MUHAMMAD IJAZ KHAN, J. Through the instant revision petition, petitioners have challenged the judgment and decree of learned Civil Judge/Illaqa Qazi Swat dated 21.12.2009 whereby the suit filed by the present petitioners/plaintiffs was dismissed and that of judgment and decree of learned Additional District Judge/Izafi Zila Qazi Swat dated 10.04.2010 whereby the appeal filed by the present petitioners was also dismissed.
2. Precisely the facts of the case are that the present petitioners then plaintiffs filed a suit for possession through their right of pre-emption with respect to the suit property fully mentioned in the heading of the plaint which was sold out vide mutation No. 187 dated 16.01.2006 by defendant namely Behroz Khan to defendants Nos. 1 to 6 i.e. Nasir Khan and others. The petitioners/plaintiffs have pleaded in their plaint that they are having a superior right of pre-emption and that they have performed all Talbs as required under the law.
3. Respondents then defendants were summoned, out of them defendants Nos. 1 to 6 being vendees submitted their written statement whereby they specifically denied the plea of the petitioners/ plaintiffs as well as performance of Talbs and as such in view of the controversies between the parties the learned trial Court framed as many as nine (09) issues and the parties were required to produce their respective evidence. After recording of pro and contra evidence by both the parties, the learned trial Court vide the impugned judgment and decree dated 21.12.2009 dismissed the suit of the petitioners/plaintiffs primarily for non-performance of Talb-i-Muwathibit in accordance with the requirement of law. The aforesaid judgment and decree was challenged by the present petitioners before the Court of learned Additional District Judge/Izafi Zila Qazi Swat, however, he too dismissed the appeal of the petitioners/plaintiffs vide the second impugned judgment and decree dated 10.04.2010 by holding that the petitioners/ plaintiffs have performed Talb-i-Muwathibit, however, he held that they have not proved the performance of Talb-i-Ishhad and as such the judgment and decree of the learned trial Court was though maintained, however, on different ground. Petitioners have now challenged the aforesaid judgments and decree of the two Courts below before this Court through the instant petition.
4. Arguments of the learned counsel for, the parties were heard in considerable detail and the record perused with their able assistance. The main argument of the learned counsel for the petitioners was that the petitioners/plaintiffs have proved the performance of Talb-i-Ishhad as they have annexed the notice of Talb-i-Ishhad with their plaint and they have also produced the packer of the post office as PW-2 and who has supported the stance of the petitioners/plaintiffs that in-fact the notice was sent to the respondents/vendees and they have also produced one of the marginal witness of Talb-i-Ishhad namely Khalifa as PW-6. As against this, the learned counsel for the respondents/defendants argued that petitioners/ plaintiffs have neither proved their superior right of pre-emption nor they have performed Talbat in accordance with law.
5. There is no cavil with this legal proposition that for getting a favourable decree in a pre-emption case, a pre-emptor has to establish the performance of all the three Talbs i.e Talb-i-Muwathibit, Talb-i-Ishhad and Talb-e-Khusumat, however, in the present case petitioners/plaintiffs have not been able to prove the performance of Talb-i-Ishhad as it is the requirement of section 13 (3) of The Khyber Pakhtunkhwa Pre-emption Act, 1987 that after performance of Talb-i-Muwathibat, a pre-emptor has to send the notice of Talb-i-lshhad duly attested by two truthful witnesses to the vendee. The said section of law being relevant is reproduced below;- "13. Demand of pre-emption. ----(1) The right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption in the following order, namely:-- a) talb-i-muwathibat; b) talb-i-ishhad: and c) talb-e-khusumat Explanation.-- (1) "Talb-i-muwathibat" 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.
Note.---Any words indicative of intention to exercise the right of pre-emption are sufficient.
Explanation.---(ii) "Talb-i-ishhad" means demand by establishing evidence.
Explanation.---(iii) "Talb-i-Khusumat" means demand by filing a suit.
(2) ....................................
(3) Where a pre-emptor has made talb-i-muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 34, 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, confirming 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 talb-i-ishhad in the presence of two truthful witnesses.
