SYED MUDASSER AMEER, J. Respondent/ plaintiff's suit for possession through pre-emption was decreed by Civil Judge-I, Havelian vide order dated 28.05.2011. Petitioners/ defendant's appeal against the said order was also dismissed by Additional District Judge-VI, Abbottabad vide order dated 24.03.2014. Both these judgments have been challenged through the instant Civil Revision Petition filed under section 115 of CPC.
2. Respondent/plaintiff filed a suit for possession through pre-emption in respect of property fully described in the headings of plaint, contending therein that respondent/ plaintiff came to know about the sale transaction between the defendants and Muhammad Ashraf on 09.05.2007 at about 1100 hours at his house through Badi ul Zaman and in the said Majlis he then and there performed Talb-e-Muwathibat which was followed by issuance of notice Talbe-Ishhad to the petitioners /defendants through registered AD on 12.05.2007. It was further pleaded in the plaint that the respondent/plaintiff has got superior right of pre-emption and that the petitioners /defendants were asked to receive the actual sale consideration and handover/transfer the property to respondent/plaintiff but they refused, hence, the suit.
3. After institution of suit, petitioners /defendants were summoned, who appeared and filed written statement and from the divergent pleadings of the parties, learned trial Court framed issues, where-after, both the parties adduced their respective evidence. After hearing of learned counsel for parties, the learned trial Court/Civil Judge-I, Havelian vide judgment and decree dated: 28.05.2011 allowed the suit of respondent/plaintiff. Being aggrieved with the aforesaid judgment and decree, the petitioners/defendants preferred an appeal, the learned appellate court vide judgment and decree dated: 24.03.2014 dismissed the appeal. Hence, the instant revision petition.
4. Arguments of learned counsel for parties were heard in considerable detail and record perused.
5. In pre-emption cases, it is the prime and statutory duty of the pre-emptor to prove the performance of all the talbs i.e talb-i- muwathibat, talb-i-ishhad and talb-i-khusumat, however, in the present case, the respondent/plaintiff has not been able to prove the performance of talb-i- muwathibat and talb-i-Ishhad as per requirement of section 13 of The Khyber Pakhtunkhwa Pre- emption Act, 1987. Section 13 is reproduced below for ready reference: Demand of pre-emption.--The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely
(a) talb-i-muwathibat;
(b) talb-i-ishhad: and
(c) talb-e-khusumat.
Explanation (i) "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.
(Underlying supplied)
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) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make talb-i-mawathibat.
(3) Where a pre-emptor has made talb-e-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 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: (Underlying Supplied)
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.
(4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat under sub-section
(2) and talb-i-ishhad under sub-section (3), he shall make talb-i-khusumat in the court of competent jurisdiction to enforce his right of pre-emption.
6. Section 13 of The Act of 1987 unmistakably requires that the pre-emptor has to perform talb-i- muwathibat immediately and in the same meeting/Majlis in which he/she gets information of sale and thereafter, pre-emptor is required to send a written notice to the vendee to convey his/her intention of purchasing the sold out property. It is, by now, well settled that the pre-emptor is bound to prove the date, time and place of talb-i-muwathibat. Similarly, pre-emptor is also bound to prove that he/she has served upon the vendee notice talb-i-Ishhad duly attested by two truthful witnesses confirming his intention to pre-empt. However, if the aforesaid yardstick is applied to the case of respondent/plaintiff, on the basis of his evidence he has not been able to prove either the performance of talb-i-muwathibat or talb-i-Ishhad. As averred in the plaint, the respondent/plaintiff came to know about the sale transaction between the defendants and Muhammad Ashraf on 09.05.2007 at about 1100 hours at his house through Badi ul Zaman and in the said Majlis he then and there performed Talb-e-Muwathibat, which was followed by issuance of notice Talb-e-Ishhad to the petitioners/defendants through registered AD on 12.05.2007.
However, in the plaint he failed to mention the names of the two witnesses who had attested the notice Talb-e-Ishhad. In a recent judgment in the case of KASHMALI KHAN and others Versus Mst.
