2015 S C M R 222

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

DAYAM KHAN and others—Appellants

Versus

MUSLIM KHAN—Respondent

Civil Appeal No.494 of 2012, decided on 14th March, 2014.

(On appeal against the judgment dated 3-10-2011 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, in C.R. No.161 of 2011)

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

—-Ss. 13(2) & (3)—Suit for possession through pre-emption—Co-vendees—Talb-i-Muwathibat—Talb-i-Ishhad, notice of—Sending of notice to all co-vendees—Principles—Notice of Talb-i-Ishhad had to be sent to all co-vendees immediately upon gaining knowledge of their existence— Suit land, in the present case, was purchased by three co-vendees—Pre-emptor was initially unaware of the other two co-vendees, and consequently made Talb-i-Muwathibat and sent notice of Talb-i-Ishhad to only one of the co-vendees—Said co-vendee filed written statement wherein he categorically stated that purchase of suit land was jointly made with the other two vendees—Despite presence of such written statement on record, no immediate Talb-i-Muwathibat or notice of Talb-i-Ishhad was sent by pre-emptor to the other two co-vendees—Pre-emptor was required to make Talb-i-Muwathibat regarding other two co-vendees immediately when the written statement was filed or at least when the case was fixed for the next hearing thereafter—Contention of pre-emptor that he made Talb-i-Muwathibat after obtaining certified copies of written statement did not have force as Talb-i-Muwathibat had not been duly made upon gaining knowledge of the co-vendees, when written statement was filed—Requirement of Talb-i-Muwathibat with respect to other two co-vendees was not fulfilled in accordance with law—Moreover pre-emptor had not examined the postman to prove that notices of Talb-i-Ishhad had been duly served upon the other two co-vendees—Appeal was allowed accordingly with consequential dismissal of suit for pre-emption.

Malik Nazir Ahmad through his legal heirs v. Muhammad Yar 2004 SCMR 1377 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 ref.

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

—-S. 13(3)—Qanun-e-Shahadat (10 of 1984), Art. 79—Suit for possession through pre-emption—Talb-i-Ishhad, notice of—Proof—Two attesting witnesses—Only one witness of Talb-i-Ishhad was produced in evidence—Effect—Out of the three witnesses of Talb-i-Ishhad only one was examined, while the other two were allegedly out of the country—Record did not show that pre-emptor had approached the Trial Court with an application to the effect that due to non-availability of the said two witnesses, scribe of notice might be allowed to be produced in evidence—Pre-emptor had not urged any sufficient cause or furnished any plausible explanation for his failure to produce and examine the said two attesting witnesses, which amounted to violation of the mandatory provisions of proving Talb-i-Ishhad—Appeal was allowed accordingly with consequential dismissal of suit for pre-emption.

Dawa Khan through L.Rs. and others v. Muhammad Tayyab 2013 SCMR 1113 and Akbar Ali v. Muhammad Abdullah 2007 SCMR 1233 ref.

—-S. 13(3)— Qanun-e-Shahadat (10 of 1984), Art. 79—Suit for possession through pre-emption—Talb-i-Ishhad, notice of—Proof—Scribe of notice, evidence of—Scribe of notice of Talb-i-Ishhad was not to be considered as an attesting witness of the notice—Examination of scribe by the pre-emptor, in no way, could be construed to be in conformity / fulfillment of the mandatory requirement of two truthful witnesses under S. 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987.

Dawa Khan through L.Rs. and others v. Muhammad Tayyab 2013 SCMR 1113 ref.

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

—-Ss. 13(2) & (3)—Suit for possession through pre-emption—Co-vendees—Talb-i-Muwathibat—Talb-i-Ishhad, notice of—Pre-emptor making Talb-i-Muwathibat and issuing notice of Talb-i-Ishhad to only one of the co-vendees—Said Talbs could not be taken into consideration in respect of the other co-vendees.

Munawar Hussain and others v. Afaq Ahmed 2013 SCMR 721 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants.

Athar Minaullah, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 14th March, 2014.

JUDGMENT

IQBAL HAMEEDUR RAHMAN, J.—The instant appeal, with the leave of the Court, is directed against the judgment dated 3-10-2011 passed by the learned Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, in C.R. No. 161 of 2011 whereby the said revision petition, filed by the appellants, has been dismissed by holding that the learned First Appellate Court after analyzing the evidence on record in its true perspective rightly set aside the judgment and decree of trial Court and passed decree in favour of respondent.

