2012 M L D 531
Before Mian Fasih-ul-Mulk, J
TAJ MUHAMMAD and another---Petitioners
BAHADAR KHAN and others---Respondents
Civil Revision No.403 of 2002, decided on 28th October, 2011.
Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---
----S.13---Making of Talbs---Plaintiffs claiming superior right of pre-emption on the basis of co-sharership, contiguity, amenities and appendages, filed suit for pre-emption---Suit was decreed by the Trial Court, but on appeal, Appellate Court below set aside judgment and decree of the Trial Court and dismissed the suits of the plaintiffs---Validity---Plaintiffs on gaining knowledge about the sale transaction of suit property in favour of the defendants/vendees, made the jumping demand there and then followed by notice of Talb-e-Ishhad; and filed suit within time claiming their superior right of pre-emption---Plaintiffs claimed superior right of pre-emption in respect of suit property on the basis of co-sharership and contiguity, whereas the defendants/vendees had failed to prove such qualifications---Trial Court after analyzing the evidence available on record had rightly passed decree in favour of pre-emptors, which had wrongly and illegally been set aside by the Appellate Court below---Impugned judgment and decree of Appellate Court was set aside and that of Trial Court stood restored, in circumstances.
PLD 1981 Lah. 321; PLD 1982 Baghdad-ul-Jadid 58 and 1987 CLC 229 ref.
Mian Muhibullah Kaka Khel for Petitioners.
Muhammad Aman Khan for Respondents.
Date of hearing: 10th October, 2011.
MIAN FASIH-UL-MULK, J.---This revision petition is directed against the judgment and decree of the learned Additional District Judge, Mardan at Takht Bai dated 3-4-2002, whereby the judgment and decree passed by the Civil Judge Takht Bai dated 7-1-2002 was set aside and pre-emption suit of the petitioners was dismissed.
2. Short, but relevant facts of the case are that a sale transaction took place vide Mutation No.524 attested on 23-10-1996, whereby land measuring 5 kanals 3 marlas bearing khasra No.1230 khata No.601/950 situated at Mauza Kot Jhongara, Tehsil Takht Bai District Mardan was transferred in favour of vendees/respondents against the sale consideration of Rs.72,000. The petitioners/plaintiffs claiming superior right of pre-emption, on the basis of co-sharership, contiguity, amenities and appendages, brought Suit No.406/1 on 6-1-1997 for possession through pre-emption.
3. One Haji Itbar Khan also instituted similar Suit No.405/1 on 4-1-1997 against the defendants claiming superior right of pre-emption, on the basis of co-sharership, contiguity, amenities and appendages. Both the suits were consolidated and put to trial together.
4. The learned trial court after recording pro and contra evidence of the parties, on conclusion of trial dismissed Suit No.405/1 and decreed Suit No.406/1 filed by petitioners against payment of sale consideration of Rs.72,000.
5. Feeling aggrieved, both the parties filed appeals in the Court of Additional District Judge, Mardan at Takht Bai, who vide judgment and decree dated 3-4-2002, accepted the appeal of respondents, set aside the judgment and decree of trial court and dismissed the suit of the petitioners whereas appeal of Itbar Khan was dismissed.
6. Learned counsel for the petitioners argued that petitioners having superior right of pre-emption had filed pre-emption suit after performance of requisite talbs, which was rightly decreed by the trial court but learned appellate court has wrongly and illegally by misreading and non-reading the material evidence on record has set aside the judgment and decree of trial court and dismissed the suit of petitioners. It was argued that neither merits of case were properly appreciated nor evidence on record was considered in its true perspective rather irrelevant and extraneous matters were taken into account by the appellate court. The findings so arrived at by the appellate court are based on conjectures and surmises. It was argued that superior right of pre-emption of petitioners stand established through evidence on record and the required talbs were made strictly in accordance with law. It was concluded that the learned appellate court has erred in law and facts while reversing a well-reasoned judgment and decree of the trial court.