MALALA reported as (2023 SCMR 1176) the Apex Court has held as follows: - "4. This brings us to consider that whether the formalities essential for making Talb-i-Ishhad were duly observed by the plaintiffs. Before going into that, it is important to mention here that by Talb-i- Ishhad, or demand by establishing evidence,1 is meant the calling of two witnesses by the pre- emptor to attest his making of the first demand (Talb-i-Muwathibat) to strengthen his claim for pre-emption. The calling of witnesses is not necessary for the validity of his claim for pre-emption, it is on the other hand, intended to provide the pre-emptor with proof when the vendee denies the demand (Talb). This position of law unequivocally suggests that proving the presence of witnesses is one of the material facts, within the contemplation of Order VI, C.P.C., which establishes that the essential formalities for making Talb-i-Ishhad were observed by the pre-emptor. As such, it was mandatory for the plaintiffs to first state the names of the witnesses for Talb-i-Ishhad in their plaint and then prove their attestation by producing them in Court. Keeping this legal obligation in mind, we examined the contents of the plaint to ascertain whether the names of the witnesses of Talb-i-Ishhad had been disclosed therein. On perusal, it was found that the plaintiffs had omitted to mention the names of such witnesses in the plaint. The right of pre-emption is but a feeble right.
As it disseizes another who has acquired a property in bona fide manner for good value, it entails that the ritual of the Talbs must be observed to the letters, and any departure, howsoever slight it may be, defeats the right of pre-emption. We, therefore, hold that the aforesaid omission is fatal to the claim proffered by the plaintiffs.
(Underlining supplied)
7. During the course of arguments, learned counsel for respondent contended that the law enunciated by the Honourable Supreme Court in the judgment reported as 2023 SCMR 1176 is not binding, as it is in conflict with an earlier judgment rendered by a larger Bench of five Honourable Judges of the apex Court given in the case titled Peer Muhammad vs. Faqir Muhammad (PLD 2007 SC 302). According to the learned counsel, in the said earlier judgment, it was authoritatively held that the omission to mention the names of witnesses of Talb-e-Ishhad in the plaint is not fatal to a pre-emption suit. However, this contention of the learned counsel for the respondent is misconceived and not tenable. A careful reading of the judgment reported in PLD 2007 SC 302 reveals that no such principle of law has been laid down therein. Rather, the said judgment explicitly emphasizes that the failure to mention the date of issuance of the notice of Talb-e- Ishhad in the plaint is fatal to the suit for pre-emption. There is no authoritative holding in the judgment that the omission of the names of the witnesses to the Talb-e-Ishhad notice is permissible or not detrimental to the maintainability of the suit. It appears that the misunderstanding has likely arisen due to the misleading summary contained in headnote "(d)" of the published version of the judgment, which does not accurately reflect the ratio decidendi of the case. The discussion in the said judgment primarily revolves around the mandatory requirement to mention the date, time, and place of the Talb-e-Muwathibat in the plaint. However, in the concluding paragraph of the judgment, the Honourable Supreme Court has held that the non- mentioning of the date of issuance of the notice of Talb-e-Ishhad in the plaint would also render the suit defective. Therefore, the reliance placed by the learned counsel for the respondent on the ibid judgment is misplaced, and the interpretation drawn from the headnote as well as the conclusions derived therefrom are contrary to what has actually been held in the judgment itself.
The law laid down in the case of Kashmali Khan and others Versus Mst. Malala (2023 SCMR 1176), being a direct and authoritative pronouncement on the issue, holds the field and is binding.
