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 28thOctober, 2011.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)—

—-S.13—Making of Talbs—Plaintiffs claimingsuperior right of pre-emption on the basis of co-sharership, contiguity,amenities and appendages, filed suit for pre-emption—Suit was decreed by theTrial Court, but on appeal, Appellate Court below set aside judgment and decreeof the Trial Court and dismissed the suits of theplaintiffs—Validity—Plaintiffs on gaining knowledge about the saletransaction of suit property in favour of the defendants/vendees, made thejumping demand there and then followed by notice of Talb-e-Ishhad; and filedsuit within time claiming their superior right of pre-emption—Plaintiffsclaimed superior right of pre-emption in respect of suit property on the basisof co-sharership and contiguity, whereas the defendants/vendees had failed toprove such qualifications—Trial Court after analyzing the evidence availableon record had rightly passed decree in favour of pre-emptors, which had wronglyand illegally been set aside by the Appellate Court below—Impugned judgmentand decree of Appellate Court was set aside and that of Trial Court stoodrestored, in circumstances.

PLD 1981 Lah. 321; PLD 1982 Baghdad-ul-Jadid 58 and1987 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 revisionpetition is directed against the judgment and decree of the learned AdditionalDistrict Judge, Mardan at Takht Bai dated 3-4-2002, whereby the judgment anddecree passed by the Civil Judge Takht Bai dated 7-1-2002 was set aside andpre-emption suit of the petitioners was dismissed.

2. Short,but relevant facts of the case are that a sale transaction took place videMutation No.524 attested on 23-10-1996, whereby land measuring 5 kanals 3marlas bearing khasra No.1230 khata No.601/950 situated at Mauza Kot Jhongara,Tehsil Takht Bai District Mardan was transferred in favour ofvendees/respondents against the sale consideration of Rs.72,000. Thepetitioners/plaintiffs claiming superior right of pre-emption, on the basis ofco-sharership, contiguity, amenities and appendages, brought Suit No.406/1 on6-1-1997 for possession through pre-emption.

3. One Haji Itbar Khan also institutedsimilar Suit No.405/1 on 4-1-1997 against the defendants claimingsuperior right of pre-emption, on the basis of co-sharership, contiguity,amenities and appendages. Both the suits were consolidated and put to trialtogether.

4. Thelearned trial court after recording pro and contra evidence of the parties, onconclusion of trial dismissed Suit No.405/1 and decreed Suit No.406/1 filed bypetitioners against payment of sale consideration of Rs.72,000.

5. Feelingaggrieved, both the parties filed appeals in the Court of Additional DistrictJudge, 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 trialcourt and dismissed the suit of the petitioners whereas appeal of Itbar Khanwas dismissed.

6. Learnedcounsel for the petitioners argued that petitioners having superior right ofpre-emption had filed pre-emption suit after performance of requisite talbs,which was rightly decreed by the trial court but learned appellate court haswrongly and illegally by misreading and non-reading the material evidence onrecord has set aside the judgment and decree of trial court and dismissed thesuit of petitioners. It was argued that neither merits of case were properlyappreciated nor evidence on record was considered in its true perspectiverather irrelevant and extraneous matters were taken into account by theappellate court. The findings so arrived at by the appellate court are based onconjectures and surmises. It was argued that superior right of pre-emption ofpetitioners stand established through evidence on record and the required talbswere made strictly in accordance with law. It was concluded that the learnedappellate court has erred in law and facts while reversing a well-reasonedjudgment and decree of the trial court.

7. Onthe contrary, learned counsel for respondents raised a preliminary objection tothe maintainability of this revision petition as according to him one of thepre-emptors namely Muhammad Ayub Khan died during the pendency of suit whilethe other reportedly died during pendency of this revision and the instantrevision petition has been filed on behalf of a dead person. It was argued thatlearned appellate court has analyzed the evidence on record in its trueperspective and passed the impugned judgment which needs no interference by thiscourt.

