The petitioners herein have assailed the judgment and decree dated 17-10-1994 of the learned District Judge, Karak whereby he dismissed the appeal of the petitioners and thus, upheld the judgment and decree dated 30-6-1994 of the learned trial Court.
2. The facts forming the background of this litigation are that the petitioners instituted a suit for the enforcement of right of pre-emption in the Court of learned Senior Civil Judge, Karak which was dismissed aid appeal there against also met the same fate, hence this revision petition.
3. The learned counsel appearing on behalf of the petitioners contended that the findings of both the Courts below are based on misreading and non --reading of evidence and that their conclusions are not supported by the evidence on the record. The learned counsel next contended that the law relating to enforcement of right of pre-emption has not remained stringent as it was before because in view of the latest pronouncements of the Supreme Court the rigors for the enforcement of right of pre-emption have been reduced and it is now interpreted quite liberally and absence of particulars as to date, time and place of making jumping demand and the name of the person informing about the sale cannot be taken to non-suit the pre-emptor. He by referring to section 31 of the N.-W.F.P. Pre-emption Act X of 1987, hereinafter called the Act, contended that knowledge about the sale before completion thereof will not necessitate the making of preliminary immediate demand as sale before the attestation of its mutation or registration of deed cannot be deemed to have any existence, therefore, failure to make immediate demand before either of them will not call for the dismissal of suit. He in this connection placed reliance on a judgment of the Supreme Court of India rendered in the case of Ram Saran Lal and others v. Mst. Domini Kuer and others AIR 1961 SC ,1747. The learned counsel by referring to the judgment of the Supreme Court in the case of Zarghoon Shah v. Muhammad Yaqoob Khan to Civil Appeal No.560 of 1995 contended that immediate demand need not be made in the presence of witnesses and failure to produce them for the proof of immediate demand will not be fatal to the case of pre-emptor.
4. On the other hand, the learned counsel for the respondents contended that failure to make immediate demand after knowing about the sale is fatal to the, case of a pre-emptor as by making it he is not to loose anything but his failure to make it would inevitably be met with consequences which are essentially damaging to his case. He in this connecting placed reliance on the case of Zafar A.I v. Zainul Abiddin and another 1992 SCM R 1886. The learned counsel for the respondents by summing up his arguments contended that the concurrent findings of fact cannot be interfered with in the absence of any jurisdictional error in the exercise of revisional jurisdiction of this Court, therefore, this revision petition is liable to be dismissed.
5. I have carefully considered the arguments of the learned counsel for the parties and perused the record. The argument of the learned counsel for the petitioners that sale before the attestation of mutation or registration of deed cannot be deemed to have any existence goes against the very definition of sale, which means, transfer of ownership in exchange for price paid, or promised or part paid or part promised. Even under the Act the expression sale means transfer of ownership of immovable property in exchange for valuable consideration and has thus, no nexus with the attestation of mutation or registration of deed as the same, more often than not, can be oral and thus effective from the date when it is entered into. Want of attestation of mutation or registration of deed will not prevent a sale from being a sale though later on it may be formalised or documented through the attestation of mutation or registration of deed which in fact and effect only confirms an already existing fact or a fait accompli.
6. The next argument of the learned counsel for the petitioners that knowledge about a sale before the attestation of mutation or registration of deed will not necessitate the making of immediate demand is not in conformity with the provision of section 13 of the Act hi is reproduced as below: "13. Demand of Pre-emption 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-Muwathibat; (b)Talb-i-Ishhad; and (c)Talb-e-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.
(1)'Talb-i-Ishhad' means demand by establishing evidence.
(II)'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)(Subject .To his ability to do so, 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 undo: section 32, or knowledge whichever may be earlier, make Talb-i---ishhad by sending a notice in writing attested by two truthful witnesses, under registration cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption:"
7. Even a casual glance at the above quoted provision would show that it requires a pre-emptor to make immediate demand in the sitting or meeting in which he comes to know about the fact of sale, regardless altogether of attestation its mutation or registration of deed. This omission, to say the least, is not accidental but deliberate and purposeful. Had the legislature intended to link or condition making of immediate demand or demand through notice with the knowledge of attestation of mutation or registration of deed, it would have clearly and expressly provided about that. But the very absence of the words attestation of mutation or registration of deed' in the' section would leave no manner of doubt that sale or knowledge about it has no nexus with the attestation of mutation or registration of deed. Therefore, the argument of the learned counsel for' the' petitioners would be void and vacuous both legally and logically. Apart from this; it has 'never been the case of the petitioners that they did not make immediate demand on knowing about the sale because it was not complete by then.
8. A pre-emptor under the Act is required to make immediate demand as soon as he is apprised about a sale to indicate his natural and spontaneous re-action thereto before the dispersal of the gathering in which he hears about it. Where despite receiving intelligence about a sale through any source whatever he keeps still and expresses no intention to pre-empt it, the assumption would thus, be natural to arise that his need to acquire the property through pre-emption has not sprung from his natural and spontaneous re-action but from an object other than the one underlying the spirit of this right. It is in view of this important aspect that immediate demand before the demand through notice and Court has been made sino qua non for the enforcement of this right.
9. The record reveals that despite knowledge about the sale 6/7 days before the attestation of mutation the petitioners did not 'make the immediate demand which is a condition precedent for making demand through notice and Court, therefore, their failure would inevitably call for; the dismissal of their suit.
10. The last argument of the learned counsel for the petitioners that immediate demand need not be made in the presence of witnesses becomes relevant only when the knowledge of the petitioners about the sale 6/7 days before the attestation of mutation and their failure to make immediate demand at that time is ignored or left out of account, which, to my mind, in the light of the foregoing discussion, cannot be. Even if it be done, this argument cannot be brought to rescue of the petitioners because it is not their case that they came to know about the sale and ,that they made immediate demand when none was present Their case, instead, is ,that they came to know about the sale and made the immediate demand amidst the common gathering in which the mutation was attested. Once the making of immediate, demand was alleged to have been made in the presence of the witnesses then their examination cannot be dispensed with and failure to produce them for its proof would inescapably give rise to an adverse inference in terms of Article 129(g) of Qanun-e-Shahadat Order. For the aforesaid reasons the judgments relied upon by the learned counsel for the petitioners are distinguishable and, therefore, not relevant to the ease in hand. Besides this all the points agitated by the learned counsel for the petitioners do not travel beyond the sphere and scope of factual controversy which cannot be attendedto by this Court in the exercise of its revisional jurisdiction. In the absence of any jurisdictional error or, infirmity in the findings of the two Courts below, I do not feel inclined to interfere therewith.
11. For the foregoing reasons, I see no merit in this revision petition I and thus, dismiss the game with no order as to costs.
Q.M.H./M A.K./304/P