MUHAMMAD KHIYAR, J.- Mir Sahib Khan, plaintiff-respondent herein, pre-empted the sale of the suit land by the owners in favour of Muhammad Rauf Khan, defendant-petitioner herein, by instituting a pre-emption suit in the Court of Senior Civil Judge, Bannu. The sale was affected through mutation No.22472 attested on 30-9-1987. The area sold was 3 kanals 3 marlas for an amount of Rs.12600/-.
Mir Sahib Khan, claimed superior right of pre-emption as being cosharer, contiguous owner and participator in the immunities and appendages. He claimed to have made Talb-i-Ishhad and Talb-i-Muwathebat on 20-7-1988.
2. Muhammad Rauf Khan, contested the suit, inter alia, on the ground that the plaintiff-respondent before filing the Pre-emption suit had not fulfilled the requirements of NWFP Pre-emption Act,1987 (ACT X of 1987) and that he having refused to purchase the land was estopped to bring the suit.
From the pleading of the parlies the trial court framed the following issues:-
1. Whether the plaintiff has got a cause of action?
2. Whether the suit is within time?
3. Whether the plaintiff is estopped to bring the present suit?
4. Whether the suit is incompetent in its present form?
5. Whether the plaintiff has not come to the court with clean hands?
6. Whether the plaintiff has not fulfilled the legal formalities according to the Pre-emption Act, 1987?
7. Whether the plaintiff has waived his right of pre-emption?
8. Whether the plaintiff has got superior right of pre-emption?
9. What is the market value of the suit land?
10. Whether the plaintiff is entitled to the decree as prayed for?
11. Relief?
ADDITIONAL ISSUE. Whether ostensible price of Rs.12600/- as given in the impugned mutation has been fixed in good faith and actually paid?
2. The parties produced their evidence which they wished and then in . The light of the evidence and arguments addressed, the learned trial Judge vide his judgment dated 26-3-1990 decided issues 1 and 10 in favour of the plaintiff- respondent and issues 3,4,5, and 7 against him. On issue No.6 the trial Court observed that notice dated 3-8-1988, copy Ex.P.W.2/1 witnessed by Kastoor Khan (PW.3) and Akbar Zaman (PW.4) supports the contention that the requirements of section 13 of the NWFP Pre-emption Act, 1987 were fulfilled. The superior right of pre-emption was found proved and issue No.8 was decided in plaintiff- respondents favour. The five years average was, accepted as giving the correct market price of the suit land at Rs.6775/-. Consequently vide judgment dated 26- 3-1990 plaintiffs-respondents* suit was decreed on payment of Rs.6775/-.
3. The judgment and decree of the trial court was assailed in appeal before the learned Additional District Judge Bannu who vide his judgment and decree dated 9-7-1990 concurred with the findings of the lower Court on almost all the issues and dismissed the appeal filed by the defendant-petitioner herein. He has now come in revision to this Court
4. S. Mastan Ali Zaidi, Advocate for the petitioner contested the findings of the courts below mainly on issue No.6. He argued that not only notice of Talb- e-Ishhad was not given within seven days from the date of knowledge as provided under sub-section(3) of section 13 of the NWFP Pre- emption Act, 1987 but also that notice was not sent under the registered cover acknowledgement due. Learned counsel for the petitioner was of the view that non-compliance of the provisions of section 13 of the Act extinguished the right of pre-emption of the plaintiff-respondent. About the date of knowledge from which 7 days period for notice of Talb-i-Ishhad would commence, it was argued that date of knowledge from 20-7-1988 as mentioned in the plaint is not correct. Lastly learned counsel for the petitioner submitted that his client had agreed to transfer the land in favour of plaintiff-respondent prior to the institution of the suit and to that effect mutation No.22476 was entered. Although subsequently this mutation was rejected but the fact is proved that plaintiff-respondent had the knowledge of sale prior to 20-7-1988 and so the notice of Talb-i- Ishhad was not within time.
5. Mr. Ali Gohar Khan, Advocate representing the plaintiff-respondent supported impugned judgments and decrees passed by the Courts below and argued that notice, dated 3-8-1988, witnessed by Kastoor Khan (PW.3) and Akbar Zaman (PW.4) was sent to the Pre-emptor Mir Sahib Khan within two weeks of the knowledge of sale which according to him was 20th July, 1988, the date mentioned in the plaint.
