SARDAR MUHAMMAD RAZA, J.---This is an appeal filed by Haji Muhammad Saleem against the judgment dated 11-10-1999 of Peshawar High Court, Circuit Bench, D.I.Khan, whereby the concurrent findings dated 12-12-1996 and 5-1-1999 of Civil Judge, D.I.Khan and Additional District Judge, D.I.Khan, respectively, non-suiting the pre-emptor, were set aside and the respondent/pre-emptor, namely, Khuda Bakhsh was granted a decree as prayed for.
2. A property measuring 25 Kanals, 10 Marlas sithated in Village Daraban Kalan vide registered deed dated 11-7-1995 was transferred by Abdur Rehman through his Attorney Muhammad Ismail in favour of Haji Muhammad Saleem. Khuda Bakhsh plaintiff on 12-10-1995 pre-empted the aforesaid transaction. In the deed the transfer was dubbed as gift but it does not carry any significance because in the written statement the vendee admitted it to be a sale for a sum of Rs,2,36,000. The trial Court as well as the First Appellate Court non-suited the pre-emptor on the ground that he had not performed Talb-i-Muwathibat, whereas the High Court, after interpreting the evidence on record, came to the conclusion that the Talb was performed and accordingly granted Khuda Bakhsh pre-emptor the decree prayed for.
3. Learned counsel for the respondent came out with a preliminary objection that the instant appeal was barred by 23 days and hence needed to be dismissed downright. Learned counsel for the appellant, while following the grounds given in application for condonation of delay argued that in view of the valuation of the suit in the original Court, he was of the view that a petition for leave to appeal was to be filed for which the limitation was 60 days. That when he submitted the cause in the shape of petition, he was told by the office that the instant one was a case of regular appeal for which the limitation was 30 days. That having fallen into such genuine confusion, the petition was rightly filed within limitation and that in case it is to be treated as an appeal the limitation be condoned because of a plausible reason.
4. A similar situation had arisen before this Court in Haji Muhammad Nawaz v. Hussain Shah (1990 SCM R 1621) where appeal was filed as a petition for leave to appeal but had been treated as a direct peal and on that account had become time-barred by exactly a similar period of 23 days, this Court had condoned the delay on the ground that the appellant remained under impression that it was a case of leave to appeal but the office informed him that it was appeal as of right. In that case to the petition for leave to appeal was within time but not as a direct appeal. The delay was condoned. Similar attitude was shown in Chairman, N.-W.F.P. Forest Development Corporation v. Khurshid Anwar Khan (1992 SCM R 120 ), where, under similar circumstances and on oral request of the counsel the appeal was converted into a petition for leave to appeal and allowed. We had held therein that in the circumstance the question of limitation had lost its significance.
5. For filing a direct appeal the period of limitation provided under Rule 2 of Order XII of Supreme Court Rules, 1980, is 30 days, whereas for a petition for leave to appeal under Order XIII, rule 1 of the Supreme Court Rules, it is 60 days. In Sardar Abdur Rauf Khan v. Land Acquisition Collector, Abbottabad (1991 SCM R 2164) this Court under similar circumstances had given a lenient interpretation to the question of limitation holding that if a party loses his right to file a direct appeal because of the limitation, he may invoke Article 185 (3) for a petition for leave to appeal.
Such leave may either be granted or declined by the Court but in the circumstances of the present case and in view of the precedent of this Court, we convert this appeal into a petition for leave to appeal. This is with strict reference to the confusion that had arisen from the valuation of suit.
Whether this converted petition has any merit, requires to be determined in view of the facts as well as law on the subject.
6. The performance of Talb-i-Muwathibat is pure question of fact which in the instant case was alleged in the plaint. The plaintiff/pre-emptor had also examined evidence in this behalf which was duly appreciated by the trial Court as well as the Appellate Court, both of whom had non-suited the pre-emptor holding the view that the required question of fact was not proved. The two Courts had appreciated the evidence minutely, had discussed the same in detail and thereafter had arrived at concurrent conclusion. As it was a concurrent finding of fact given by two Courts below, the High Court should not have interfered with simply to substitute its own finding, notwithstanding the mode of appreciation of evidence being subjective. The concurrent finding of fact can be interfered with by the High Court only where such findings are based on "conjectural presumptions, erroneous assumptions, wrong proposition of law", "insufficient evidence misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, arbitrary exercise of power and where unreasonable view of evidence had been taken due to non- reading and misreading of evidence". The aforequoted view has lately been taken by this Court in Maj. Rashid Beg v. Rehmatullah Khan (PLD 2001 SC 443). Inview of such standard laid down by this Court for the High Court to exercise powers under section 115, C.P.C., we have to appreciate in the instant case as to whether the two Courts below had resorted to misreading of evidence or non- reading of evidence or had arrived at a wrong conclusion by reading into evidence something which did not exist at all.
