' Muhammad Daud, respondent/plaintiff filed a suit (No,268/1 of 1990) for possession through pre- emption of land fully described in the heading of plaint situated at Mauza Teer District Haripur on the grounds of superior rights of pre-emption such as contiguity and easement. The land in dispute was sold vide sale-deed No,1779, dated 11-11-1989. Mutation No,7432 was attested on the basis of said sale-deed on 14-2-1990 by the Revenue Officer. Respondent/plaintiff question the sale consideration mentioned in the sale-deed to be fictitious and having entered in order to ward off his pre-emption rights. He alleged that the suit land was in fact purchased for Rs,20,000 but inflated amount was entered in the sale-deed. The suit of the respondent/plaintiff was contested by the petitioner/defendant by filing his written statement. The divergent pleadings of the parties gave rise to the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is estopped to sue?
(3) Whether the plaintiff has fulfilled the requirements of section 13 of N.-W.F.P. Pre-emption Act, 1987?
(4) Whether the plaintiff has waived off his right of pre-emption by permitting the defendant to purchase the suit land?
(5) Whether the plaintiff has got a right of pre-emption?
(6) Whether a sum of Rs,4,51,125 has been fixed in good faith and actually paid as the sale consideration of.Suit land?
(7) What is the market value of the suit land?
(8) Whether the plaintiff is entitled to decree as prayed for?
(9) Relief.
2. The learned Senior Civil Judge after recording the evidence of the parties and hearing the arguments of the learned counsel for the parties, decreed the suit on 17-1-1994 in favour of pre- emptor/respondent/plaintiff. Being aggrieved by the judgment/decree passed by the learned Senior Civil Judge, Haripur the petitioner/defendant filed Appeal No,12/13 of 1994 in the Court of learned District Judge, Haripur. The appeal was also dismissed by the learned District Judge, Haripur vide his order dated 13-12-1994. The petitioner has impugned the judgments and decrees passed by Courts below through Revisions Petition (No,20/95) in hand.
3. Syed Abdul Salam Sarwar, Advocate, the learned counsel representing the petitioner argued that formalities of 'Talabs' have not been fulfilled by the respondent/plaintiff. Neither the names of the persons before whom 'talb-i-Ishhad' was made mentioned in the plaint nor the date, time and place was given. The witnesses of 'Talb-i-Ishhad' have also not been produced by the respondent/plaintiff but both the Courts below by misreading the evidence produced by the respondent/plaintiff held that the formalities of 'Talabs' were fulfilled by the respondent.
4. He further argued that Khasra No,366 is not contiguous with the suit property. Only Khasra Nos.
365 and 367 are contiguous with Khasra No,365 owned by plaintiff but both the Courts below misread the record of the case regarding this fact. The respondent/plaintiff was not entitled for decree on the basis of contiguity.
5. He also argued that specific sale amount alongwith registration charges against which the petitioner purchased the property in dispute has been brought on record but the learned District Judge did not appreciate the record of the case properly and erroneously held that the petitioner was not entitled for the registration charges and District Council Fee.
6. While repelling the arguments of the learned counsel for the petitioner, Mr. Sal& Mehmood Awan, Advocate, the learned counsel representing the respondent argued that it was not necessary to give names of the witnesses, place and time where 'Tabl-i-Muwathibat' was made, therefore, the respondent/plaintiff cannot be non-suited on the said ground. The respondent/plaintiff has fully proved before the trial Court that formalities of 'Talabs' were fulfilled and judicial conscious of the trial Court was fully satisfied that 'Talabs' were in accordance with law by the respondent/plaintiff.
The concurrent findings of fact regarding Talabs' based on evidence which were neither illegal nor irregular nor without jurisdiction could not be interfered with in revision. Reliance was placed on Kala Khan v. Ayub Khan 1992 M LD 2536.
7. Regarding contiguity, the learned counsel argued that Khasra Nos.365 and 367 are contiguous with Khasra No,-364 which is owned by respondent/plaintiff. The property in dispute is situated in a compact block. Khasra No,366 is adjacent to Khasra Nos.365 and 367 as is clear from AksShajra- Kishtwar Exh.P.W.2/3. The respondent/plaintiff has successfully proved the contiguity. The learned trial Court rightly appreciated the evidence on record and granted decree which was concurred by the learned District Judge, Haripur.
