' Through this civil revision petition Gul Muhammad has questioned the correctness and legality of the decree and judgment dated 22-7-1996 of the learned District Judge/Zilla Qazi, Malakand whereby on acceptance of the appeal of respondents the judgment and decree dated 11-4-1996 of the learned Senior Civil Judge/Aala Illaqa Qazi, Malakand at Batkhela was set aside and the suit for pre-emption of the petitioner was dismissed.
2. A synoptical sketch of facts of this case is that the petitioner brought a suit for the enforcement of his pre-emptive right against the respondents under the PATA Regulation in the Court of EAC Batkhela with the powers of Deputy Commissioner under the PATA Regulation-II of 1975 which was referred to 'Jirga' wherein the evidence was recorded but before the final verdict the 'Nifaz-e- Nizam-e-Shariah' Regulation, 1994 came into being and the suit was transferred to the Court of Senior Civil Judge, Malakand as Aala Illaqa Qazi. During the proceedings of the case under PATA Regulation when, it surfaced that the disputed land was purchased for the minors, an amended plaint was filed wherein the minors were also made as defendants. Relying on the evidence already recorded under the PATA Regulation the parties did not wish to produce further evidence.
The learned Aala Illaqa Qazi after evaluating the evidence decreed the suit of the petitioneRs, An appeal by the respondents was filed before the learned Zilla Qazi who after hearing the, arguments allowed the appeal on 4-11-1996 by setting aside the judgment and decree of the learned trial Court.
3. Syed Azim Dad Advocate counsel for the petitioner has argued that the judgment of the learned trial Court culminating into decree in favour of the petitioner was a well reasoned judgment and the evidence of the parties was properly appreciated whereafter a sound opinion was formulated by the learned trial Court and decreed the suit of the petitioner. He further contended that the judgment of the learned Zilla Qazi is the outcome of improper appreciation of the evidence and wrong construction of law. He argued that the findings of the learned Appellate Court both on the question of waiver as well as 'Talbaat' are erroneous and not supported by the evidence. Thus the conclusion drawn by the learned Zilla Qazi being erroneous was not warranted and calls for setting aside of his judgment and decree.
4. On the other hand Mr. Nasir Mehfooz Advocate learned counsel appearing for the respondents has defended the judgment of the learned District Judge on the same grounds that are incorporated therein.
5. I have heard and considered the rival contentions of the learned counsel for the parties scouring the record of the case. For the purpose of enforcing the right of pre-emption under the N.-W.F.P.
Pre-emption Act, 1987 as well as under the Islamic law the requisite 'Talbaat' i,e, A 'Talb-i- Muwathibat' and 'Talb-i-Ishhad' are considered as sine qua non and the failure of plaintiff in making either of the 'Talbs' would entail the consequences of extinguishments of the right of the plaintiff-preemptor. The evidence of the petitioner has been critically examined for the purpose of ascertaining the factum of making of the requisite 'Talbs'. The record indicates that neither the petitioner/plaintiff in his statement before the trial Court nor his other witnesses have spoken a single word about the making of 'Talb-i-Muwathibat'. The examination of the statement of petitioner indicates that after gaining knowledge of the impugned sale he immediately sent the notice through postal process to the respondents. As per record one notice of 'Talb-i-Ishhad' was sent to the respondents on 29-9-1992 through his counsel which is Exh.P.W.-1/2 and another notice in the form of reply was sent again through counsel on 3-11-1992. The need of sending the second notice was felt when the petitioner was informed that the impugned sale was made on 30-9-1992 and not on 28-9-1992. Thus considering the first notice Exh.P.W.1/2 being premature the second notice in the form of reply was sent not to the respondents but to Mr. Hussain Shah, Advocate counsel for the respondents. Interestingly neither in Exh.P.W.1/2 the factum of making of 'Talb-i- Muwathibat' was mentioned nor in Exh.P.W.1/5 was any indication of the 'Talb-i-Muwathibat' made.
Another feature of the case on the point of 'Talbs' is that there is no attesting witness either to Exh.P.W.1/2 or to Exh.F.W.1/5 which undermine the legal worth of the notice of 'Talb-i-Ishhad'. In absence of any positive evidence on the point of making of 'Talb-i-Muwathibat' it can safely be said that the petitioner failed in establishing the making of the essential 'Talb' of 'Muwathibat'. The learned counsel for the petitioner on this point has made an endeavour to convince me that Noor Muhammad son of the petitioner when examined as P.W.1 being a special attorney stated that they sent a notice through counsel as soon as they received the information of sale transaction. Thus it can implicitly be taken that 'Talb-i-Muwathibat' was made by the petitioner. I regret my inability to subscribe to the contention of the learned counsel for the petitioner. The making of 'Talbs' being an essential requirement of law has to be proved explicitly through positive legal evidence and cannot be inferred by interpreting the circumstances indirectly. The learned trial Court has mentioned that the petitioner has made the requisite 'Talbs' but such observations of the learned trial Court do not find support from the record.
' On the facts and circumstances stated above, I am of the firm view that the judgment of the learned Appellate Court does not suffer from any legal infirmity so as to call for interference in the revisional jurisdiction by this Court. Consequently this revision petition being destitute of merit is dismissed. The parties shall bear their own costs.