The aforesaid provision of law mandates that the notice of Talb-i-Ishhad must be attested by two truthful witnesses and thus in order to prove the same a pre-emptor has to produce them in Court however, as against the aforesaid mandate of law the present petitioners/plaintiffs have not produced both the witnesses of the notice of Talb-i-Ishhad. The photo state copy of the notice of Talb-i-Ishhad is available on file which shows that the same has been signed by two witnesses namely Khalifa and Fazal Akbar, however, the record would show that out of them only one marginal witness namely Khalifa has been produced as PW-6, whereas the second marginal witness namely Fazal Akbar has not been produced in Court as a witness by the petitioners/plaintiffs and over and above the reason of his non-production has also not been brought on record, therefore, such failure on the part of petitioners/plaintiffs is a grave and blatant violation of the law as reproduced hereinabove, therefore, such notice of Talb-i-lshhad shall not be deemed to have been proved by the petitioners/plaintiffs. It may be noted that there is judicial consensus that a pre-emptor is bound to produce both the attesting witnesses of notice of Talb-i- lshhad. In the case of "Bilal Ahmad and another v. Abdul Hameed reported as 2020 SCMR 445 the apex Court has categorically held that where the pre-emptor failed to produce one of the two witnesses of the notice of Talb-i-Ishhad such notice was not stand proved and the suit of pre- emption was liable to be dismissed. Similarly, in the case of "Mst. Nusrat Bibi v. Nazir Akhtar" reported as 2015 SCMR 808 the apex Court has also held that production of two attesting witnesses of notice of Talb-i-Ishhad is a sine-qua-non for the proof of notice of Talb-i-Ishhad as mandated by section 13(3) of The Pre-emption Act, 1987, therefore, non-production of one of the witness of the notice of Talb-i-Ishhad by a party who is asserting the pre-emption right would lead to the conclusion that he has failed to prove the execution of notice Talb-i-Ishhad in, accordance with law. In the case of "Dawa Khan through L.Rs and others v. Muhammad Tayya b" reported as 2013 SCMR 1113 it was held by the apex Court that the provisions of section 13(3) of the Act require examination of two truthful witnesses, to prove the contents of the notice of talb-i-Ishhad, which is mandatory in nature. It is consistent view of this Court since 1995 that in order to prove a document, Article 79 of the Order of 1984, requires production of two attesting witnesses to testify the same in Court. The language of section 13(3) of the Act makes it mandatory upon the party to examine two truthful witnesses of the notice to prove talb-i-Ishhad; unless it is shown that one of the witnesses is untraceable and or has died, therefore, non-production of one of the witnesses, without showing sufficient cause and or plausible explanation would be violative of this mandatory requirement of proving talb-i-Ishhad., The evidence produced before the trial Court for proving the talb-i-Ishhad by the respondent, therefore, was violative of section 13(3) of the Act, as admittedly only one witness to the talbs was examined. The examination of the scribe by the respondent, in no way, can be construed to be in conformity with the language of section 13(3) of the Act read with Article 79 of the Order.
6. Another aspect of this case is that the notice of Talb-i-Ishhad has never been produced and exhibited by any of the witnesses of the petitioners/plaintiffs. When confronted the learned counsel for the petitioners offered an explanation that since the original notice of Talb-i--Ishhad was sent to the vendees/respondents, therefore, the same was not exhibited under the impression that a photostate copy of the same could not be exhibited, however, it may be clarified that under the law a secondary evidence of a notice (in this case the Talb-i-Ishhad notice) could be produced as sending of notice to the vendee is the requirement of law, as in this case the relevant provision is Article 77 of The Qanun-e-Shahadat Order, 1984 which is reproduced below;-
77. Rules as to notice to produce: Secondary evidence of the contents of the documents referred to in Article 76, paragraph (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by Law and, if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence-admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:--
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse parry must know that he will be required to produce it; The aforesaid provision of law unmistakably stipulates that a person shall not be allowed to produce secondary evidence unless he gave a notice to the person or his advocate in whose possession such document is however giving such notice shall not be required where the document is to be proved is itself a notice. So in view of the above when sending of notice of Talb- i-lsh had to vendee was the requirement of section 13(3) Pre-emption Act and that notice of Talb-i- Ish had was required to be proved, therefore, a Photostat copy of the same could be produced and exhibited but the petitioners/ plaintiffs have failed to produce and exhibit the same, therefore, he has not been able to prove the performance of Talb-i-Ish had.