7. On the contrary, learned counsel for respondents raised a preliminary objection to the maintainability of this revision petition as according to him one of the pre-emptors namely Muhammad Ayub Khan died during the pendency of suit while the other reportedly died during pendency of this revision and the instant revision petition has been filed on behalf of a dead person. It was argued that learned appellate court has analyzed the evidence on record in its true perspective and passed the impugned judgment which needs no interference by this court.
8. I have heard arguments in detail of the learned counsel for the parties and gone through the record with their able assistance.
9. A perusal of record would show that Bahadur Khan and others purchased the suit property vide sale Mutation No.524 dated 23-10-1996. Plaintiffs on gaining knowledge at their 'hujra' about the sale transaction on 6-12-1996 at 12-00 noon through the informer Hazrat Usman made the jumping demand there and then in presence of Rafique son of Saif-ur-Rehman and Shad Ali son of Ayub Khan followed by notice talb-i-ishhad and filed the suit within time claiming their superior right of pre-emption on the basis of co-sharership and contiguity whereas respondents failed to prove such a qualification. Petitioners in support of their case produced DW-1 Hazrat Usman, D.W-2 Muhammad Rafiq and DW-3 Shad Ali Khan besides the examination of one of the pre-emptors namely Taj Muhammad as DW-4. DW-1 Hazrat Usman informed the pre-emptors/petitioners in presence of DW-2 Muhammad Rafiq and DW-3 Shad Ali Khan about the suit transaction, on which they immediately made talb-i-muwathibat and thereafter sent notice talb-i-ishhad through registered post A.D. to the vendees/respondents. The receipt and A.D. cards were brought on record as Exh.DW4/ 2 to Exh.DW4/13. DW-4 reiterated the contents of plaint and claimed superior right of pre-emption of petitioners and his statement remained un-shattered during the course of cross-examination. ADW-1 Shamshad son of Bahadur Khan vendee/defendant No.3 appeared for himself as well as attorney for remaining vendees and stated that the vendees approached the pre-emptors regarding sale of suit property, who showed their disinterest therefore, they had purchased the suit property through impugned sale mutation. He did not produce any evidence to show the superior rights of vendees as compared to petitioners.
10. Adverting to the preliminary objection raised by respondents that instant civil revision has been filed on behalf of one of dead person. The record reveals that after the death of Muhammad Ayub, his legal representatives were brought on record. In appeal filed by respondents Taj Muhammad and legal heirs of Muhammad Ayub were arrayed as respondents. Memo of revision would, however, show that revision petition was filed on behalf of Taj Muhammad and Muhammad Ayub sons of Muhammad Yaqoob. Learned counsel for petitioners while meeting the objection raised by other side submitted that the legal representatives of deceased Ayub Khan were already brought on record in the trial court and subsequently learned counsel for petitioners applied for bringing on record L.Rs. of deceased/pre-emptor Muhammad Ayub, which was allowed vide order dated 2-12-2010 and L.Rs. of deceased were brought on record and, as such, the said lacunae has been removed by this court. This inadvertent omission would not affect the competency and maintainability of revision petition. Learned counsel went on to say that after the Law Reforms of 1972 Rule 1 of Order XXII of C.P.C. provides that the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Needless to mention that right of pre-emption is a heritable right. In the cases reported in PLD 1981 Lahore 321 and PLD 1982 Baghdad-ul-Jadid 58, it was held that the provisions of Order XXII of the Code of Civil Procedure are applicable only to suits and appeals and not to revisions. Same view was affirmed in 1987 CLC 229. The other pre-emptor namely Taj Muhammad died during the pendency of revision petition and his legal representatives would inherit his right of pre-emption.
11. In the facts and circumstances of the case I am of the firm view that learned trial court after analyzing the evidence available on record had rightly passed decree in favour of pre-emptors, which has wrongly and illegally been set aside by the learned appellate court.
12. Consequently, this revision petition is allowed. Impugned judgment and decree of appellant court dated 3-4-2002 is set aside and that of learned Civil Judge Takht Bai dated 7-1-2002 stands restored with no order as to costs.
H.B.T./367/P Petition allowed.