7. The transaction in the instant case had taken place through a registered deed dated 11-7-1995.
Khuda Bakhsh pre-emptor, in para. No,3 of his plaint, has admitted that on 9-9-1995 he was informed of the transaction in his own house at 14430 hours by Abulam Hassan and that there and then he expressed his intention to pre-empt, In his statement as P.W,5, he reiterated the same stance taken in the plaint and added that he sent the witness Ghulam Hassan to the vendee Hail Muhammad Saleem asking him to surrender the land to the pre-emptor in recognition to his superior right of pre-emption. It is quite interesting that he had sent one man after the vendee but the reply was brought by two, namely, Ghulam Hassan and Abdul Aziz, He asserted that at the time when Ghulam Hassan brought the information, the vendee was alone in his house.
8. Abdul Aziz and Ghulam Hassan are also the witnesses of notice of Talib-i-Ishhad. Abdul Aziz P.W.6 also happens to be the son of vendor. His father appears to have died because, according to him, when he went to the office to get the inheritance mutation attested, the Patwari told him that his father had sold the entire land. He and Ghulam Hassan, both, went to inform Khuda Bakhsh plaintiff. It is worth to be noticed that Khuda Bakhsh tells of Ghulam Hassan alone as an informer and does not at all mention the name of Abdul Aziz, as such. If Abdul Aziz alleges his presence but the same is not accepted by the plaintiff, one can conveniently conclude that no such occurrence at all had taken place. In the plaint the plaintiff has mentioned the name of Ghulam Hassan as informer before whom Khuda Bakhsh made Talbi-Muwathibat but the name of Abdul Aziz is not mentioned. On the other hand. Abdul Aziz positively mentions his own name alongwith Ghulam Hassan. This was a marked contradiction.
9. Abdul Aziz, P.W.6, it may be recalled, shows himself to be in the company of Ghulam Hassan and thus, goes to narrate that he had gone to inform the plaintiff in the evening time whereas the plaintiff categorically mentioned it to be 2-00 p.m. Which, in the month of September, is five hours short of the evening. This is a glaring contradiction which the two Courts below had rightly appreciated not going beyond, the evidence. This should not have been interfered with by the High Court holding that it was a minor contradiction; whereas it was not. The matter does not end here.
Abdul Aziz said that he had called the plaintiff Khuda Bakhsh out of his house to furnish information whereas the plaintiff himself says that it was Ghulam Hassan and that he had come inside the house. This is another discrepancy resulting out of improper tutoring of witnesses. According to the witnesses the notice ofTalb-i-Muwathibat was written 14/15 days after the performance of Talb-i- Muwathibat. It is important because Abdul Aziz is a witness to the notice as well. If such information about notice dated 14-9-1995 is correct then the date of Talb-i-Muwathibat is thrown back to 30/31-8-1995 instead of 9-9-1995 as claimed by the plaintiff.
10. The other witness Ghulam Hassan P.W.7 is the son-in-law of the vendor. He and Abdul Aziz went to get the inheritance mutation entered but were informed of the sale. According to this winless, not two but one Ghulam Hassan went to the house of the plaintiff. According to Ghulam Hassan, they had gone to the plaintiff on the second day of their having received information from Patwari, whereas, Abdul Aziz said that it was one and the same day. This is another contradiction which is apparent on the face of record. It is interesting to note that the discrepancies having arisen, record stood rightly appreciated by the two Courts below but the High Court rejected the same holding them to be minor contradictions. We believe that it is not correct because the contradictions, in whatever subjective manner those may be appreciated, they are the contradictions between the witnesses and the plaintiff inter se as well as between the pleading and the evidence.
Consequently, we hold that the pre-emptor, through the evidence on record had failed to prove the performance of Talb-i-Muwathibat, that the two Courts had rightly appreciated the same and that the learned High Court should have avoided interference in the exercise of revisional jurisdiction, more particularly whet.. It 'was not a case of non-reading, misreading or over-reading of evidence.
11. Learned High Colin has also observed that the superior right of a plaintiff should not be allowed to be defeated on mere technicalities and that as held by this Court in Amir Jan v. Haji Ghulam Muhammad PLD 1997 SC 883, it was sufficient for the plaintiff to have had asserted in the plaint that he performed Talb-i-Muwathibat and that the details were not necessary. After having appreciated the circumstances of the instant case, we do not believe that any such interpretation is required because in the instant plaint the pre-emptor has made no omission and has categorically indicated the day and time of his having received the information and the person who made the disclosure. When once such-like assertion is made in the plaint, it is bound to be proved which in the instant case it was not.
