' The petitioner instituted suit to enforce his right of pre-emption in respect of suit land, fully described in the headnote of the plaint, purchased by the respondents from Akhtar Zaib Khan for Rs,1,50,000 on the basis of registered Sale-Deed No,622 attested on 22-11-1994.
2. It was averred in the plaint that on 15-12-1994 the petitioner was present at Kutchery Chowk, Mansehra when he was informed by Aurangzeb son of Gohar Aman, about the sale in question.
Having come to know of the transaction, the petitioner in the same sitting, declared his intention in the presence of Aurangzeb and Muhammad Ashraf to preempt the suit land.' He then issued the notices, i,e, Talb-e-Muwathibat and Talb-e-Ishhad respectively to the respondents with request to admit his superior right of pre-emption but the respondents declined to do so. The petitioner also contended that in fact the suit property was purchased for Rs,50,000 only but an inflated amount of Rs,1,50,000 was inserted in the sale-deed with a suit to frustrate the pre-emptive right of the petitioner.
3. The vendee-defendants resisted the claim of the petitioner and raised the pleas of limitation, estoppel and waiver. The pleas of the parties were reduced to as many as 12 issues. For the purpose of this civil revision, I am concerned with Issues Nos.3 to 5 and 8 to 12 which read:--
(3) If the suit bad in its present form?
(4) If the suit within time?
(5) Has the plaintiff waived off his right of pre-emption because of his presence in the sale transaction?
(8) What is the actual sale consideration?
(9) Whether the Talbs have been made in accordance with section 13 of N.-W.F.P. Pre-emption Act, 1987?
(10) Has the plaintiff superior right of pre-emption?
(11) Whether the requirement of section 12 of Pre-emption Act were complied with?
(12) Relief.
4. Upon consideration of the evidence adduced by the parties in support of their respective contentions, the learned Civil Judge, Mansehra, seized of the matter, dismissed the suit with costs vide judgment and decree, dated 15-9-1996 holding that the plaintiff had not observed the requirements of Talbs according to law and the plaintiff having actually participated in the sale bargain, waived his right of pre-emption. An appeal was preferred before Additional District Judge, Mansehra which was dismissed by judgment and decree, dated 21-6-1997, giving rise to instant civil revision.
5. Mr. Abdul Latif Khan, Advocate for the petitioner attempted to argue that evidence in this case produced on behalf of his client in support of his claim has not been properly appreciated and the Courts below have deviated from settled principles regarding appreciation and assessment- of evidence. Additionally it was urged that the Appellate Court has passed the impugned judgment and decree in a slipshod manner without considering the points raised by the petitioner in memorandum of appeal which has materially prejudiced the rights of the petitioner. Mr. Fida Muhammad Khan, Advocate, learned counsel for the respondents, on the contrary, supported the concurrent views of the Courts below and maintained that the petitioner having failed to prove his claim in respect of suit property the Courts below had good reasons to non-suit him and that the impugned judgment and decrees require no interference. He relied on PLD 1993 Lah. 443, 1992 SCMR 1886, 1990 CLC 144 (Lahore), 1999 CLC 1878 (Peshawar), 1991 MLD 1631 (Karachi), 1992 CLC 1304 (Karachi) and 200 CLC 336 (Peshawar).
6. The three demands asserting the right of pre-emption have their own respective connotations.
'The first demand, i,e, Talb-e-Muwathibat or, what is literally meant, the jumping demand is defined in the first Explanation to subsection (1) of section 13 which envisage firstly, the act of prospective pre-emptor coming to know of the fact= of a sale, secondly, such knowledge/information emanating from a sitting or meeting, i,e, Majlis and thirdly, and rather foremostly declaration of his intention to exercise the right of pre-emption immediately on gaining the knowledge of the sale.
' A person who intends to pre-empt a sale transaction by enforcing his right of pre-emption shall make an immediate demand in the sitting or meeting in which he has come to know of the sale declaring his intention to exercise the right of pre-emption technically called "Talb-eMuwathibat".
He shall be thereafter required to make the demand of "Talb-e-Ishhad" by establishing evidence as soon as possible but not later than two weeks from the date of notice under section 32 of the Act or knowledge whichever may be earlier, by sending a notice in writing attested by two truthful witnesses to the vendee under a registered postal cover with acknowledgment due confirming his intention to exercise the right of pre-emption, then comes the demand for "Talb-e-Khusumat" by filing a suit in a competent Court for enforcing his right of pre-emption.
7. In the instant case the petitioner has produced sufficient evidence to establish that having gained the knowledge about the suit transaction through Aurangzeb he immediately declared his intention in the same sitting in the presence of Muhammad Ashraf, Aurangzeb to exercise his right of pre-emption in respect of the demised land and thereafter issued the Talbs in accordance with law. The mere fact that one of the vendee was issued original notice whereas the remaining was served with photostat copies, by itself, cannot be considered a good ground to dislodge the petitioner's claim, who is admittedly co-sharer in the suit property. It may be stated here that the vendee-defendants are real brothers and they reside in the same house. The issuance of photocopies of the notices does not appear to have affected their rights. So far as the pleas regarding estoppel and waiver are concerned, the onus was heavily placed on the respondents to prove the same but they have failed to discharge the same. There is no satisfactory evidence on record to show that the petitioner had actively participated in the suit bargain in order to give an impression to the vendee-defendants that he is not interested to exercise his right of pre-emption in suit land and thus, the pleas of estoppel and waiver create impediment in his way.
8. Adverting to Issue No,8 regarding sale price of suit land I find that the same has been purchased in consideration of Rs,1,50,000 in good faith and no inflated amount has been mentioned in the sale-deed.
9. An objection has been raised on behalf of the respondents that in view of the concurrent findings given on a factual aspect of the case, the Court is not competent to exercise its revisional jurisdiction in the matter. The submission of the learned counsel is not tenable. True the High Court in its revisional jurisdiction under section 115, Code of Civil Procedure is not competent in undertaking its own appraisal of evidence in the face of the concurrent findings of the two Courts below, in the absence of any jurisdictional error or material irregularity but the fact cannot be lost sight of that the High Court in exercise of its revisional jurisdiction is competent to set at naught the concurrent finding of two Courts below if it was satisfied that the finding was based on misreading or non-reading of evidence. Concurrent finding of fact do not always stand in the way of the High Court to set them at naught in the appropriate cases. If the Court commit an error in the mode prescribed for the exercise of jurisdiction then the High Court has the power to interfere under section 115, C.P.C.
10. The case-law produced on behalf of the respondents has no bearing on the facts and circumstances of the present case and speak of the different situation. It does not promote the case of the respondents in any manner.
11. For reasons detailed above, I accept the revision petition, set aside the impugned judgments and decrees of the Courts below and pass a decree for possession through pre-emption of suit land in favour of the petitioner against the respondents on payment of Rs,1,50,000 as sale price of the suit land. The parties are left to bear their own costs.