' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal is by the leave of the Court against the impugned judgment of Peshawar High Court, Circuit Bench D.I. Khan, dated 14-12-1998. For convenience concluding para. From leave granting order is reproduced hereinbelow:-- "Leave to appeal is granted, inter alia, to consider whether the learned Judge in Chambers of the High Court was not justified to have set aside the judgment of the Appellate Court in his revisional jurisdiction inasmuch as the respondent-pre-emptor had failed to make 'Talb-i-Muwathibat' in accordance with section 13(1) of the Act, and has also omitted to mention making of 'Talb-i- Muwathibat; Order of status quo already passed in Chambers on 11-3-1999 shall, however, continue till the disposal of the appeal."
2. Precisely stating facts of the case are that respondent/plaintiff filed a suit for possession of land through right of pre-emption against petitioner details whereof were mentioned in the plaint dated 15-4-1989 submitted in the Court of Civil Judge Lakki Marwat, District Bannu. Appellant/defendant contested the suit inter alia pleading that the pre-emptors have failed to make the requisite Talbs in accordance with the provisions of section 13 of N.-W.F.P. Pre-emption Act (X of 1987) (hereinafter referred to as the "Act"). Learned trial Court decreed the suit on 22nd December, 1991 concluding thereby that the pre-emptor has established performance of Talbs in terms of section 13 of the Act.
However, District Judge, Lakki Marwat in appeal reversed the findings of the trial Court inter alia holding that respondent failed to comply with the obligatory formalities of section 13 of the Act.
Accordingly against the appellate judgment/decree respondent preferred civil revision before Peshawar High Court, D.I. Khan Bench which has been allowed vide impugned order, dated 14th December, 1998 setting aside the judgment/decree of the Appellate Court, as a consequence whereof judgment/decree of the trial Court was restored.
3. Learned counsel for vendee argued that the claim of respondent for possession of property through right of pre-emption has extinguished because he has failed to prove that in terms of section 13(1) of the Act he did perform the requisite Talbs. According to him if it is presumed that Talb-i-Muwathibat has been performed by respondent even then his suit was liable to be dismissed as the notice sent by him to appellant Exh.P.W. 2/3 does not find mention about performance of Talb-i-Muwathibat, therefore, in view of the judgments reported in 1995 SCM R 1510, 1998 SCM R 2227, 1999 SCM R 2167 the suit filed by the respondent was liable to be dismissed.
4. Learned counsel for the respondent controverting the stand of appellant's counsel stated that respondent successfully proved performance of Talb-i-Muwathibat and the learned trial Court as well as revisional Court has accepted the oral evidence so produced by him to substantiate his plea and as the appellant has not put up the case of misreading or non-reading of the evidence, therefore, the finding of facts recorded in this behalf warrants no interference by this Court in.Exercise of Constitutional jurisdiction. Besides it respondent has also mentioned in the notice Exh.P.W.2/3 about the performance of Talb-i-Muwathibat thereby confirming his intention to preempt the land purchased by the appellant. He further stated that this Court in the judgments reported in 1992 SCM R 1886, PLD 1997 SC 366 and PLD 1997 SC 883 has held that in pleadings, it is not necessary to disclose minor details on basis of which claim is set up. However, such aspects of the case can be establsihed by leading evidence during trial.
5. We have heard learned counsel for parties and while confining ourselves to the leave granting order we are of the opinion that as learned Civil Judge vide judgment/decree dated 22-12-1991 has held that respondent successfully established performance of Talb-i-Muwathibat by leading oral evidence and these findings have been confirmed by learned High Court in exercise of revisional jurisdiction during course whereof adverse finding operating against respondent on the question of performance of Talb-iMuwathibat vide judgment dated 3-4-1995 passed by District Judge were set aside, therefore, in absence of any exception on these findings on the ground of non-reading and misreading of evidence by the trial and revisional Court such findings admits no interference by this Court.