8. Repelling the arguments of the learned counsel for the petitioner that the petitioner was entitled to charges of registration of District Council Fee and non-framing of issue regarding the payment of said charges by the trial Court has prejudiced the case of the petitioner, the learned counsel for the respondent argued that the learned District Judge has properly discussed in his judgment as to whether the plaintiff/respondent was entitled to receive the amount of registration charges and District Council Fee, therefore, the petitioner has not been prejudiced at all. He further stated that the petitioner failed to prove on record as to what amount was paid by him towards registration charges and District Council Fee. The petitioner, therefore, could not claim expenses incurred by him on registration, stamp duty and District Council Fee.
9. I have heard the learned counsel for the parties and perused the record of the case carefully.
10. So far as the first argument of the learned counsel for the petitioner that time, place and date for 'Talb-i-Muwathibat' and the names of the witnesses before whom the said 'Talab' was made were not mentioned in the plaint, therefore, the suit of the plaintiff was liable for dismissal. This argument has no force. As per Order 6, Rules 2 and 3, C.P.C. Every pleadings should contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be but not the evidence by which they are to be proved. It is essential that in the pleadings the plaintiff should state those facts which will put the defendants on his guard and tell him what he will have to meet when the case comes on trial. The question as to whether it was sine qua non for pre-emptor to specify in the plaint the names of the witnesses in whose presence he made ' Talb-i-Muwathibat' and also specify the time and place to make 'Talabs' under section 13 of the Act, came under consideration before August Supreme Court of Pakistan in Sar Injam v. Abdur Razaq 1999 SCM R 2167, Shakirullah v Minullah Appeal No,573 of 1997 and Muhammad Ishaq v. Amir Nawaz Khan Appeal No,574 of 1997. It was held in paragraph No,12 of the judgment.
"We have, therefore, no hesitation to hold that it is not a sine qua non for a pre-emptor to specify in the plaint the names of the witnesses in whose presence he had made Talb-i-Muwathibat' and also specify the time and the place to make the ' Talb-i-Muwathibat under section 13 of the Act. "
' It was further held by the August Court, "No doubt Order VI, Rule 2, C.P.C. Provides that material facts are to be stated in the pleadings but it does not mean that evidence through which such material fact is to be proved shall also be stated in the pleadings. In our view it would be sufficient requirement of law if it is alleged in the pleadings that after having come to know of the sale' pre-emptor declared his intention to pre-empt the sale, this material fact has to be proved at the trial through evidence on the issue framed in this regard.
The evidence to be led need not be alleged in the plaint. However, if the plaintiff fails to mention the material fact that he has made Talb-i-Muwathibat' on his having gained knowledge of the sale would be debarred from leading evidence on the material fact of Talb-i-Muwathibat."
' It is on record that plaintiff/respondent served notice of 'Talb-i-Ishhad' on 1-10-1990 on petitioner/defendant which was received by him on 4-10-1990. The said notice was duly replied by the petitioner which establishes the fact that 'Talb-i-Ishhad's requirements were duly fulfilled. The respondent in the said notice has clearly stated that he came to know about the sale transaction on 30-9-1990 and on the same date he made Talb-i-Muwthibat'. The statement of respondent/ plaintiff was recorded as P.W.4. In his statement also he has stated that he has fulfilled the requirements of ' Talb-iMuwathibat' and 'Talb-i-Ishhad' properly. He was cross-examined at length but nothing could be brought on record to show that 'Talb-i-Muwathibat' was not made by him.
Talb-i-Muwathibat' or major demand to be made immediately upon receipt of information. It is not necessary, however, that it should be in presence of witnesses. The August Supreme Court of Pakistan in a case titled Zarghan Shah and others v. Muhammad Yaqoob Civil Appeal No,560 of 1995 has held, "It is pertinent to note that 'Talb-i-Muwathibat' need not be made in presence of witnesses."
' Likewise in C.P.As. Nos.44, 573 and 574 of 1997, decided on 30-4-1998, the August Supreme Court of Pakistan had held, "We have followed the principle annunciated by a learned Division Bench in the case of Ameer Jan on the non-desirability of stating in the plaint the time and place of making Talb-i-Muwathibat and the name of the witnesses before whom it was made. We are also inclined to hold that assertion in para.3 of the plaint coupled with the indication in the notice of Talb-i-Ishhad having made 'Talb- iMuwathibat' is sufficient compliance of requirement of section 13 (ibid)."
