' The brief facts, leading to the filing of instant civil revision are, that suit-land measuring 11 Kanals, situated in the area of Mouza Kirri Khaisore, Tehsil and District D.I. Khan, owned by Muhammad Ramzan was purchased by Javed Khan (minor) through his father Khan Muhammad, on the basis of Sale Mutation No,2847 attested on 24-3-1997 for an ostensible sale consideration of Rs.1,32,000.
Ghulam Yaseen, plaintiff, filed suit in the Court of Senior Civil Judge, D.I. Khan for possession through pre-emption of suit-land on the ground of being co-sharer, contiguous owner and participator in immunities and appendages of suit-land. He alleged that in fact the suit property was purchased for Rs.11,000 but the inflated amount of Rs.1,32,000 was inserted in suit mutation to frustrate the pre- emption suit. The vendee-defendant in his written statement resisted the suit on all grounds legal as well as factual. The parties were put to evidence on the following issues:--
(1) Whether the plaintiff has a cause of action?
(2) Whether the plaintiff is estopped to sue by his own conduct?
(3) Whether the suit is within time?
(4) Whether the plaintiff waived his right to sue?
(5) Whether the suit is bad due to non-joinder of necessary parties?
(6) Whether this Court has jurisdiction to entertain the present suit?
(7) Whether the suit is properly valued for the purpose of court-fee and jurisdiction?
(8) Whether the defendant has made improvements in the suit property to the tune of Rs.35,000?
(9) Whether the defendant got possession of the suit property six months prior to institution of the suit, if so its effect?
(10) Whether the plaintiff made Talbs in accordance with the provision a of section 13 of the N.- W.F.P. Pre-emption Act, 1987?
(11) Whether the plaintiff is having superior right of pre-emption
(12) Whether the sale consideration has been fixed in good faith or actually paid by the defendant?
(13) What is the market value of the suit property?
(14) Whether the thumb-impressions of witnesses Talb-e-Ishhad are forged and fictitious, if so its effect?
(15) Relief.
2. On the basis of evidence produced by the parties and arguments addressed before him, learned Civil Judge, D.I. Khan, seized of the matter, dismissed the suit on the issue of 'Talbs' vide his judgment dated 14-2-2002. An appeal was preferred thereagainst before learned District Judge, D.I.
Khan which was accepted vide judgment, dated 8-3-2003. The judgment and decree of learned trial Court dated 14-4-2002 was set aside and suit was decreed in favour of the plaintiff on payment of Rs.33,319 as market price of suit-land. Hence, instant civil revision.
3. I have heard at length Mr. Rustam Khan Kundi, Advocate, learned counsel for the petitioner and S. Mastan Ali Zaidi, Advocate, learned counsel for the respondent in the light of the material on file.
4. Learned counsel for the petitioner contended that learned trial Judge has rightly dismissed the suit of the plaintiff on valid and cogent reasons after taking into account the entire material on record and learned District Judge had no justification to take a contrary view, upset the verdict of the learned trial Court and decreed the suit. He also submitted that findings of the learned District Judge are the result of non-reading, misreading and mis-appreciation of evidence and cannot be allowed to remain intact. Additionally, he urged that an amourt of Rs.1,32,000 was paid as sale consideration of suit-land and learned District Judge had proceeded on wrong premises and erred in law to rely on one year average price list and determine the same as market price of suit-land.
In support of the pleas, he relied on Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Kabool Khan v. Shamoon through representatives and others 2001 YLR 51. I regret the submissions of the learned counsel do not carry weight. I share the view of learned counsel for the respondent that the learned District Judge has passed a detailed and elaborate judgment in this case in which the entire record of the case has been scrutinized and scanned. In order to satisfy myself, I have also gone through the evidence in this case and find myself in agreement with the view formed by learned District Judge that the plaintiff has duly fulfilled the requirements of -Talbs' and no prejudice seems to have been caused to the petitioner.
5. 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 envisages firstly, the act of prospective pre-emptor coming to know of the factum 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 Talbe-Muwathibar .
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. Section 13 of the N.-W.F.P.
Pre-emption Act, 1987 is reproduced below:-- "13. Demand of Pre-emption.--- (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(a) Talb-i-Muwathibat;
(b) Talb-i-Ishhad; and
(c) Talb-e-Khushumat."
6. An attempt has been made to show that respondent has participated in the proceedings and he was present at the time of attestation of suit mutation and as such he has waived his right of preemption. There is no evidence on record to establish waiver. The mere assertion of the petitioner that respondent waived his right of pre 13 emption by participating in suit transaction, without a positive attempt on his part to substantiate the same, is of no consequence.
7. Adverting to the objection regarding market value, I feel that learned District Judge was quite justified to place reliance on one yearly average (Exh.P.W.2/2) prepared by Patwari Halqa and make the same a basis of his judgment. It is by now a well-settled law that mutation is neither a proof of title nor it can establish the passage of money from the buyer to the seller. In a pre- emption case the vendee has to prove that the sale consideration mentioned in the sale-deed has been paid in good faith. It is the duty and obligation of vendee-defendant to prove payment of sale consideration statedly made by him. In the instant case, no material is available on file to indicate that in fact Rs.1,32,000 were paid to the vendor as sale price of suit-land. This document, as rightly held, has remained unchallenged. It is not denied that where on a material part of his evidence a witness is not cross-examined, it may be inferred that the truth of such statement has been accepted. Statement of a witness which is material to the controversy of the case particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and usually accepted as true unless displaced by, reliable, cogent and clear evidence. Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali -Naqvi 1991 SCM R 2300, Qamaruddin through his Legal Heirs v.
Hakim Mehmood Khan 1988 SCM R 819, Mst. Nazeer Begum v. Abdul Sattar PLD 1963 Kar. 465, Muhammad Mujibur Rehman Siddique v. Abdul Bari and 3 others PLD 1981 Kar. 537 and Karimuddin Shad v. Mst. Fatima Mian Ahmad 1989 CLC 545.
8. In the wake of above discussion, I find that judgment of the learned District Judge is well- reasoned and suffers from no legal or factual infirmity calling for interference of this Court in its revisional jurisdiction under section 115, C.P.C. The revision petition is dismissed with no order as to costs.