2. The succinct facts of the case are that respondent/plaintiff, Muslim Khan, filed a pre-emption suit pre-empting the suit property situated in Jawar Darah, Matkani, on the basis of contiguity and appendages. The appellants duly contested the suit by filing written statement. Initially the trial Court entrusted the matter to Muaen Qazi for conciliation among the parties. On the basis of opinion of Muaen Qazi, the trial Court dismissed the suit on 16-12-2008. Being aggrieved of the same, the respondent preferred an appeal and the learned First Appellate Court vide its judgment dated 28-4-2009 remanded the case back for decision afresh. On remand, the trial Court after framing of issues and recording of evidence vide its judgment and decree dated 19-6-2010 dismissed the suit of the respondent. On dismissal of the suit, the respondent preferred an appeal before the learned First Appellate Court. The said appeal of the respondent was accepted and the learned First Appellate Court vide its judgment dated 1-6-2011 decreed the suit in favour of the respondent. Against the judgment of the learned First Appellate Court the appellants then approached the learned Peshawar High Court by filing a Civil Revision, which has been dismissed vide impugned judgment in the terms as stated above. Being dissatisfied, the appellants have now approached this Court through the instant appeal wherein leave was granted vide order dated 24-5-2012, which reads as under:–

” This petition for leave to appeal has arisen out of the judgment dated 3-10-2011 of the Peshawar High Court, Mingora Bench, whereby the petition filed by the petitioners was dismissed.

(2) Learned counsel appearing on behalf of the petitioners contended that when the petitioners submitted written statement on 24-9-2008 stating therein that besides petitioner No. 1 two others petitioners are also vendees, the respondent being present in the Court could not feign ignorance about the sale. Even if, the learned counsel added, it is assumed otherwise for a while, he could not feign ignorance about the sale at least on 30-9-2008 when the case was fixed for arguments, therefore, his failure to make immediate demand on the said date would call for dismissal of his suit in view of the provision contained in section 13 of the North-West Frontier Province Pre-emption Act, 1987. The learned counsel next contended that where the watercourse irrigating the property of the parties is public and not private, the pre-emptor cannot claim superior right of pre-emption on its basis. Relies on the cases of “Pir Ghulam v. Noor Zaman (1979 SCMR 360)” and “Muhammad Nawaz and others v. Gul Sher through Legal Representatives (PLD 2004 SC 493)”.

(3) Learned counsel appearing on behalf of the respondent defended the impugned judgment by submitting that there is absolutely nothing on the record to show that the respondent knew about the sale before 6-10-2008 the day he received a copy of the written statement. The learned counsel next contended that where this controversy has never been raised in any of the fora below nor an issue has been framed in this behalf, it cannot be raised for the first time before this Court in a petition for leave to appeal. The learned counsel by concluding his arguments submitted that the mere fact that watercourse irrigating the property of the parties is public would not prevent the respondent from being a participator in amenities and appendages so as to non-suit him on this ground.

(4) The points urged by the learned counsel for the petitioners not only merit reappraisal of evidence but also examination of the law cited above. We, therefore, grant leave to consider the points mentioned-above.”

Subsequently, vide order dated 18-2-2014, this Court enlarged the scope of the leave granting order in the following terms:–

” During the course of hearing, learned counsel for the appellants has pointed out that the respondent allegedly had sent a notice of Talb-i-¬Ishhad, vis-a-vis the purchase made by the two vendees namely Fazal Ghani and Muhammad Ghani, but for the proof of the said notice through two attesting witnesses, the evidence is required under Article 79 of the Qanun-e-Shahadat Order, 1984, which was not produced, because the said notice is allegedly attested by Jan Bakht, Subhan Mahmood and Dilbar Hussain, but only Jan Bakht was produced and as the responded failed to prove the notice of Talb-i-Ishhad vis-a-vis such sale, therefore the suit of pre-emption filed by the respondent is liable to be dismissed on this score alone; in this regard, he has made reference to the case of Akbar Ali v. Muhammad Abdullah (2007 SCMR 1233). It is also submitted that the respondent has not examined the postman to prove the notice of Talb-i-Ishhad and this is violative of the law laid down in the case reported as Allah Ditta through L.Rs and others v. Muhammad Anar (2013 SCMR 866). Confronted with the above, learned counsel for the respondent seeks time to prepare the same as, according to him, said points do not find mention in the leave granting order. However, he concedes that this Court while hearing an appeal can always enlarge the scope of leave granting order and obviously these points can be considered by this Court. Re-list on 25-2-2014.”

