Ali Haider, petitioner/plaintiff, brought a suit against Amir Sher Bahadur, respondent/defendant, for possession through pre-emption of land measuring 1 Kanal, 15 Marlas and six Sersais, on the basis of superior right of pre-emption for a sum of Rs.2,000, or any amount determined by the Court.
2. The petitioner in his plaint stated that the suit property originally belonged to Sher Dar Ali which was purchased by the respondent/defendant as a result of compromise in the Court of Senior Civil Judge,-Bannu, in Suit No.212/1, decided on 10-7-1994 by way of a consent, decree. He claimed his superior rights of pre-emption on the basis of co-shareship. Contiguity and participator in immunities and appendages. He further claimed that he had complied with all the pre-requisites of Talb-e-Muwathibat and Talb-e-Ishhad a.q required under section 13 of the N--W.F.F. Pre- emption Act, 1987.
3. The suit was contested by the defendant/respondent by filing his written statement wherein he raised various legal and factual objections. The pleadings of the parties gave rise to the framing of the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2)Whether plaintiff has made Talbs in accordance with law?
(3)Whether suit property was ownership of defendant, and is not purchased?
(4)Whether plaintiff has got superior right of pre-emption?
(5)Whether defendant has purchased suit property for consideration of Rs.2,000?
(6) What is market value of suit land?
(7)Whether in case suit is dismissed, defendant is entitled for special compensation under section 35-A, C.P.C., if so. Upto what amount?
(8)Whether plaintiff is entitled to the decree of possession through pre-- emption as prayed for?
(9)Relief?
4. Both the parties adduced their evidence as they wished and the trial was concluded which resulted in dismissal of suit of the petitioner, which was challenged by way of an appeal before the Additional District Judge, Bannu, who vide his judgment and decree, dated 16-9-1998 dismissed the appeal. Hence the instant revision petition.
5. Learned counsel for the petitioner assailed the findings of the learned two Courts below and has stated that the impugned judgments and decrees suffer from misreading/non-reading of evidence and proceed on mis-conception of the relevant law on the point of Talb-e-Muwathibat and Talb-e-Ishhad. He maintained that the petitioner has made the required demands of Talb-e-- Muwathibat and Talb-e-Ishhad strictly in accordance with the words and spirit of law and has fully proved his claim regarding his superior right of pre-emption and, as such, the dismissal of the suit by the lower Courts is unwarranted and calls for interference in the revisional jurisdiction of this Court. In support of his contentions, reliance was placed on the cases reported as 1999 SCM R 717 and 1998 SCM R 2102. He next argued that the respondent had left no property as his share in the disputed Khasra number and, as such, the findings of the learned lower Courts on issue No.4 are wrong, wherein it has been held that both the plaintiff and defendant are co-sharers in the suit property and had equal rights of pre-emption. He contended that since respondent had exhausted his entire share, therefore, he had no equal rights of pre-emption qua the suit land.
6. On the other hand, learned counsel for the respondent forcefully defended the judgments and decrees of the two Courts below and stated that the concurrent findings of both the Courts below on the vital issues governing the fate of the instant case are correct and are based on the legal evidence, which do not suffer from any legal infirmity so as to bring the case under the scope of revisional jurisdiction under section 115 of C.P.C. No jurisdictional error of the 'nature of misreading/non-reading of evidence or misreading of any document could be pointed out by the learned counsel for the petitioner and, as such, there is no justification for up-setting the well- reasoned judgments of the two Courts below. He contended that the petitioner has miserably failed to establish his case with regard to the mandatory requirements of making Talbs under section 13 of the N.-W.F.P. Pre-emption Act, 1987. He stated that the petitioner has failed to make Talb-e-Muwathibat and Talb-e-Ishhad as per requirements of law. He has referred to the notice of Talb-e-Isshad and pointed out that the said notice is tainted with the legal infirmities, inasmuch as it does not contain the names of the witnesses in whose presence he had made Talb-e- Muwathibat when for the first time he came to know about the sale of the property. It also does not mention the relevant time of making Talb-e-Muwathibat. Moreover, the original copy of Talb-e- Isshad was retained by the petitioner and only a photostat copy was sent to the respondent. He further, stated that the plaintiff was not even consistent with regard to the name of the person who gave him the first hand information. On this point, the learned counsel for the respondent referred me to the statement of the petitioner which was recorded as P.W.4, wherein he stated that on 2-10- 1994, the respondent and Sher Bahadur were standing near the disputed land and one Sharifullah P.W. Was also standing near them, whereas P.W. Mir Qadir was busy in cutting grass nearby when he reached near them and found that P.W. Sharifullah and Amir Sher Bahadur were laughing and that he asked the purpose of their laughing, on which Sharifullah told him that the respondent had purchased the suit land from Sher Dar Ali and on hearing this he expressed his mind by way of Talb-e-Muwathibat to pre-empt the suit land as being a co-sharer etc. And after such Talb-e- Muwathibat he on the same day, i.e. 2-10-1994 went to the P.W. And prepared the notice of Talab- e-Isshad.