8. It was further contended by the learned counsel that the suit in the present case was instituted in the year 2007, and therefore, the legal position enunciated by the Hon'ble Supreme Court at a later stage pertaining to the requirement of mentioning the names of witnesses in the plaint would not2 3 be applicable to this case. This contention too is devoid of merit and cannot be sustained. The reason being that the Supreme Court has not introduced or laid down any new law nor amended the law in this regard; rather, it has only clarified the correct interpretation of the already existing statutory provisions. The interpretation provided by the apex Court is declaratory in nature and is deemed to have retrospective effect, thereby applying to all pending and instituted matters alike, including the instant suit. Similar, objections were raised after the judgment in the case of Mian Pir Muhammad and another Versus Faqir Muhammad through L.Rs and others (PLD 2007 302), which was dealt with by the apex Court in the case of Haq Nawaz Versus Muhammad Kabir (2009 SCMR 630) as follows:- "7. As to the next contention of the learned counsel for the petitioner regarding applicability of the above referred case i.e. Mian Pir Muhammad (supra), on the pending cases filed before the pronouncement of the said judgment, it may be mentioned here that proposition in hand stands answered by this Court in the case of Mst. Bashiran Begum v. Nazar Hussain and another, PLD 2008 SC 559, wherein, it was held that the requirement of mentioning the date, place and time in the plaint is also essential even in the pending cases. The relevant portion of the said judgment reads as follows:-- "According to the dictum laid down by the larger bench of this Court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending cases."
Thus this contention too, has no force."
Reliance is also placed on a recent judgment of Honourable Supreme Court in the case of Taisei Corporation and another Versus A.M. Construction Company (Pvt) Ltd and another (2024 SCMR 640), wherein while referring of cases of Malik Asad Ali v. Federation of Pakistan [(PLD 1998 SC 161) (10MB)] and Muhammad Khan v. Haider [(PLD 2020 SC 233) (5MB)] it was held as follows:- "We all know that while interpreting a provision of law or construing its effect, a constitutional court only declares what the law is and does not make or amend it. The law so declared by the court, therefore, as a general principle applies both prospectively to future cases and as well as retrospectively to pending cases, including the one in which it is declared. It is only as an exception to this general principle that while considering the possibility of some grave injustice or inconvenience due to the retrospective effect, the courts sometimes provide for the prospective effect of their judgments from such date as they think just and proper in the peculiar facts and circumstances of the case.
9. Perusal of the case record further reveals that the informer, namely Badi uz Zaman (PW-5), in his examination-in-chief, failed to mention the time when he informed the respondent/plaintiff about the sale and when he made the jumping demand, i.e Talb-e-Muwathibat. PW-5 stated that on 07.05.2007 he visited the house of Ashraf (the vendor), who informed him about the sale, from there he went to respondent/plaintiff's house and informed him about the sale where the plaintiff made the jumping demand. Although PW-5 stated that he visited the house of the plaintiff that day, this assertion is vague and unreliable, particularly in the absence of exact time and corroborative detail or supporting evidence. The inconsistency and lack of clarity regarding the exact time of the visit casts serious doubt on the veracity of the plaintiff's version of events. Moreover, in his cross examination he stated that he had visited the house of Ashraf on 07.05.2007 at 11:00 AM, thereby belying the respondent/plaintiff's claim that at 11:00 am Badi uz Zaman was in his house informing him about the sale and also his claim of making the jumping demand at that particular time.
10. In pre-emption matters, the performance of Talb-i-Muwathibat, the immediate demand, is a mandatory and essential requirement of law, which must be proved with clarity and precision. In the present case, the plaintiff has failed to establish the promptness and immediacy of Talb-i- Muwathibat through credible and trustworthy evidence. As such, the requirements of Section 13 of the Khyber Pakhtunkhwa Pre-Emption Act,1987, have not been fulfilled. Consequently, due to the doubtful and unconvincing nature of the testimony of PW-5 regarding the timing of the alleged visit, the plaintiff has failed to discharge the burden of proving the performance of Talb-i- Muwathibat in accordance with the settled principles of law.