3. Mr. Zulfiqar Khalid Maluka, learned counsel for the appellants, while relying upon section 13 of N.-W.F.P. Pre-emption Act, 1987 (hereinafter to be referred as “the Act”) asserted that the respondent has not been able to fulfil the requirements of Talbs as mandated under the Act and submitted that apart from Dayam Khan, appellant No. 1, the property had been purchased jointly by Fazal Ghani and Muhammad Ghani, appellants Nos. 2 and 3, and as per the respondent he had made a jumping demand initially only against Dayam Khan. This factum had duly been submitted in the written statement filed by Dayam Khan on 24-9-2008 that there were two other vendees apart from Dayam Khan, but on filing of written statement the case was fixed for 30-9-2008 even then the jumping demand was not made. When the respondent obtained certified copy of the same on 6-10-2008, he then made Talb-e-Muwathibat and thereafter sent notices of Talb-i-Ishhad to Fazal Ghani and Muhammad Ghani, appellants Nos. 2 and 3, regarding whom an application seeking amendment of the plaint was moved on 11-10-2008 which was accordingly allowed and they were impleaded as party on 20-10-2008, but the respondent failed to prove the said notices through two attesting witnesses. Although the said notices were attested by Jehan Bakht, Subhan Mahmood and Dilbar Hussain, but only Jehan Bakht was produced as P.W.5, as such the respondent failed to prove notices of Talb-i-Ishhad vis-a-vis the sale, therefore, on account of non-compliance of mandatory provisions of section 13(2) the respondent’s suit merited dismissal. In this regard he relied upon the case of Dawa Khan through L.Rs. and others v. Muhammad Tayyab (2013 SCMR 1113). Secondly, the learned counsel asserted, that the other witnesses of Talb-i-¬Ishhad, as per the evidence of Jehan Bakht (P.W.5), had gone to Saudi Arabia so they should have been made available to prove notices of Talb-i¬-Ishhad.

4. On the other hand, Mr. Athar Minallah, learned counsel for the respondent, vehemently argued that the respondent duly proved his case in accordance with law and duly made Talb-e-Muwathibat and also notices of Talb-i-Ishhad have been proved. The respondent on gaining the knowledge applied for certified copy of the written statement and on obtaining the same, Talb-e-Muwathibat was made immediately and notices of Talb-i¬-Ishhad were prepared and sent immediately by him on 6-10-2008, therefore, the requirements were duly complied with and amendment of the plaint was also sought which was allowed accordingly. Learned counsel for the respondent further submitted that notices of Talb-i-Ishhad have duly been proved by producing one of the witnesses and the scribe, as such the requirements of Article 79 of the Qanun-e-Shahadat Order, 1984 were also fulfilled. He also submitted that when other witnesses of Talb-i-Ishhad were not available because they had proceeded abroad, then at the stage of recording of evidence the appellants have failed to take any stance in this regard and had not even put any suggestion to Jehan Bakht (P.W.5), the attorney of the respondent/plaintiff, therefore, in such circumstances the evidence of the scribe to prove notices of Talb-i-Ishhad is to be taken into consideration. Learned counsel further submitted that the learned trial Court had dismissed the suit erroneously without proper appreciation of evidence and the learned First Appellate Court vide its judgment and decree dated 1-6-2011 had rightly decreed in favour of the appellant, which had been duly considered by the learned Revisional Court while upholding the decision of the First Appellate Court and dismissing the revision petition of the appellants. In support of his arguments, he placed reliance on the cases of Mukhtar Ali alias Mumtaz Ali and others v. Mumtaz Ahmed and others (2007 SCMR 221) and Muhammad Ilyas v. Ghulam Muhammad and another (1999 SCMR 958).

5. We have heard the learned counsel for the parties and with their able assistance have gone through the judgments of the learned Courts below and have perused the material available on record.

6. That admittedly in a suit for pre-emption notices of Talb-i-Ishhad have to be given to all the co-vendees, but in the instant case notices of Talb-i-Ishhad by the respondent to Fazal Ghani and Muhammad Ghani, co–vendees/appellants Nos. 2 and 3, had been sent subsequently, as such the same had not been duly proved as per mandatory requirements of section 13(3) of the Act. Only one witness i.e., Jehan Bakht (P.W.5), was examined while other witnesses i.e., Subhan Mahmood and Dilbar Hussain, were not examined. They were stated to be out of country and in this regard there is nothing on record to show that the respondent had approached the Court with an application to the effect that due to non-availability of the said witnesses in their place the scribe may be allowed to be produced in evidence. Section 13(3) of the Act provides as under:–

“13. ………….