The notice was, however, retained by him for two days and was issued to the respondent on 4-10- 1994.
7. In the cross-examination, the petitioner said "on 2-10-1994 I was communicated by the defendant about the transference of the suit property. I was present on the disputed Khasra number when I was told". This part of the statement is in direct conflict with his examination-in-- chief where the petitioner claimed that it was Sharifullah who told him about the sale of land.
8,. I have considered the arguments of both the parties and since the factum of Talb-e- Muwathibat and Talb-e-Ishhad has a very far reaching effect on the fate of this case, therefore, I would like to analyse this important question in the light of evidence of the parties. It is settled proposition of law that the Talbs required by section 13 being the sine qua non for the exercise of right of pre--emption are to be established beyond any doubt strictly in consonance with the requirement of law and failure to do so would definitely entail the consequence of failure of the suit.
In the instant case, a bare reading of the notice shows that the petitioner received the information on 2-10-1994 in his village. The exact words used by him in the notice are as follows:-- However, in his statement he stated that he received the information when he was present on the suit land. These two versions are irreconcilable, as the village and the suit land are two different places and, as such, it remains a question, as to where did he actually received the first information regarding the sale and if there is no clarity of version, it cannot be established as to where did he made the Talb-e-Muwathibat, whether in the village or in the fields. Moreover, the petitioner is materially discardant on the point of the person who gave him the information, as on the one hand he says that he was informed by Sharifullah, whereas in the same statement he stated that he was informed by the respondent himself. Again these two versions are irreconcilable, and, as such, it could not be established with certainty that the petitioner made Talb-e-Miiwathibat on his first information. The inconsistency in the statement of the petitioner with regard to the information is the premises on which he had to establish the conclusion. i.e. Making of Talb-e-Muwathibat. This being the position, it is clear that the petitioner has failed to make Talb-e-Muwathibat in accordance with law. Moreover, the petitioner was so quick that on receiving of information on 2- 10-1994, he managed the preparation of notice of Talb-e-Ishhad after receiving certain information from the Mohafizkhana with regard to the facts of Suit No.212 and the attesting witnesses were hastily summoned to appear before the petition writer, but is not understandable as to why did he retain the notice for further two days and was posted on 4-10-1994. Again, the original of the notice was retained by the petitioner, whereas a copy of it was sent to the respondent.
9. Reading of the plaint shows that the petitioner has not mentioned the names of the persons before whom he made the first Talb, i.e. Talb-e--Muwathibat. He also failed to mention the names of the witnesses of Talab-e--Isshad, which should have been mentioned by him in the plaint, as according to certain case-law, the non-mentioning of the witnesses has an adverse effect upon the legality of the notice of Talb-e-Isshad. On this important point, I find support from the case reported .In PLD 1998 SC p.121, 1996 SCM R 813 and PLD 1990 Peghp.181. ld. In view of the case-law referred above and the discussion of the relevant evidence, I am clear in my mind that the petitioner has not been able to establish C the imperative requirements of Talb- e-Muwathibat and Talb-e-Isshad, which in its legal consequences, entails the dismissal of his suit.
11. The findings of both the lower Courts on this important issue are based on the correct appreciation of evidence and true application of relevant law, which are sound and not open to any exception. Moreover, the matter before me is in the limited scope of section, 115, C.P.C. The factum of making of Talb-e--Muwathibat is primarily the question of fact and in this regard the concurrent p findings arrived at by both the Courts below cannot be interfered with by this Court in exercise of its revisional jurisdiction. There is no jurisdictional error within the meanings of section 115, C.P.C. So as to warrant any interference in the exercise of revisional powers. Reliance is placed on PLD 1990 Pesh. 181.
12. In view of my above discussion and reference to the relevant record, the plaintiff/petitioner could not produce evidence in support of his making the Talb-e-Muwathibat of a standard and quality so as to raise the requisite belief in E the minds of both the lower Courts that the pre- emptor had duly discharged the onus.
13. The second point of the counsel for the petitioner is that there is no evidence to establish that the respondent being also a co-sharer in the suit Khata has equal right of pre-emption. In this respect, it is sufficient to refer to the statement of Patwari, who appeared as P.W.4 and produced copy of Fard Jamabandi for the year 1992-93 as Exh.P.W.4/1, who has clearly stated that both the plaintiff and defendant are co-sharers in the suit property. Therefore, the findings of the lower Courts on this issue are correct and based on correct evidence and, as such, the contention of the petitioner's counsel has no force.
14 In view of the above discussion, it is held that the judgments and decrees of both-the Courts below being concurrent on the material issues are correct and there is no ground to interfere with the concurrent findings of the G Courts below . The revision petition has no merit and is resultantly dismissed.