' Revisional jurisdiction of this Court is invoked to examine the propriety of the order of the learned District Judge Karak dated 26-2-1990, whereby on acceptance of the appeal preferred by the plaintiff-respondent herein, the learned Appellate Court set aside the order of dismissal of the suit and remanded the case back to the learned Senior Civil Judge, Karak to decide the suit in accordance with law.
1. Muhammad Aslam Khan plaintiff-respondent herein instituted a suit for possession of land in exercise of his right of pre-emption under the N.-W.F.P. Pre-emption Act No.10 of 1987. The suit was contested by the present-petitioners but without framing any issues or recording any evidence the learned Senior Civil Judge dismissed the same on the ground of absence of any proof of making Talb-i-Muwathibar.
2. I have heard Mr. Abdul Bari Khan, Advocate learned counsel for the petitioner and Haji M. Zahir Shah, Advocate learned counsel for the respondent at length with considerable degree of care.
3. It is contended on behalf of the petitioner that the order of the learned trial Court whereby the suit of the plaintiff-respondent herein was dismissed was founded on valid legal grounds inasmuch as from the pleadings of the parties the failure of making Talb-i-Muwathibar was too obvious to be ignored and such being the case the suit of the respondent could not be entertained.
Elaborating his arguments, the learned counsel for the petitioner submitted that while making `Talb-i-Ishhad', a reference to `Talb-i-Muwathibar is essential and failure of the same is fatal to the cause of a pre-emptor. He further contended that since no further evidence can be led to prove the making of `Talb-i-Muwathibar by the respondent, the order of remanding the case was a futile exercise and as such cannot be sustained.
4. As against, this the learned counsel for the respondent maintained that under section 13 of the N.-W.F.P. Pre-emption Act, 1987 there is no such condition attached' to `Talb-i-Ishhad', which indicates that while making the same, a reference to `Talb-i-Muwathibar is a neceassary requirement of law. In this regard he referred to subsections (1) and (3) of section 13 of the Act and stressed that no such intention, as is claimed by the petitioner, is manifesting therefrom. He, therefore, urged that the only means to prove `Talb-i-Muwathibat' is by way of leading evidence in this behalf before the trial Court and the learned Appellate Court proceeded in right direction to remand the case back to the learned trial Court as such the impugned judgment of the learned District Judge Karak cannot be interfered with.
5. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
6. In the context of the submissions made by the learned counsel, the controversy is narrowed down to the question that while making `Talb-i-Ishhad whether a reference to `Talb-i-Muwathibar is essential necessity under the law relevant thereto and additionally if so whether the absence thereof shall be fatal to a suit instituted in exercise of the right of pre-emption.
7. A reference to section 13 of the Act is, therefore, needs to be made which reads as under:--
13. Demand of Pre-emption (1) 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. Explanations.
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. II. "Talb-i-Ishhad" means demand by establishing evidence. 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-Muwathibat.
(3) Where a pre-emptor has made Talb-e-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.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) of Talb-i-Ishhad under subsection (3), he shall make Talb-e-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.
8. A plain reading of the aforequoted provisions of law, more particularly subsection (1) thereof would indicate that (a) the requirements of making `Talb-i-Ishhad' are that the pre-emptor shall make the same as soon after making the `Talb-i-Muwathibat' as possible but not later than two weeks from the date of notice issued by the Registrar registering the sale-deed or, as the case might be, the Revenue Officer attesting the mutation of sale under section 32 of the Act or its knowledge whichever is earlier; and (b) by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee, presumably in token of confirming his intention to exercise the right of pre-emption and a was thereafter that he can resort to making `Talb-iKhusumat' to enforce the same. It will, therefore, follow that there was hardly anything in law, indicative of the necessity of a reference to be made to `Talb-iMuwathibar while making `Talb-i-Ishhad'. The contention of the learned counsel for the petitioner as such has no force.
9. I am accordingly clear in my mind that a prospective pre-emptor may refer to the making of `Talb-i-Muwathibar in the notice of `Talb-i-Ishhad', if he so desires, but neither is he bound, nor subsection (3) of section 13 of the Act, requires of him to do so and I have no hesitation in holding accordingly.
10. In this context of the matter while I maintain the impugned judgment of the learned Addl: District Judge, I find this revision petition .Bereft of any merit and dismiss the same with costs throughout.
11. Parties are directed to appear before the learned Senior Civil Judge Karak on 16-2-1991. Record of the case, therefore, shall be returned so as to reach the learned trial Court before the said date.