutation No. 4697 attested on 23.08.2006 to defeat his pre- emption rights. Respondent/plaintiff contended that on 25.08.2006 he was present in his house, situated in village Kanghar Garhi Data when informer namely Qalandar son of Mir Abdullah, at 8:00 PM, informed him regarding the sale of the suit property and he immediately, and in presence of informer, made talb-e-m uwatabit. Thereafter, he scribed notice of talb-e-ishad in presence of Mohy-ud-Din and Shafique-ur-Rehman, through Khursheed petition writer, and sent the same to petitioner/defendant. It was further contended 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, petitioner/defendant has no such rights. That petitioner/defendant 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 petitioner/defendant was summoned, who appeared and filed written statement. From the pleadings of the parties, learned trial Court framed issues, where-after hoth the parties availed opportunity of producing their desired evidence. Respondent/plaintiff in order to prove his case examined Jan Nisar NOK as PW-1, who produced record of mutation No. 4697 attested on 23.08.2006 (Ex PW-1/1), Patwari Halqa as PW-2, Qazi Fasih-ud-din (Postman) as PW-3, Muhammad Saleem (Postal Clerk GPO, Mansehra) as PW-4, Muhammad Khurshid (Petitioner writer) as PW-5, Muhammad Anwar, Mohi-ud-Din and Abdul Majeed as PW-6, PW-7 and PW-8, while respondent/plaintiff himself appeared in witness box as PW-9 and thereafter, closed his evidence. On behalf of petitioner/defendant his attorney namely Shad Muhammad recorded his statement as DW-1. Learned trial Court after hearing arguments of both the sides through judgment dated: 31.01.2011 dismissed the suit of respondent/plaintiff. Appeal No. 17/13 of 2011 filed by respondent/plaintiff against the said judgment, was accepted by learned Additional District Judge-II Mansehra vide dated: 30.11.2012 and suit of respondent/plaintiff was decree, thus giving rise to the instant revision petition.
4. Arguments of learned counsel for parties heard and record perused.
5. The law of pre-emption contains provisions which are purely technical in nature and its compliance in accordance with mandates of law are of paramount importance and consideration.
A pre-emptor, therefore, in order to succeed to get favourable decision in is favour must prove the necessary conditions laid down in Section 13 of the Act, which includes Talb-e-Muwathibat or immediate demand in the majlis or gathering where he receive an information of the sale, Talab- e-Ishad or establishing evidence and Talb-e-Khasoomat.
6. From amongst these conditions, Talb-e-Muwathibat or jumping demand has to be proved with reference to time, date, place and the gathering or majlis where pre-emptor receives information of sale and the person who conveyed such information and secondly Talb-e-Ishad or sending notice signed by the two truthful witnesses. In the event of failure of preemptor to prove these talbs then the other aspects like superior right in the land would lose its vitality and importance.
7. Analyzing the case in hand on the touch stone of above conditions, it is the stance of respondent/plaintiff in the plaint that on 25.08.2006 at 08:00pm, night time, he was informed by Qalandar son of Mir Abdullah, while present in his house situated at Kangar Garhi Dakhli Danna that petitioner/defendant has secretly purchased the disputed property and therefore, he in the presence of Qalandar son of Mir Abdullah made announcement of pre-emption, whereafter, he checked the revenue record of Patwar Halqa and after satisfaction of the sale, he on 30.08.2006, prepared notice Talb-e-Ishad through Muhammad Khurshid, deed writer, in the presence of Mohinddin and Shafiq-ur-Rehman which was thumb impressed/signed by them respectively and were sent to the petitioner/defendant through registered acknowledgement due (AD).
8. The respondent/plaintiff, when appeared in the witness box, reiterated the same facts, as narrated in the plaint, however, during cross-examination, he replied that at the relevant time of information, his other family members were also present, which fact has not been mentioned by him in his plaint or his court statement. His cross-examination also reveals that after receiving the information of sale he did not pronounced his immediate demand of Talb-e-Muwathibat by saying that;
9. This clearly shows that the informer Qalandar came for the first time and conveyed the information of sale and he remained with the pre-emptor for 5 to 10 minutes but no immediate demand was made. His statement further shows that Qalandar, informer, came for second time and this time when he was about to leave, then the preemptor disclosed his intention to preempt the disputed property. This clearly shows that respondent/plaintiff has not convincingly disclosed about the meeting or majlis and the presence of his other family members at the time of information and at the same time, after receiving information he, for 5 to 10 minutes, kept silent and did not made Talb-e-Muwathibat immediately after receiving the information and therefore he has failed to perform Talb-e-Muwathibat in accordance with law.