' In a case Muhammad Gul v. Muhammad Afzal 1999 SCM R 724 it was held, "Section 13(3)---Notice expressing Talb-i-Ishhad' was sent by preemptor after 10 days of making 'Talb-i-Muwathibat'. Statement of pre-emptor on oath coupled with notice sent to vendees within 10 days of ' Talb-i-Muwathibat' held was substantial compliance of legal requirements of section 13(3), Punjab Pre-emption Act, 1991."
11. It is proved on record that notice in terms of section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 was served upon the petitioner within time which was received by him and was duly replied. This action is sufficient complainance as regards making of 'Talb-i-Ishhad'. ---. Moreover, both the Courts below have held that the 'Talabs' were made in accordance with law. Their findings are based on evidence which are neither illegal nor irregular nor without jurisdictin, as such the same cannot be interfered with.
12. The next argument of the learned counsel for the petitioner was that Khasra No,366 is not contiguous with the suit property. Only Khasras Nos.365 and 367 are contiguous with Khasra No,364 owned by plaintiff. This argument equally has no force. Perusal of Akes-Shajra-Kishtwar Exh.P.W. 2/3 shows that property in dispute is situated in compact block. Khasra No,366 is adjacent to Khasras Nos.365 and 367. This document was placed on record without any objection and respondent/plaintiff has successfully proved that suit property comprising Khasra Nos.365, 366 and 367 are contiguous with Khasra No,364 owned by the plaintiff. In a case "Muhammad Yousalf v.Sikandar" PLD 1970 Peshawar 160 it was held, "Holding or parcel of a land comprising in a number of fields bearing different Khasra numbers--- Remains, one property---Person pre-empting sale of such .Parcel of land need not own property contiguous to all Khasra numbers thereof---Person owning property contiguous to any part of such land---Held would have right to preempt entire land comprised in Khasra numbers."
13. The 3rd argument of the learned counsel for the petitioner that the petitioner was entitled to charges of registration and District Council fee has a force in it. So far as the fixation of sale price of the property in dispute is concerned, the same was- fixed on the basis of statement of the parties recorded in Court where the pre-emptor agreed to pay the price of land as entered in the registered sale-deed. Although in the statement of the petitioner price of the suit land was stated to be Rs,3,71,125 whereas in the statement of the respondent it was mentioned as Rs,3,51,125. The difference of Rs,20,000 was very properly resolved by the learned District Judge by calling upon the learned counsel for the petitioner to explain the true position who frankly conceded that the excess amount was mentioned due to clerical mistake. Therefore, the learned District Judge fixed Rs,3,51,125 the price mentioned in the sale-deed as price of land for the purpsoe of pre-emption.
The petitioner was not held entitled to the amount of registration fee including stamp duty and District Council fee which was not granted.
' The petitioner was entitled to registration fee, stamps duty and district coucil fee because the vendee/pre-enmptor wanted to step into the shoes of vendee, therefore, he was liable to pay all the charges whatever the vendee had spent.
' In a case Muhammad Sadiq v. Mst. Shakeela Jameel 1983 CLC 1705 it was held, "As regards the last contention that the expenses in the form of, registration fee, counsel fee and stamps etc. Could not have been added to the sale price. It has obviously no force for the reasons that all these amounts were paid by the vendee and if the pre-emptor vendee wanted to get into the shoes of the vendee he had to pay what the vendee has done. Therefore, there is no force in this contention either. "
14. Even otherwise during the arguments the learned counsel for the respondent stated at bar that the respondent was still ready to pay the registration charges, stamp duty and District Council Fee if this Court orders him to do so. I, therefore, hold that the petitioner is entitled to receive the amount of registration charges, stamp duty and district council fee in addition to the sale price fixed by the learned District Judge.
15. The nutshull of the above discussion is that revision petition (Civil Revision No,20 of 1995) is partially accepted. The impugned judgment and decrees passed by the Courts below are only modified to the extent that the petitioner is held entitled to get/receive the registration fee, stamp duty and District Council Fee in addition to the sale price mentioned in the sale-deed.