(3) Subject to his ability to do so, where a pre-emptor has made Talb¬-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge, whichever may be earlier, make Talib-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vender, confirming his intention to exercise the right of pre-emption:

Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-¬i-Ishhad in the presence of two truthful witnesses.”

Upon failure of the respondent to produce two attesting witnesses of Talb-i–Ishhad, as required by the above-quoted section of law, the respondent was required to produce two attesting witnesses, but in this case he only produced one witness of Talb-i-Ishhad sent to co-vendees/appellants Nos. 2 and 3, which does not fulfil the requirement of law. In this regard reliance can be placed on the cases of Dawa Khan through L.Rs. and others v. Muhammad Tayyab (2013 SCMR 1113) and Akbar Ali v. Muhammad Abdullah (2007 SCMR 1233) wherein it has been held as under respectively:–

“(9) We have heard the learned counsel for the parties and have perused the record. The provisions of section 13(3) of the Act require examination of two truthful witnesses, to prove the contents of the notice of talb-i-Ishhad, which is mandatory in nature. It is consistent view of this Court since 1995 that in order to prove a document, Article 79 of the Order of 1984, requires production of two attesting witnesses to testify the same in Court. The language of section 13(3) of the Act makes it mandatory upon the party to examine two truthful witnesses of the notice to prove talb-i-ishhad, unless it is shown that one of the witnesses is untraceable and or has died, therefore, non-production of one of the witnesses, without showing sufficient cause and or plausible explanation would be violative of this mandatory requirement of proving talb-i¬-Ishhad. The evidence produced before the trial Court for proving the talb-i-Ishhad by the respondent, therefore, was violative of section 13(3) of the Act, as admittedly only one witness to the talbs was examined. The examination of the scribe by the respondent, in no way, can be construed to be in conformity with the language of section 13(3) of the Act read with Article 79 of the Order. The scribe cannot be categorized as a truthful witness of talb-i-Ishhad. In the circumstances, we hold that the law laid down by this Court in the case of Akbar Ali on the issue of proving talb-i-Ishhad by two truthful witnesses of the notice is correct and conforms to the language of section 13(3) of the Act read with Article 79 of the Order.” (emphasis supplied).

“(8) (sic) At the very outset, it would be relevant to refer in the instant matter though the notice of Talb-i-Ishhad was attested by two marginal witnesses, namely, Muhammad Aslam and Faiz Muhammad but at trial only one marginal witness namely, Muhammad Aslam was examined as P.W.2. About non-examination of other marginal witness, namely, Faiz Muhammad, no explanation of any sort has been brought on record by the appellant. As per section 13(3) of the Act, it is mandatory that notice about Talb-i-Ishhad is to be sent in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-¬emption. Its proviso further mentions that if the facilities of post office is not available, Talb-i-Ishhad is to be made in presence of two truthful witnesses. The provisions of Qanun-e-Shahadat Order would be applicable in the instant case as the Qanun-e-Shahadat Order was promulgated in 1984 and the right of pre-emption in the instant case was claimed by the appellant on 9-7-1992. Qanun-e-Shahadat Order, 1984 prescribes the mode of examining the witnesses whereby it is mentioned that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence. This Court in the case of Hamid Qayum and 2 others v. Muhammad Azeem through Legal Heirs and another PLD 1995 SC 381, has held that if the writing or signatures is on a document which is by law required to be attested, then the execution and signature on the document can be proved only by calling in evidence the attesting witnesses of the document.”

Therefore, notices of Talb-i-Ishhad made to Fazal Ghani and Muhammad Ghani, co-vendees/appellants Nos. 2 and 3, were witnessed by three persons namely Jehan Bakht, Subhan Mahmood and Dilbar Hussain, but in evidence only Jehan Bakht (P.W.5) has been produced and examined being one of the witnesses to the said notices. Moreover, Aftab Alam, Advocate, who had prepared the notice and has been produced as P.W.6, at the most he can only be considered to be a scribe of the notice, as such he is not be considered as an attesting witness of the said notice, therefore, as such the mandatory requirement of section 13(3) of the Act is not deemed to have been fulfilled by the respondent, as it has been held in the case of Dawa Khan (supra), that “……The examination of the scribe by the respondent, in no way, can be construed to be in conformity with the language of section 13(3) of the Act read with Article 79 of the Order. The scribe cannot be categorized as a truthful witness of talb-i-ishhad. In the circumstances, we hold that the law laid down by this Court in the case of Akbar Ali on the issue of proving talb-i-ishhad by two truthful witnesses of the notice is correct and conforms to the language of section 13(3) of the Act read with Article 79 of the Order”.