6. The crucial point involved in this revision petition is about the notice of Talb-i-Ishhad. Section 13(1) of the NWFP Pre-emption Act 1987 (Act X of 1987) provides that right of pre-emption of a person shall be extinguished unless such person makes demands of pie-emption in the manner stated therein. Section 13 of the Act is reproduced hereunder:- "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-mutwathibat:
(b) talb-i-ishad;and
(c) tilb-i-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 area 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) 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 provisions contained in sub-section (3) of section 13 show that soon after the pre-emptor has made a talb-i-muwathibat under subsection (2) but not later than two weeks from the date of notice under section 32, or knowledge whichever may be earlier, he shall make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses under registered cover, Acknowledgement confirming his intention to exercise the right of pre-emption. It will, therefore; be seen that a procedure as to how Talb-i-ishhad is required to be made is laid down in subsection
(3) of section 13 of the Act. It may be summarised thus:-
(i) Making talb-i-ishhad by sending a notice;
(ii) Notice to be sent within two weeks from the date of knowledge or notice under section 32 whichever ever may be earlier.
(iii) Notice shall be in writing;
(iv) It shall be attested by two truthful witnesses; and
(v) Notice of talb-i-ishhad shall be given under registered cover Acknowledgement due to the vendee.
7. Now let us see as to whether in the instant case procedure laid down for making Talb-i-ishhad has in fact been adopted or not. Learned counsel for the plaintiff-respondent argued that notice dated 3-8-1988 attested by two witnesses namely Kastoor Khan and Akbar Zaman was sent by post within 7 days from the date of knowledge. The argument does not find support from the record. The plaintiff-respondent has neither produced any acknowledgment due receipt nor postal receipt in evidence to show that he made Talb-i-ishhad by sending notices to the vendee. Again this fact is not proved that notice of Talb-i-ishhad was sent within two weeks from the date of knowledge or notice under section 32 of the Act, whichever w$a earlier. The date of notice under section 32 is not known while the date of knowledge of sale as mentioned in the plaint is 20-7-1988.
This is not a correct date, for , there is a mutation No.22476 copy Ex:DW.1/1 on the record admittedly entered on 19-6-1988 whereby the defendant-petitioner had agreed to transfer the suit land to the plaintiff-respondent but the same was later on cancelled. This fact is admitted by the plaintiff- respondent in his statement in court. This piece of evidence has not been considered by the Lower Courts which falsifies the assertion of the plaintiff-respondent that he came to know of the sale on the date mentioned in the plaint. He had the knowledge of sale as mutation No.22476 was entered* on 19-6-1988. The notice of Talb-i-ishhad dated 3-8-1988, albeit not proved to have been sent to the defendant-petitioner yet it was later than two weeks from the date of knowledge of sale. The mere deposition of two witnesses were not fulfilling the requirements of law. Here I would like to point out that under section 32 of the Act, the Registrar registering the sale deed and the revenue officer attesting the mutation of a sale are bound to give public notice in respect of such registration or attestation within two weeks of registration or attestation as the case may be Section 32 reads as follows: - "32. Notice.-(l) The Registrar registering the sale-deed , or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.
(2) The notice under subsection (1) shall be deemed sufficiently given if it be stuck up on the main entrance of a mosque and on any other public place of the village, city or place where the property is situated; Provided that if the property is situated in a city, the notice shall also be given through a newspaper having large circulation in such city.
(3) The charges for the notice under subsection (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration or attestation of mutation.''
The aforesaid notice is necessary because under section 13 (3) of the Act, two weeks period for making Talb-i-ishhad- would commence from date of notice under section 32 on from date of knowledge whichever is earlier. The revenue authorities are required to be informed of this provision of law. Learned counsel for the defendant-respondent confronted with the situation as in hand, argued that since the witnesses were not cross-examined about the manner of notice, it would be presumed that the same was sent by a registered post. The argument is devoid of force, for, a heavy onus lay on the defendant-respondent to have proved that the notice was sent under registered cover acknowledge due. The presumption is not recognized by the Act. Lastly it was contended by the learned counsel for the plaintiff-respondent that the proviso to subsection (3) of section 13 of the Act should help his client because the proof of sending notice of talb-i-ishhad under registered cover acknowledge due is not required in the area where postal facilities are not available. True to that extent benefit could be given to the defendant-respondent if he had claimed the said benefit. He had all along been asserting to have Complied with the requirements of subsection (3) of section 13 of the Act and nowhere claimed that the area where from he is hailing Jacks postal facilities.
8. The conclusion arrived at by the lower courts that plaintiff-respondent had fulfilled the legal requirements of the Act is not correct. The Courts in arriving at the conclusion have committed error of law calling for interference by this court under Section 115 C.P.C.
9. In the result the impugned judgments and decrees of the courts below are set aside and on acceptance of this revision petition, the suit of the plaintiff- respondent is dismissed with no order as to costs. One copy each of this judgment be sent to the Revenue Board, N.W.F.P. Peshawar and to the Commissioner.D.I.Khan Division with reference to the observation made above in para 7.