The facts of the present case, as disclosed in the plaint, are that the suit property, fully detailed in the heading of the plaint, was owned by Mir Abbas and Habib Khan etc. The same was purchased by the respondents-defendants for a sum of Rs.50,000. Accordingly Mutation No.9593 was attested on 17-4-1990.
2. The petitioner-plaintiff pre-empted the transaction in question and alleged in his plaint, which starts the present litigation between the parties, that the land in question was in fact sold for a sum of Rs.15,400 and that inflated amount of Rs.50,000 was entered in the impugned sale mutation so as to deter him from pre-empting the sale transaction in question.
3. In para. No.3 of the plaint it has been specifically alleged:--
4. In other words, the petitioner-plaintiff did not mention the specific date on which he had made "Talb-i-Muwathibat" (immediate demand by pre-emptor) under section 13 of the N.-W.F.P. Pre- emption Act, 1987 (Act X of 1987).
5. The petitioner-plaintiff further alleged in his plaint that since he had a superior pre-emptive right, therefore, a decree for the possession of the disputed land, through pre-emption be granted to him on payment of Rs.15,400.
6. The suit was contested by the respondent-defendant. Quite a few legal as well as factual objections were raised in the written statement. It was categorically alleged that the provisions, as laid down in section 13 of the Pre---emption Act, were not complied with, inasmuch as the "Talb-i- Muwathibat" was not made within the prescribed time and consequently the ' Talb-i-Ishhad' would also be deemed to have been made beyond the prescribed period of limitation. The respondent- defendant further alleged that the suit of the petitioner-plaintiff was thus barred by time, and therefore, liable to be dismissed with costs. It was further contended that the sale consideration. Of Rs.50,000 was not only fixed in good faith but was actually paid.
7. The pleadings of the parties gave rise to as many as 9 issues which are to the following effect:-
(1) Whether the plaintiff is estopped to sue?
(2) Whether the plaintiff has fulfilled the requirement of section 13 of Pre---emption Act, 1987?
(3) Whether the suit is hit by principle of partial pre-emption?
(4) Whether the suit is within time?
(5) Whether the plaintiff has got a superior right of pre-emption?
(6) Whether the sale consideration was fixed in good faith and actually paid?
(7) What is the market value? ,
(8) Whether the plaintiff is entitled to the decree as prayed for?
(9) Relief.
8. The petitioner-plaintiff, in order to prove his case, appeared as his own witness (P.W.2) and produced the following witnesses:-- (1)Khalid Ali Patwari Halqa Mastikhel (P.W.1).
(2)Jumma Khan s/o Mir Abbas Khan (P.W.3).
(3)Muhammad Jan s/o Rehmatullah (P.W.4).
(4)Rehmatullah Jan s/o Najibullah Khan (P.W.5).
9. On the other hand, the respondent-defendant appeared as D.W.1 and produced Mir Abbas Khan as D.W.2 and closed his evidence.
10. Mr. Tariq Parwaiz Baloch, Civil Judge Lakki, after going through the record of the case and hearing the learned counsel for the parties, by his judgment dated 29-4-1993 granted a decree for the possession of the suit land through pre-emption on payment of Rs.876.40 per Kanal, to the petitioner-- plaintiff. '
11. Aggrieved by the said judgment/decree of the Civil Judge, the respondent-defendant filed an appeal in the Court of Additional District Judge, Lakki. The Additional District Judge, Lakki (Mr. Fayazullah Khan), by his judgment dated 5-5-1994 accepted the appeal, set aside the judgment/decree of the trial Court and dismissed the suit of the petitioner-plaintiff with no orders as to the costs.
12. The petitioner-plaintiff dissatisfied with the judgment/decree of the learned Additional District Judge has challenged its vires before this Court for the redress of his grievance by filing this revision petition under section 115, C.P.C.
13. Mr. Dost Muhammad Khan, Advocate learned counsel for the petitioner and Mr. Muhammad Farid Khan, Advocate learned counsel for the respondent present and heard at length. I have also gone through the record of the case with some degree of care.
14. At the outset, it must be stated, that in the revisional jurisdiction the High Court would only interfere with the judgment/decree of the lower Court if such subordinate Court appears to--- (a)have exercised a jurisdiction not vested in it, or (b)have failed to exercise a jurisdiction so vested; or (c)have acted in the exercise of its jurisdiction illegally or with material irregularity.
15. In this case the main point which needs to be determined by this Court is as to whether or not the provisions of section 13 of the N.-W.F.P. Pre---emption Act, 1987 were complied with, that is to say that whether the petitioner --plaintiff after hearing of the sale had made a "jumping demand" and had expressed his intention to pre-empt the transaction by claiming his right immediately/instantly in the same sitting (Majlis).
16. The petitioner-plaintiff while appearing as P.W.2, in the trial Court, stated that it was in the month of ' Jaith' that he was sitting in the company of Muhammad Jan (P.W. 4) and Rehmatullah Jan (P.W.