7. While examining the record, we have also noticed that the respondent/plaintiff had not made any effort or took any step with regard to producing Subhan Mahmood and Dilbar Hussain, the other two attesting witnesses, nor the respondent approached the Court with an application to the effect that due to their non-availability the scribe be permitted to be produced as an attesting witness of the said notices, as such it appears that the respondent has not urged any sufficient cause or furnished any plausible explanation for his failure to produce and examine the said two attesting witnesses, which amounts to a violation of the mandatory provisions of proving Talb-i-Ishhad, provided under section 13(3) of the Act.

8. In view of the above settled principle of law, it is clear that the mandatory provisions of section 13(3) of the Act have not been complied with in its letter and spirit. Therefore, in the given facts and circumstances of the case we find that the pivotal point in the instant case has eluded the attention of the Courts below while adjudicating the pre-emption suit. It is also observed that the transaction had jointly been made by three vendees i.e., Dayam Khan, Fazal Ghani and Muhammad Ghani, appellants, but initially Talb-i-Muwathibat as well as notice of Talb-i-Ishhad has been sent only to Dayam Khan, appellant No.1, and thereafter on filing of written statement by Dayam Khan on 24-9-2008, wherein he categorically stated that the purchase was made jointly by him along with Fazal Ghani and Muhammad Ghani, no Talb-i-Muwathibat or notice of Talb-i-Ishhad had been made by the respondent immediately with regard to the said co-¬vendees. On account of the same the respondent was required to make Talb-i-Muwathibat immediately on filing of the written statement or at least when the case was fixed for hearing on 30-9-2008 and thereafter he should have immediately pronounced Talb-i-Muwathibat and then issued notices of Talb-i-Ishhad, as such the requirement of Talb-i-Muwathibat had also not been fulfilled with regard to other co-vendees/appellants Nos. 2 and 3 in accordance with law. It would also be pertinent to mention here that initially the respondent had only made Talb-i-Muwathibat as well as issued notice of Talb-i-Ishhad to Dayam Khan, appellant No. 1, as such the said Talbs made by the respondent cannot be taken into consideration in respect of other co-vendees i.e., Fazal Ghani and Muhammad Ghani, appellants Nos.2 and 3, as held by this Court in the case of Munawar Hussain and others v. Afaq Ahmed (2013 SCMR 721), wherein it has been held as under:–

“(9) So far as Talb-e-Ishhad is concerned, admittedly the service on one of the two petitioners-defendants/vendees namely Muhammad Akram was not personally effected and according to learned counsel for the respondent, it was effected on his brother and co-vendee Munawar Hussain appellant. The afore-referred service is not a service in the eyes of law. It is not the case of respondent/plaintiff either that service of notice of Talb-e-Ishhad on the said vendee was made through registered post acknowledgement due. The contention that service on the co-vendee should be presumed as service in law is not backed by any provision of law and therefore, is not tenable.”

The stance of the respondent that he made Talb-i-Muwathibat on obtaining certified copy of written statement on 6-10-2008 does not have much force as Talb-i-Muwathibat has not been duly made upon gaining knowledge. In this regard, reliance can be placed upon the case of Malik Nazir Ahmad through his legal heirs v. Muhammad Yar (2004 SCMR 1377), wherein it has been held as follows:–

“(4) ………..In view of the evidence on record the trial Court found that the petitioner failed to prove Talb-i-Muwathibat which finding of fact was upheld by the High Court in its appellate jurisdiction. Talb-i-¬Muwathibat has to be made immediately, on attaining the knowledge about the sale by the intentive pre-emptor declaring his intention to pre¬-empt the sale. If such a demand is not made or not established by cogent evidence, the subsequent demands become inefficacious.”

9. Moreover, it is also apparent that in order to prove the notices of Talb-i-Ishhad, it is to be seen whether the said notices have duly been served upon appellants Nos.2 and 3 or not, but there is nothing on record to show that the same were duly delivered to them. In this regard, the respondent has not examined the postman, thus, it is violative of the law laid down by this Court in the case of Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866), wherein it has been held as under:–

“(2) ……..As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent’s side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant’s attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two courts below.”

10. We are of the considered view that the learned High Court and First Appellate Court have failed to appreciate the mandatory provisions of law, which are essential for the determination of pre-emption suit. Even they have not taken into consideration the settled law on the subject in hand. Therefore, we set aside the judgments of the learned High Court and First Appellate Court, with a consequential dismissal of the suit of the respondent/plaintiff. Resultantly, this appeal is allowed with costs.

MWA/D-4/SC Appeal allowed.