6. There is absolutely no cavil with the proposition of law that after having performed Talb-i- Muwathibat the pre-emptor is required to confirm his intention to pre-empt the property during process of making Talb-iIshhad by sending a written notice to the vendee in obedience of section 13(2) of the Act as it has been held by this Court in the case of Muhammad Ramzan v. Lal Khan (1995 SCM R 1510), Mst. Shamim Akhtar v. Kh. Maqsood Ahmed and 3 others (1998 SCM R 2227) and Sar Anjam v. Abdul Raziq (1999 SCM R 2167). Thus, with reference to law laid down in these judgments essentially examination of notice Exh.P.W.2/3 is necessary to ascertain as to whether after performance of Talb-i-Muwathibat did respondent confirmed his intention to pre-empt the suit-land during process of making Talb-i-Ishhad. It may be borne in mind that under section 13 of the Act no format has been prescribed to issue the notice of Talb-i-Ishhad as per requirement of subsections (2) and (3) of section 13 of the Act, therefore, from the language employed therein inference has to be drawn to gather the intention of the pre-emptor. A perusal of notice Exh.P.W.2/3 discloses that respondent confirmed his intention to pre-empt the land by making reference of two events firstly by personally approaching the vendee followed by a Jirga to convass the appellant vendee that he claims pre-emption in respect of the land on contiguity basis, therefore, he should surrender the same after receiving sale consideration. In our opinion personally apprising to appellant by respondent about his right of pre-emption in suit-land tantamounts to mentioning of Talb-i-Muwathibat and thus, mentioning the fact that appellant was also approached through Jirga clearly spell out his intention of asserting his right of pre-emption. Thus, using these phrases in the notice issued to appellant under section 13(2) read with section 13(3) of the Act is sufficient to hold that earlier performance of Talb-i-Muwathibat was duly mentioned. As such due to such reasons the test laid down by this Court in the judgments relied upon by appellant's counsel referred to hereinabove fully stands satisfied.
7. Learned counsel for the appellant also contended that as per cross-examination on the statement of P.W. Jehangir son of Haji Noor Muhammad he informed to his father about the sale of the suit-land on 25th March, 1989, therefore, he should have performed Talb-i-Muwathibat at the time when such information was conveyed to him through his son. To the contrary as per record respondent had obtained copy of the sale-deed from the office of Sub-Registrar on 22nd March, 1989 meaning thereby that prior to this date he had gained knowledge about the sale of the land but immediately he did not make Talb-i-Muwathibat, therefore, according to him it may be presumed that no Talb-i-Muwathibat was at all made by respondent, as such the suit filed by him may be dismissed as performing of both the Talb-i-Muwathibat is sine qua non.
8. We are not inclined to extend any benefit to the learned counsel on this count for the reason that record does not indicate whether in terms of section 32 of the Act the Sub-Registrar in exercise of his duty had issued a notice to General Public disclosing the factum of transaction of sale of the suit-land, thus, in absence of such information it would be too technical to non-suit the respondent that he had gained information about the sale of the suit land prior to 22nd March, 1989 when copy of sale-deed was obtained by him and after apprising him about the sale transaction he did not perform Talb-i-Muwathibat. Moreover, as it has been discussed hereinabove that the question about performance of Talb-i-Muwathibat is act open to discussion in view of the finding of learned trial Court which has been confirmed by learned revisional Court by impugned order that respondent did perform Talb-i-Muwathibat, therefore, argument raised in this behalf is accordingly repelled.
9. Learned counsel for the appellant then contended that issuance of notice Exh. P.W.2/3 itself is doubtful because as per the contents of the notice it was allegedly issued by Haji Noor Muhammad but acknowledgement due card contains the name of Jehangir Khan son of Haji Noor Muhammad in the column meant for the name of sender. In this sequence he further stated that the respondent has also not proved service of the notice in compliance of section 13(3) of the Act.
10. This aspect of the case in fact has lost its significance because the notice Exh.P.W.2/3 under section 13(3) of the Act has been tendered by respondent himself. Surprisingly credibility of his statement on this aspect of the case was not impeached during cross-examination, therefore, in absence of any explanation by the appellant in this behalf would lead to draw inference that notice Exh.P.W.2/3 was tendered being a primary document by the respondent himself and its genuinity and contents mentioned therein were admitted to be true and correct for all intents and purposes.
As such this argument as well being devoid of force is overruled.
' For the foregoing reasons we are inclined to conclude that respondent has performed Talbs i.e, Talb-i-Muwathibat and Talb-i-Ishhad according to section 13(1) of the Act, therefore, impugned judgment calls for no interference by this Court. Consequently appeal is dismissed leaving the parties to be their own costs.