10. From the contents of plaint, it is revealed that the preemptor got knowledge of the sale on 25.08.2006, however, admittedly, he visited the office of Patwari Halqa on 24.08.2006, i.e. one day prior to the alleged information of sale. Record further reveals that disputed property was sold by one Ismail, brother of the pre-emptor, hence it cannot he said that he was unaware of transaction, especially when he admitted in cross-examination that the petitioner/defendant was in possession of the disputed property and was cultivating crops thereon. Thus, the record reveals that respondent/plaintiff was in the knowledge of sale prior to 25.08.2006 and after consulting the record and getting knowledge of sale, he concocted a fake story of getting information of sale on 25.08.2006, hence, in that situation he has waived of his right of pre-emption under section 15 of the Act.
11. So far as performance of Talb-e-Ishad is concerned, it is evident from para 5 of the plaint that till filing of suit on 15.09.2006, the AD Card was not returned. In proof of sending of notice Talb-e-Ishad, PW-04 Qazi, Faseehuddin was examined who in his statement admitted that the registry was delivered at the resident of petitioner but he was not present at his house and his other relatives refused to receive it. No second attempt was admittedly made to serve the registered notice nor any witness on the spot was mentioned either regarding non-availability of petitioner or refusal of his other relatives to accept the same. PW-05 is Muhammad Saleem Postal Clerk, GPO, Mansehra, who admitted that record of the registry has been destroyed after 18 months and stated that registry receipt No. 695 was issued from their post office while in cross-examination he admitted that the name and address of sender of the registry No. 695 is not entered. Respondent when put to cross-examination in respect of the notice Talb-e-Ishad, replied that he does not know about the notice and further replied that he does not know when notice was written.
12. Record shows that notice Talb-e-Ishad is shown to have been scribed and signed by two marginal witness Mohinuddin and Shafique-ur-Rehman, however, amongst the two only Mohinuddin was examined as PW-07 whereas Shafique-ur-Rehman did not appeared and instead his brother Abdul Majeed was examined as PW-08. Though PW-7 Mohinuddin has admitted his thumb impression on the notice but he has not mentioned how, when, and in what manner they visited the office of deed writer for preparation of notice. In cross-examination he replied that he has no relationship with the respondent and a night prior, he was informed by pre-emptor to accompany him for scribing the notice. That they left their house at 08:00 a.m. and reached there at 10:00 a.m. He further replied that notice was read over to the respondent but it was not read over to him. When his statement is put in juxtaposition to the statement of Muhammad Akbar respondent, it reveals that there is gross contradiction in respect of time, mode and manner of preparation of notice. More so, when the contents of notice were not read over to PW Mohinuddin then he had no knowledge of details of the notice or for what purpose it is prepared. Word "attested" used in Section 13(3) of KP Act, does not mean mere putting thumb impression on a documents means that he has to testify about the contents and has to depose as witness of such document, however, when a witness to whom a document is not at all recited then his statement would not be considered as that of a witness "attesting" the notice, in conformity with the provision of Section 13(3) of the Act.
13. It is further noticed that Shafiq-ur-Rehman was not produced to verify the signing of notice and instead his brother Abdul Majeed was examined who stated that his brother is out of the country for the last two years and that notice Ex PW-5/2 bears signature of his brother. Admittedly, no proof of his brother being abroad, was made available nor any other document bearing his signature was produced for comparison of the court. Thus, firstly the respondent has failed to produce and examine both the witness of notice Talb-e-Ishad and the sole attesting witness had no knowledge of the contents or for that matter, the purpose of scribing and sending of notice Talb-e-Ishad, hence, the requirements of Section 13(3) of the Act has not been legally complied.
14. It is now well settled that when talbs as per law are not proved through cogent and convincing evidence, then other factors like superior right of pre-emption and market rate or sale price become subsidiary and irrelevant and courts need not to enter into these aspects which would be an exercise in futility.
15. For what has been discussed above, it has been found that the respondent has failed to prove both Talb-e-Muwathibat and Talb-e-Ishad in accordance with law and therefore the learned Additional District Judge-II, Mansehra, while upsetting the judgment of the learned Civil Judge-XII, Mansehra, has committed serious error of law and facts and the impugned judgment passed by him is wrong and illegal and is not sustainable, hence, by accepting this revision petition judgment dated 30.11.2012 whereby suit of the respondent was decreed is set aside and his suit stand dismissed.