Rahimzada petitioner/plaintiff filed suit for possession through preemption of land measuring .60 Kanals 13-112 Merles situated in Village Sheikh Yousaf Tehsil and District Mardan more particularly described in the heading of the plaint in the Court of learned Civil Judge, Mardan. The said suit was resisted by the respondents/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit in favour of petitioner/plaintiff vide judgment and decree, dated 1-2-1992. Feeling aggrieved of the said judgment and decree the respondents filed appeal in the Court of learned District Judge, Mardan, which was allowed vide judgment and decree, dated 12-6-1993. After remand, the learned trial Conut dismissed the suit vide judgment and decree dated 7-3-1995. Feeling aggrieved of the said judgment and decree the petitioner filed appeal No,19/13 of 1996, which was also dismissed alongwith the application for additional evidence and amendment of the plaint vide judgment and decree, dated 14-12-1996. Being not content with the judgments and decrees, the petitioner has tiled the revision petition in hand.
2. Mr. Abdul Samad Khan Zaida, Advocate the learned counsel for the petitioner argued that the suit filed by the petitioner was within time from the date of decree for specific performance passed in favour of respondent on 1-10-1989. The suit was filed on 25-9-1990 i,e, within one year, the period of limitation prescribed by law. The amendment in section 31 of the N.-W.F.P. Pre-emption Act was though retrospective but was applicable with effect from 31-12-1991. Since the suit it had been tiled much earlier to that amendment, therefore, it was within time as held in Muhammad Hussain and others v. Muhammad and others (2000 SCM R 367).
3. It was further argued that the respondents/defendants did not raise any objection to the Talb-e- Muwathibat made by the petitioner/plaintiff, but only notice of Talb-e-Ishhad was objected to in the written statement that the same was not in accordance with law. Since no plea about the Talbs was raised and the respondents/defendants had given up the said plea therefore, it was not necessary for the petitioner/plaintiff to have proved notice of Talb-eIshhad, but still Muhammad Tahir P.W. Was examined and the said notices were also placed on record as Exh.P.W.5/7 to 5/14.
The notices were duly received by the respondents/defendants.
4. Talb-e-Muwathibat and Talb-e-Ishhad were made at the same day and the same were within time prescribed by law.
5. On the other hand Mr. Abdul Sattar Khan, the learned counsel for the respondents argued that the notice of Talb-e-Ishhad Exh.P.W.5/7 to 5/14 were not proved in accordance with law. It was necessary for the petitioner/plaintiff to have examined both witnesses and non-production of one of the two was fatal to the case of petitioner/plaintiff. Reliance in this regard was placed on Umatul Latif v. Zainat Bibi (2001 M LD 355) and Muhammad Subhan etc. v. Mir Qadam 2001 M LD 1716.
6. It was also argued that the agreement to sell the land in dispute was entered into between the vendor and vendee in the year 1983. This fact was very much in the knowledge of the petitioner/plaintiff as has been admitted by Muhammad Tahir P.W.5 attorney of plaintiff/petitioner.
When the transaction of sale was initiated in the year 1983 it was incumbent upon the petitioner/plaintiff to have raised Talb-e-Muwathibat but the same was made in the year 1990, hence it was not made within the specific time mentioned in section 13 of the N.-W.F.P. Pre-emption Act, 1987.
7. There was concurrent findings of facts recorded by the Courts of competent jurisdiction, which need no interference by this Court.
8. I have heard the learned counsel for the parties and perused the record of the case carefully.
9. The argument of the learned counsel for the petitioner that the suit filed by the petitioner was within time has a force in it. The perusal of the record shows that agreement to sell the suit property was entered into between the vendor and vendee in the year 1983. At that time it was not requirement of law to raise Talbs on gaining the knowledge of sale. No doubt Muhammad Tahir P.W.5 attorney of petitioner/plaintiff admitted that he had knowledge of the sale transaction but the petitioner/plaintiff could not be non-suited on this ground that he failed to raise Talbs in the year 1983. The decree for specific performance in this case was passed on 1-10-1989, whereas the suit in hand was filed on 25-9-1990 i,e, within one year, the period of limitation prescribed by law.
The amendment in section 31 of the N.-W.F.P. Pre-emption Act was made effective from 31-12-1991.
Since the suit had been tiled before the said amendment, therefore, the same was within time as held in Muhammad Hussain and others v. Muhammad and others (2000 SCM R 367).
10. The argument of the learned counsel for the petitioner that no objection was raised with regard to Talbs made by the petitioner/plaintiff in the written statement by the respondents/defendants, therefore, same would amount to waive has no force at all. In a pre-emption suit it is the duty of the plaintiff to prove that he made Talbs in time in accordance with law even if the defendants raised no objection but still it is the plaintiff who has to satisfy the conscience of the Court with regard to Talbs made by him.
11. The argument of the learned counsel for the respondents (Mr. Abdul Sattar Khan) that the petitioner had failed to prove notice of Talb-e-Ishhad by not producing two marginal witnesses has a force in it. The requirement of section 13 of the N.-W.F.P. Pre-emption Act is that the Talb-e- Ishhad had to be made in presence of two truthful witnesses who were to attest the notice. Such notice might not be signed by witnesses or even by the pre-emptor but the evidence that such Talbs had been made in presence of truthful witnesses could not be dispensed with. It is by now established principle that non-production of second marginal witness of Talb-e-Ishhad was fatal to the case of pre-emptor as held in Mst. Umatul Latif v. Mst. Zainab Bibi (2001 M LD 355). In the case in hand the petitioner/plaintiff had examined only one witness of the notice Talb-e-Isshad namely Muhammad Tahir: The other witness namely Zahoor Muflammad was not produced and no reasons whatsoever for his non-production were given. Therefore, the requirements of law were not fulfilled.
12. Since the petitioner/plaintiff had failed to prove that he had made Talbs in accordance with law, therefore, the Courts below had rightly dismissed his suit as well as appeal filed by him. I have not been able to find out any misreading/non-reading in the evidence or any illegality or any material irregularity or any jurisdictional error or defect warranting interference in the impugned concurrent findings recorded by the Courts of competent jurisdiction. Resultantly, the revision petition in hand is dismissed with no orders as to costs.