12. Moreover, the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre-emption. The law as well as the fact is that the very right of pre-emption is not activated unless Talb-i-Muwathibat is performed. It should not be dubbed as a mere technicality at times, it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of preemption. The latter might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality, this Court in Said KamalShah's case PLD 1986 SC 360 would never have gone to the extent of saying that Talb-i-Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provisions qua Talb-i- Mutathibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of preemptors in the country were non-suited because of non-assertion and performance of Talb-i-Muwathibat though not required by the then prevailing pre-emption laws in the country. What we want to emphasize is that Talb-i-Muwathibat should not be taken lightly and should not be considered as a mere technicality. Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of a right of pre- emption.
13. In case of Amir Jan (supra) this Court hid, no doubt, suggested that the pleadings should be construed liberally.And performance of Talb-iMuwathibat should not be rejected merely because the details thereof had not been furnished in the plaint yet it is apparent that the Court was not properly assisted to answer the point that the details of Talb-i-Muwathibat were important with reference to time and place because therefrom the limitation for Talb-i-Ishhad is calculated. It is but obvious and apparent that all the three kinds of Talbs, one way or the other, are related to some phenomenon of limitation.
14. According to section 13, Explanation I of N.-W.F.P. Pre-emption Act, 1987, 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" the words "immediate demand" put a limitation on the prospective pre-emptor that he must express his intention immediately. This has also been interpreted as jumping demand but the immediacy can well be gathered from Hedaya (The Hedaya 1975 Edition, Chapter II, page 550) which provides. "If the man E. Claims his Shuffa in the presence of the company amongst whom he may be sitting when he receives the intelligence, he is the "Shafee", his right not being invalidated unless he delays asserting it till after the company have broken up".
15. This is a clear indication of compulsion on the prospective preemptor that he has to make Talb- i-Muwathibat in between the period of his having received the information in the Majlis and the dispersal of the Majlis. Beyond such limitation, the Talb if exercised would be invalid. The second step is that of Talb-i-Ishhad which has to be completed within 15 days after the performance of Talb-i-Muwathibat. A pre-emptor can be non-suited for non-performance of Talb-I-Ishhad as well and the performance of the latter is to be linked with the performance of the former. The third one is Talb-iKhusumat which is the filing of a pre-emption suit and that too within a period of 120 days.
16. It is a settled principle of law that in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or the knowledge of the plaintiff in specific so that the limitation is computed accordingly. It has never been made permissible in the realm of civil law that a plaintiff who does not disclose the point of time of his knowledge about the accrual of cause of action, he could be accommodated subsequently in the evidence to satisfy the same. In our view, it is important to tell the date and time of the performance of Talb-i-Muwathibat in the plaint so as to prove the immediate exercise thereof and also as to whether he performed Talb-i-Muwathibat in the same meeting and before the dispersal thereof.
17. The date and time is important to be mentioned in the pleadings because therefrom the performance of Talb-i-Ishhad has to be computed so as to be within 15 days. As mentioned earlier, in civil cases in general the point qi time qua the accrual of knowledge requires to be mentioned in specific so that nothing is invented during evidence as an afterthought. The cases of preemption should not be an exception to the general law and the day and time of performance of Talb-i- Muwathibat which is simultaneous with the accrual of knowledge of transaction should be mentioned in the pleadings so that, at the first instance the immediacy of the Talb-i-Muwathibat is appreciated and at the second instance the limitation qua the performance of Talb-i-Ishhad is calculated. This aspect has never been argued in any case before this Court where the view happens to be expressed to the contrary. Conceding, of course. That the material constituting evidence may or may not be mentioned in the pleadings.
18. A similar question had arisen before this Court in case of Altaf. Hussain v. Abdul Hameed alias Abdul Majeed (2000 SCM R 314), where it was held that a plaintiff could not be non-suited on the ground that day, time and place when and where the plaintiff learnt about the sale transaction were not specifically pleaded in the plaint. We have gone carefully through the above ruling and have observed that the question of limitation concerning Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat were never argued before the Court as discussed by us in the instant judgment.
Had the factum of limitation concerning these Talbs been argued before this Court in case of Altaf Hussain (supra), the decision would certainly have been altogether different.
19. Consequent upon what has been discussed above the instant petition having been converted into appeal is hereby allowed, the judgment and decree dated 11-10-1999 of Peshawar High Court is set aside and by restoring the concurrent finding of the Courts below, Khuda Baldish preemptor/respondent is non-suited.
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