11. As far as the service of notice talb-i-Ishhad upon the respondents/defendants, is concerned, albeit the respondent/plaintiff has produced Azhar Malik Clerk PO Kutchery Abbottabad, who produced the receipts # 1230, 1231, 1232 & 1233 as well as AD cards, however, in order to prove his case regarding delivery of notice upon the petitioners/defendants, he did not produce the concerned postman, which could show that the notice was duly served upon the petitioners/defendants. By now it is well settled that the pre-emptor has not only to prove the sending of the notice but he has also to prove the service of the notice. In a case titled: Sher Ayaz Khan alias Sheraz Khana-vs-Gul Najeeb Khan, reported as 2025 SCMR 380 it was held by the Apex Court that: "...However, if we talk about the case in hand, the person (postman) who allegedly served the registered post A.D. upon the deceased petitioner Sher Ayaz Khan alias Sheraz Khan was not produced in the witness box, who otherwise was essential to have been brought in the witness box, especially when receipt of the same has been denied, so as to prove and determine the fact that he actually served the registered post A.D. upon the deceased petitioner; meaning thereby the service upon the addressee was not proved by the respondent."
Similarly, in the case titled: Muhammad Riaz-Vs-Muhammad Ramzan and others reported as 2023 SCMR 1305, the august Court has held that: "...presumption of service does arise if a notice sent through registered post with 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 said 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". Thus, it was for the petitioner to produce the postman during the evidence stage in order to establish the factum of Talb-i-Ishhad, which he failed to do."
In para No. 6 of preliminary objection of the written statement, the petitioners/defendants have specifically denied the receipt of notice talb-Ishhad, therefore, it was for the respondent/plaintiff to prove that the said notice was duly served upon the petitioner/defendants, which he failed to do.
12. It is settled that if the pre-emptor fails to perform the performance of any of the Talabs in accordance with the requirement of law then even if he has performed the remaining Talabs then the same would be immaterial. In the case titled: Sardar Muhammad (deceased) through LRs Vs Taj Muhammad (Deceased) through LRs and others reported as 2023 SCMR 1113, the Hon'ble apex Court has also held that: "...if performance of a single Talab is skipped or not proved, the superstructure and edifice of the suit for possession through pre-emption falls on the ground."
13. Law requires that the notice of Talab-i-Ishhad must be in writing and witnessed by two truthful witnesses and the jurisprudence so far developed on the subject is that the pre-emptor is bound to produce both of them in Court. In this case, as per evidence however, neither the Advocate who had scribed the notice nor the other marginal witness namely Sardar Younas was produced, therefore, the respondent/pre-emptor has not proved a valid performance of Talab-i-Ishhad, therefore, his suit has wrongly been decreed by the lower court. In case titled Muhammad Abaidullah vs. Ijaz Ahmed (2015 SCMR 394) a larger bench of Hon'ble Supreme Court has held that:- "Scribe who was examined with one attesting witness cannot be construed to be an "attesting witness" and to prove a valid Talb-i-Ishhad, two truthful attesting witnesses are required to be examined, which excludes scribe."
Similarly, in a case titled as Dawa Khan through L.Rs & others vs Muhammad Tayya b (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 the apex Court that in order to prove a document, Article 79 of the Qanun-e- Shahadat Order 1984, requires production of two attesting witnesses to testify the same in Court.
The language of section 13(3) of the Khyber Pakhtunkhwa, 1987 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 deficient as admittedly only one witness to the Talb-i-Ishhad was examined. Likewise, in a case Akbar Ali vs. Muhammad Abdullah (2007 SCMR 1233) the Hon'ble Apex Court has held that:- "Demand of Talb-i-Ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness."
Further reliance can safely be placed on the cases of Mst. Rooh Afza vs. Aurangzeb and others (2015 SCMR 92), Abdullah Khan vs. Ramzano Bibi (PLD 2013 SC 193) and Muhammad Mal Khan vs. Allah Yar Khan (2002 SCMR 235).
14. In view of the above discussion, it is concluded that suit of the respondent /defendant has been wrongly decreed by the Courts below. Accordingly, this revision petition is allowed the impugned judgments and decrees of the learned two fora below dated 24.03.2014 & 28.05.2011 are set-aside and consequently the suit of the respondent/plaintiff is dismissed.