7. During the course of arguments learned counsel for the petitioners also made reference that the respondents/defendants have admitted the receipt of notice of Talb-i-Ishhad in indirect manner, therefore, the petitioners/plaintiffs were not required to prove the same, however, it may be clarified that the affirmative onus to prove the receipt of notice of Talb-i-Ishhad is on the preemptor, therefore, any admissions on the part of vendee was immaterial and even thereafter it was obligatory for the pre-emptor to prove the sending of notice of Talb-i-Ishhad by leading affirmative evidence including production of the postman, who actually delivered or served upon the notices on the vendee but the said postman has not been produced, therefore, such explanation of the learned counsel for the petitioners too is immaterial. In the case of Allah Ditta through, L.Rs. and others v. Muhammad Anar reported as 2013 SCMR 866 the Hon'ble apex Court has held 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. It was further held 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. It was also held by the Hon'ble apex Court in the case of Bashir Ahmed supra that under the circumstances, to our mind it was imperative for the plaintiff, in order to succeed in the suit for pre-emption, to produce evidence, including the Postman, to prove that in fact notice was served upon the petitioner or that he refused to accept the notice, which was sent at his correct address. Similarly, in the case of Muhammad Bashir and others v. Abbas Ali Shah reported as 2007 SCMR 1105, the Hon'ble apex Court has also held that while there is no cavil with the proposition that in terms of Article 129 of the Qanun-e-Shahadat Order read with section 27 of the General Clauses Act, a presumption of service does arise if a notice sent through registered covered acknowledgement due is received back with the endorsement of "refused" by the postal authorities but if the addressee appears in Court and makes a statement on oath disowning receipt of notice, the presumption under the afore-referred provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the postman who made the endorsement. Similar view was also followed by the Lahore High Court in the case of Iffat Begum and another v. Robina Shaheen reported as 2014 CLC 1425, where it was held that the averments of the plaint and the testimony of P.Ws. produced by the plaintiff/ respondent are also silent about the delivery of alleged notice of Talb-e-lshhad to the petitioners/ defendants or they had ever received the same. The plaintiff-respondent also failed to produce Registry Booking Clerk of concerned Post Office and relevant Postman to prove the dispatch of notice Talb-e-Ishhad by the plaintiff-respondent and its delivery to the petitioner-defendants.
To my mind, in order to succeed in the suit for pre-emption, it was imperative for the plaintiff to produce evidence including the Postman to prove that in fact notice had been served upon the petitioners-defendants.
8. It may also be clarified that since the right of pre-emption is a feeble right, therefore, the pre- emptor has to prove the same. In the case of "Ashiq Muhammad Khan v. Additional District Judge Muzaffargarh and 04 others" reported as 2013 CLC 1033 it was held by the Hon'ble Lahore High Court that the right of pre-emption is a very feeble right and in order to succeed in the same a pre-emptor has to fulfill the requisite Talbs as envisaged in section 13 of the Punjab Pre-emption Act, 1991. Similarly, in the case of "Wazir Muhammad v. Haroon-ur-Rashid" reported as reported as 2014 CLC 706, this Court has held that pre-emption rights, being a feeble right, pre-emptor seeking to exercise such right was bound to perform and fulfill its requirement meticulously and any failure in that behalf would deprive him of success in getting a pre-emption degree.
9. In this case, the two Courts below have concurrently recorded their findings of facts and law as against the present petitioners/plaintiffs and in favour of the respondents/defendants, which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non-reading of evidence nor the same suffer from my illegalities or material irregularities, so as to warrant the interference of this Court in a revisional jurisdiction under section 115, C.P.C. 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 Nasir Ali v. Muhammad Asghar reported as 2022 SCMR 1054, it was also held that section 115, C.P.C empowers and mete but 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. The scope of revisional jurisdiction is limited 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 if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the 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. Similarly, in the case of Salamat Ali and others v.
Muhammad Din and others reported as PLD 2022 Supreme Court 353, it was also held that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon'ble apex Court in case titled Muhammad Samar and others v. Hashmal Khan and others reported as PLD 2022 Supreme Court 13, where in para-6 it was held that 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 meted 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. It was also held by the Hon'ble apex Court in para-10 of the judgment rendered in the case of Mst. Zarsheda v. Nobat Khan reported as PLD 2022 Supreme Court 21, that in the case of Shahbaz Gul and others v.
Muhammad Younas Khan and others (2020 SCMR 367), this Court declared 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 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 revisional jurisdiction. In the case of Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2022 SCMR 933, it was also held by the Hon'ble apex Court that the High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Court below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court but 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 interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered.
10. In view of the above discussion, the impugned judgments and decree respectively dated 21.12.2009 and 10.04.2010 are neither the result of misreading and non-reading of evidence nor petitioners could point out any jurisdictional defect in the same, therefore, the same are upheld and maintained and accordingly the instant revision is dismissed.