1. ' WALI MUHAMMAD KHAN, J.---Through the instant petition, Mir Sahib Khan petitioner has called in question the judgment, dated 1-6-1991 passed by the Peshawar High Court Whereby on the acceptance of revision petition filed by Muhammad Rauf Khan. Defendant/respondent, the judgment of the Court as well as of the appellate Court decreeing the suit of the plaintiff/petitioner were set aside and the suit of the plaintiff/petitioner was dismissed.
2. ' The facts of the case, briefly stated, are that Mir Sahib Khan plaintiff/petitioner herein, instituted a suit for possession through pre-emption of land measuring 3 Kanals 3 Marlas described in the heading of the plaint against Muhammad Rauf Khan defendant/respondent on the ground of co sharership, participation in the immunities and appendages such as right of way and right to discharge water, and ownership of contiguous property. It was specifically averred in the plaint that the plaintiff made Talb-i-Mawathibat and issuecl a registered notice- acknowledgment due on 3-8-1988 to fulfil the requirement of Talb-i-Ishhad. The defendant/respondent contested the suit and besides raising other legal and factual objections controverted the allegation of the plaintiff regarding fulfilment of Talb-i-Mawathibat and Talbi-Ishhad. In reply to para. 2 he disclosed that when the mutation was attested in his favour he entered a mutation of transfer in favour of the plaintiff but he was not willing, to take it and, in consequence, the mutation was rejected and that the plaintiff/petitioner was estopped of instituting the suit. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned Civil Judge, vide his judgment and decree dated 26-3-1990, decreed the suit of the plaintiff/petitioner on payment of Rs,6,775. The appeal filed against it by the defendant/respondent was dismissed vide judgment and decree dated 9-7-1990 but his revision petition succeeded through the impugned order.
3. ' We have heard Mr. Masood Kausar, Advdcate for the Petitioner and have perused the record of the case.
4. ' The only ground which prevailed with the learned Single Judge of the Peshawar High Court for upsetting the concurrent finding of facts of two Courts below was that the mandatory provision of section 13 of the N.-W.F.P. Pre-emption Act, 1987 had not been complied with, prior to the institution of the suit, resulting in the extinguishment of the right of pre-emption of the plaintiff/petitioner.
5. According to the averment of the plaint, the plaintiff/petitioner got the knowledge of the sale transaction in question on 20-7-1988 and on that very day he made Talb-i-Mawathibat. Under section 13, subsection (3) a pre-emptor after making Talb-i-Mawathibat as required under subsection (2), shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32 of the Act ibid, or knowledge whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise"the right of pre-emption, Under subsection (4) when a pre-emptor has satisfied the requirements of the Talb-i-Mawathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption. The plain reading of the aforequoted provisions of pre-emption law make it amply clear 'that no sooner the pre-emptor gets knowledge of the sale transaction, he is to declare his intention to pre-empt the same and as soon thereafter as possible has to send a registered cover notice, acknowledgment due, in writing, attested by two. Truthful witnesses, to the vendee. This is to create evidence of the intention of the pre-emptor to file a suit for pre-emption. The ingredients of subsection (3) are; one, that the notice must be sent as soon as possible after Talb-i-Mawathibat but not later than two weeks; two, that the notice must be sent in writing; three, it must be attested by two truthful witnesses; and four, it must be sent under registered cover acknowledgment due. There is a proviso in subsection (3) that the Talb-i-Ishhad can be oral in presence of two truthful witnesses if no facility of post office is available to the pre-emptor.
6. ' If the provision of subsection (3) is strictly interpreted, the pre-emptor has to give the notice of Talb-i-Ishhad as soon as possible without wasting a single moment much less waiting for the last day of two weeks. In the case in hand, the 'plaintiff/petitioner failed to produce postal receipt or the acknolwedgment due receipt or the employee of the postal department in proof of his allegation that the required notice was sent on 3-8-1988 as alleged by him, under registered cover acknowledgment due. The burden of proving Talb-i-Ishhad was obviously on the plaintiff/petitioner and he having failed to discharge the onus placed upon him, the learned trial Court as well as the appellate Court could not presume that the requirement of section 13, subsection (3) had been complied with.
7. ' As regards the knowledge' of the plaintiff/petitioner regarding the sale transaction in question, the defendant/vendee asserted that after the attestation of mutation in his favour the plaintiff/petitioner approached him for the transfer of the suit land in his favour to which he agreed and entered a Mutation No,22476 copy Ex. DW-1/1 on the file on 19-6-1988 in his favour. This assertion of the defendant/respondent was admitted by the plaintiff/petitioner in his statement in Court. Obviously if he had the knowledge of entry of Mutation No,22476 in his name on 19-6-1988 he had the knowledge of the sale mutation in favour of the vendee/respondent on any date prior to 19-6-1988. His contention that he got the knowledge of the sale transaction on 20-7-1988 is a misstatement and rightly ignored by the learned High Court and as a necessary corollary thereto his averments in the plaint regarding the essential requirement of Talb-i-Nawathibat and Talb-i- Ishhad did not represent true state of affairs and were made simply to save himself from the rigour of the provision of section 13.
8. For the reasons stated above, the learned Single Judge of the High' Court on the proper appraisal of the evidence available in the case and the correct interpretation of the law of pre-emption based on Islamic principles, and finding that the judgments of the trial Court as well as of the appellate Court were not only illegal but based on misreading and non-reading of evidence, rightly set them at naught and held that the right of pre-emption of the plaintiff had been extinguished for non-observance of Talbs, dismissed the suit of the plaintiff/petitioner through the impugned order.
9. ' The instant petition is, accordingly, dismissed and leave to appeal is refused.