What is fatal for a pre-emption suit?

PLJ 2013 Peshawar 74
[D.I. Khan Bench]

Present: Qaiser Rashid Khan, J.

MOSAM KHAN and another--Petitioners

versus

GUL MUHAMMAD and another--Respondents

C.R. No. 157 of 2006, decided on 16.12.2011.

N.-W.F.P. Pre-emption Act, 1987 (X of 1987)--

----S. 13--Suit for pre-emption--No right of pre-emption--Plaintiff had failed to mention source of information and defaults of talb-e-muwathibat in plaint--Performance oftalb-e-muwathibat and talb-e-ishhad within mandate of S. 13 of Act, were sine qua non for success of a suit for pre-emption--Non mentioning of time and place in plaint coupled with non-disclosure of source of information while making talb-e-muwathibat and non-mentioning of dates of notice of talb-e-ishhad in plaint was fatal for pre-emption suit.         [P. 76] A & B

PLJ 2007 SC 596 & 2011 SCMR 1545, rel.

M/s. Muhammad Waheed Anjum and Khuda Bakhsh Khan Baloch, Advocates for Petitioners.

M/s. S. Mastan Ali Zaidi and Zain-ul-Abidin, Advocates for Respondents.

Date of hearing: 16.12.2011.

Judgment

Through the instant revision petition, Mosam Khan and Faiz-ur-Rehman, petitioners/defendants, have assailed the concurrent judgments and decrees of the learned two Courts below dated 5-11-2001 and 4-4-2006 respectively, whereby the pre-emption suit of Gul Muhammad, respondent/plaintiff was decreed.

2.  Gul Muhammad and Niaz Muhammad, sons of Shah Muhammad, respondents/plaintiffs, had filed a suit for possession through pre-emption against Mosam Khan andFaiz-ur-Rahman, petitioners/defendants, in respect of land measuring 5 kanals 9 marlas situated in mouza Panyala Shumali, tehsil and district D.I.Khan, fully detailed in the plaint, on the basis of contiguity, immunities and appendages. The plaintiffs averred in the plaint that the petitioners/defendants without giving them any notice and without their knowledge had actually purchased the suit land through registry Wasiqa No. 156 dated 5-6-1995 for an ostensible sale consideration of Rs. 1600/-, but in order to defeat their pre-emptive rights, an exaggerated and inflated amount of Rs. 16,500/- was mentioned in the registered deed.

3.  The petitioners/defendants contested the suit by filing written statement and the divergent pleadings of the parties gave rise to the framing of ten issues including relief. The learned trial Judge on scanning the evidence brought on record and considering the arguments advanced at the bar decreed the suit of the plaintiffs for sale consideration of Rs. 3,540/32 vide judgment and decree dated 5-11-2001. Feeling aggrieved therefrom, the petitioners/defendants assailed the said findings of the learned trial Judge before the appellate Court but in vain vide judgment and decree dated 4-4-2006 passed by the learned Additional District Judge-II D.I.Khan. Hence this revision petition.

4.  Learned counsel for the petitioners argued that both the Courts below have not appreciated the evidence brought on record in its true perspective and their impugned findings are based on Surmises and conjectures. He argued that Gul Muhammad, Respondent No. 1, while associating himself with his brother Niaz Muhammad, Respondent No. 2, in the plaint was possessed of no preferential right of pre-emption in khata Nos. 169 and 170 and thus the suit was liable to be dismissed on this score alone. He argued that the plaintiff had failed to mention the source of information and details of Talb-e-mt in the plaint which fact had wrongly been ignored by both the Courts below. The learned counsel contended that the plaintiffs had not been able to prove the date, time in the plaint; therefore, the suit was liable to be dismissed. The learned counsel submitted that no right of pre-emption was available to the plaintiffs, therefore, the suit is liable to be dismissed.

5.  In rebuttal, learned counsel for the respondents defended the impugned judgments and decrees of the learned two Courts below on the grounds enumerated therein.

6.  I have carefully gone through the record of the case and anxiously considered the arguments of the learned counsel for the parties.

7.  Perusal of the record indicates that the plaintiffs/respondents were unable to prove their case through cogent and tangible evidence available on file, therefore, the impugned findings of the learned two Courts below are based on mis-reading and non-reading of evidence. The performance of talb-e-muwathibat and talb-e-ishhadwithin the mandate of Section 13 of the NWFP Pre-emption Act, 1987 are the sine qua non for the success of a suit for pre-emption. In the case in hand, as per para-3 of the plaint, the Respondent/Plaintiff No. 1, namely, Gul Muhammad, came to know of the registry about the suit property on 9-7-1995 and he performed talb-e-muwathibat and then within the prescribed period issued the notice of talb-e-ishhad to the petitioners/defendants. Similarly, in para-4 of the plaint, the Respondent/Plaintiff No. 2, namely, Niaz Muhammad, real brother of the Respondent/Plaintiff No. 1 alleged to have come to know of the said sale on 29-8-1995 and he after making talb-e-muwathibat served the petitioners/defendants with the notice of talb-e-ishhad. Both the brothers failed to mention the time and place where they allegedly made talb-e-muwathibat and similarly did not mention the respective dates when they allegedly but separately issued notices to the petitioners/defendants. Another interesting feature of the suit is that both the respondents being real brothers alleged different dates about getting knowledge of the sale in question without even showing the source of such information. This singularly makes the version put forth by them in the plaint as a cock and bull story. Moreover, the non-mentioning of time and place in the plaint coupled with the non-disclosure of source of information while making talb-e-muwathibnat and non-mentioning of dates of notice of talb-e-ishhad in the plaint is fatal for a pre-emption suit. Reliance in this respect may advantageously be placed on the cases of Mian Pir Muhammad and others Vs. Faqir Muhammad through LRs (PLD 2007 SC-596) and Ghafoor Khan Vs. Israr Ahmad (2011 SCMR-1545). Both the learned lower Courts failed to take stock of such glaring illegalities while decreeing the suit of the respondents through the impugned findings which cannot be sustained under the law.

8.  For the reasons stated above, I accept this revision petition, set aside the impugned judgment and decree of the learned trial Court and that of the learned appellate Court in RCA No. 65/2002 and accordingly dismiss suit of the respondents/plaintiffs, namely, Gul Muhammad and Niaz Muhammad with no order as to costs.

(R.A.)  Petition accepted