5) when one Jumma Khan Patwari (P.W.3) informed him about the sale transaction. He further stated on oath that he at one made "Talb-i-Muwathibat" and also declared his intention to pre- empt the transaction in question in the presence of Jumma Khan Patwari (P.W.3), Muhammad Jan (P.W.4) and Rehmatullah Jan (P.W.5)., He further stated that on the very next day he alongwith Muhammad Jan (P.W.4) and Rehmatullah Jan (P.W.5) went to the defendant's house and asked him to accept the actual price of the suit land and transfer the same to him but he refused to do so. He further stated that resultantly, on the next day, he along with Muhammad Jan (P.W.4) and Rehmatullah Jan (P.W.5) went to Lakki and got the notice (Exh. P. W.2/2) scribed by the petitioner- writer which was duly thumb --impressed by him as well as by the marginal witness i.e., P.W.4 and P.W.5 respectively. That the same was then sent to the defendant-respondent through registered post acknowledgment due.
17. Jumma Khan P.W.3 who had allegedly informed the petitioner-plaintiff about the transaction in question, was examined on oath. While in the witness --box he stated that it was he who had informed the petitioner-plaintiff about the sale transaction at his village, that at that time Muhammad Jan (P.W.4) and Rehmatullah Jan (P.W.5) were also present and were sitting with the petitioner-- plaintiff. He further stated that the petitioner-plaintiff on receiving the said information had immediately declared his intention to pre-empt the suit transaction and had also stated that he would approach the defendant-respondent, sin the first instance, and to request him to transfer the land in his favour in recognition of his superior pre-emptive right and that if he refused to accede to his request then he (petitioner-plaintiff) would file suit for pre-emption against him.
18. In cross-examination this witness admitted that he was not in a position to name the Patwari Halqa who had informed him about the transaction in question. He, however, refuted the suggestion that he had come to know about the said transaction when the statement of the vendor was recorded at Takhmil Garh Lakki and that it was on that day he had passed on the said information, regarding the sale, to the petitioner-plaintiff. He further stated that he did not remember as to when and on what date he had informed the petitioner-plaintiff about the said transaction. According to him he also did not know in whose 'Baithak' Rehmatullah Jan (P.W.5) was sitting at the time when he passed on the said information to the petitioner-plaintiff. He further admitted that he could not say as to where Muhammad Jan (P.W.4) was at that time.
19. Muhammad Jan and Rehmatullah Jan, in whose presence the information regarding the sale of the land in suit was passed on by Jumma Khan (P.W.3) to the petitioner-plaintiff and the petitioner-plaintiff had made "Talb-i---Muwathibat" (jumping demand) were also examined as P.W.4 and P.W.5 respectively.
20. Muhammad Jan (P.W.4) it is interesting to note, gave an altogether different version of the incident. According to him it was the petitioner-plaintiff who had informed him (P.W.4) that he (petitioner-plaintiff) had been informed by Jumma Khan (P.W.3) about the suit transaction and that he (petitioner--plaintiff) would pre-empt the said transaction. According to him when Akbar Khan (petitioner-plaintiff) came to visit him he was sitting along with his son, Imam Shah in his Baithak. This witness has clearly contradicted Jumma Khan (P.W.3) who stated that he had informed the (petitioner-plaintiff) in the presence of Muhammad Jan fP.W.4) and Rehmatullah Jan (P.W.5). In other words, P.W.4 has excluded the presence of Jumma Khan (P.W.3) altogether when the Jumping demand was made by the petitioner-plaintiff. Thereafter, Rehmatullah Jan was examined as P.W.5. He too gave an absolutely different version of the incident. He stated that at "Degar Vela" he was sitting, alongwith Akbar Khan (petitioner-plaintiff) and Muhammad Jan (P.W.4) when Jumma Khan (P.W.3) informed the petitioner-plaintiff about the suit transaction. He, in the next breath, demolished the petitioner-plaintiff's case in toto, by stating on oath, that on receiving the said information about the transaction in question, the petitioner-plaintiff did not say anything and kept silent. In other words, this P.W. Has contradicted the stand taken by the petitioner-plaintiff that the "jumping demand" was made in his (P.W.5) presence.
21. In the light of the evidence discussed above it has become crystal clear that the petitioner- plaintiff has miserably failed to established the fact that he had made "Talb-i-Muwathibat"
(jumping demand), immediately/instantly, on I learning about the suit transaction, as required under section 13(2) of the Pre---emption Act. Instead from the evidence available on the record it has been fully established that the (petitioner-plaintiff) has failed to make the requisite "Talb-i--- Muwathibat" after having acquired the knowledge in respect of the sale, pre---empted by him.
22. Once it is held that "Talb-i-Muwathibat" (jumping demand) was not made by the pre-emptor immediately after acquiring the knowledge of the transaction in the same sitting/meeting/Majlis in which he came to know about the sale transaction, then the right of pre-emption, in the circumstances, stood extinguished and the pre-emptor (petitioner-plaintiff) would not be entitled to succeed in getting a decree for the possession of the land through pre-emption. To the same effect is the finding of the lower Appellate Court which has discussed/evaluated the evidence properly. It has committed no error in appreciating the material placed on record.
23. Beside this I have also not been able to find any infirmity, legal or otherwise, in the impugned judgment/decree of the lower Appellate Court and as such I am not inclined to interfere with its finding in revisional jurisdiction.
24. This revision petition is without any substance and is accordingly dismissed with costs.