8. Ihave heard arguments in detail of the learned counsel for the parties and gonethrough the record with their able assistance.

9. Aperusal of record would show that Bahadur Khan and others purchased the suitproperty vide sale Mutation No.524 dated 23-10-1996. Plaintiffs on gainingknowledge at their ‘hujra’ about the sale transaction on 6-12-1996 at 12-00noon through the informer Hazrat Usman made the jumping demand there and thenin presence of Rafique son of Saif-ur-Rehman and Shad Ali son of Ayub Khanfollowed by notice talb-i-ishhad and filed the suit within time claiming theirsuperior right of pre-emption on the basis of co-sharership and contiguitywhereas respondents failed to prove such a qualification. Petitioners insupport of their case produced DW-1Hazrat Usman, D.W-2 Muhammad Rafiq andDW-3 Shad Ali Khan besides the examination of one of the pre-emptors namely TajMuhammad as DW-4. DW-1 Hazrat Usman informed the pre-emptors/petitioners inpresence of DW-2 Muhammad Rafiq and DW-3Shad Ali Khan about the suit transaction, on which they immediately madetalb-i-muwathibat and thereafter sent notice talb-i-ishhad through registeredpost A.D. to the vendees/respondents. The receipt and A.D. cards were broughton record as Exh.DW4/ 2 to Exh.DW4/13. DW-4 reiterated the contents of plaintand claimed superior right of pre-emption of petitioners and his statementremained un-shattered during the course of cross-examination. ADW-1 Shamshadson of Bahadur Khan vendee/defendant No.3 appeared for himself as well asattorney for remaining vendees and stated that the vendees approached thepre-emptors regarding sale of suit property, who showed their disinteresttherefore, they had purchased the suit property through impugned sale mutation.He did not produce any evidence to show the superior rights of vendees ascompared to petitioners.

10. Advertingto the preliminary objection raised by respondents that instant civil revisionhas been filed on behalf of one of dead person. The record reveals that afterthe death of Muhammad Ayub, his legal representatives were brought on record.In appeal filed by respondents Taj Muhammad and legal heirs of Muhammad Ayubwere arrayed as respondents. Memo of revision would, however, show thatrevision petition was filed on behalf of Taj Muhammad and Muhammad Ayub sons ofMuhammad Yaqoob. Learned counsel for petitioners while meeting the objectionraised by other side submitted that the legal representatives of deceased AyubKhan were already brought on record in the trial court and subsequently learnedcounsel for petitioners applied for bringing on record L.Rs. ofdeceased/pre-emptor Muhammad Ayub, which was allowed vide order dated 2-12-2010and L.Rs. of deceased were brought on record and, as such, the said lacunae hasbeen removed by this court. This inadvertent omission would not affect thecompetency and maintainability of revision petition. Learned counsel went on tosay that after the Law Reforms of 1972 Rule 1 of Order XXII of C.P.C. providesthat the death of plaintiff or defendant shall not cause the suit to abate ifthe right to sue survives. Needless to mention that right of pre-emption is aheritable right. In the cases reported in PLD 1981 Lahore 321 and PLD 1982Baghdad-ul-Jadid 58, it was held that the provisions of Order XXII of the Codeof Civil Procedure are applicable only to suits and appeals and not torevisions. Same view was affirmed in 1987 CLC 229. The other pre-emptor namelyTaj Muhammad died during the pendency of revision petition and his legalrepresentatives would inherit his right of pre-emption.

11. In thefacts and circumstances of the case I am of the firm view that learned trialcourt after analyzing the evidence available on record had rightly passeddecree in favour of pre-emptors, which has wrongly and illegally been set asideby the learned appellate court.

12. Consequently,this revision petition is allowed. Impugned judgment and decree of appellantcourt dated 3-4-2002 is set aside and that of learned Civil Judge Takht Baidated 7-1-2002 stands restored with no order as to costs.

H.B.T./367/P Petitionallowed.