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| 2026 YLR 571 Haq Shufa Pre-emption |
✦ دعویٰ شفعہ میں معمولی تضاد بھی کیس ختم کر سکتا ہے ✦
✿ پس منظرِ مقدمہ
❖ مدعا علیہان کا مؤقف
❖ اہم تضادات
⚖️ اپیل کا فیصلہ
✦ پشاور ہائی کورٹ کا فیصلہ
✦ عدالت کے اہم قانونی اصول
✦ مختصر قانونی نکتہ
Must read Judgment.
2026 Y LR 571
[Peshawar]
Before Wiqar Ahmad, J Versus
MUHAMMAD AYAZ and others--Petitioners
MUKAMMIL SHAH and others-Respondents
Civil Revision No. 241-P of 2018, decided on 30th October, 2024.
Khyber Pakhtunkhwa Pre-emption Act (X of 1987)...
----5. 13---Civil 3---Civil Procedure Code (V of 1908), S. 115-Suit for for possession poss through pre-emption---Revisional onal jurisdiction of High Court---Re-appraisal of evidence-Scope--Concurrent findings of facts by two Courts below-Suit filed by petitioner/plaintiff was dismissed by Trial Court and the judgment was maintained by Lower Appellate Court-Validity-Evidence produced by parties had rightly led two Courts to believe that there were incurable dents in the evidence of petitioner/plaintiff--High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below---High Court in exercise of revisional jurisdiction was not supposed to reach at a different conclusion on re-appraisal of evidence, particularly when there was no case of misreading or non-reading of evidence on the issue of performance of Talb-i-Muwathibat-Revision as dismissed in circumstances,
Faridullah Khan v. Irfanullah Khan 2022 SCMR 1231 and Khudaidad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and
others 2022 SCMR 933 rel.
Iltaf Samad for Petitioner.
M. Amin Khattak Lachi for Respondents.
Date of hearing: 30th October, 2024.
JUDGMENT
dismissed and j WIQAR AHMAD, J.---Instant revision petition is directed against judgment and decree of learned Additional District Judge-II, Instant revision petition is dire Takht Bhai, dated 26.1 26.1.2018 whereby appeal of petitioners and judgment and decree of the learned Civil Judge-III, Takht Bhai, dated 13.1.2016 s maintained.
2 Brief facts of the case are that plaintiff/petitioner brought a suit for possession through pre-emption against defendant/respondent in respect of property measuring 28 Kanals and 10 Marlas, situated in Mauza Qutab Garh Tehsil Takht Bhai, District Mardan, sold vide mutation No. 1637, dated 29.6.2011 for sale consideration of Rs. 10 lac, but in order to frustrate his right of pre-emption, an exaggerated sale amount had been mentioned. It is worthwhile to mention that rival pre-emptor namely Muhabbat Khan had also filed another pre-emption suit challenging same transaction, therefore, both suits were disposed of through consolidated judgment.
- The defendant contested the suit by filing written statement and on the basis of divergent pleadings of the parties, as many a 11 issues, including relief were framed where after the parties produced their evidence in support of their respective stances and the learned civil court after appreciating evidence led by the parties and hearing arguments of the learned counsel for the parties, dismissed both suits, vide impugned consolidated judgment and decree. Feeling aggrieved, petitioner and rival pre-emptor filed appeals which were also dismissed through consolidated judgment and decree dated 26.1.2018 rendered by learned Additional District Judge-II, Takht Bhai. Still feeling aggrieved, Muhammad Ayaz, (petitioner herein) has filed instant revision petition with following prayer:-
"It is, therefore, most humbly prayed that on acceptance of this revision petition, the judgments and decrees of the learned. two courts below may kindly be set aside and suit of the petitioner may graciously be decreed as prayed for. 4. Arguments heard and record perused.
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Perusal of record reveals that plaintiff/petitioner had brought a suit for pre-emption against defendant/respondent challengi challenging the suit mutation No. 1637, dated 29.6.2011 in favour of respondent Mukammil Shah. In his plaint, petitioner had asserted that he came to know about suit transaction on 31.7.2011 ( 011 (Sunday) at 5:30 p.m. in 2.m. in his Hujra situated at Akbar Khan Killay through Muhammad Ayaz in presence of Habib Rasool, Sabir Khan and Alamgir Shah and in presence of said witnesses, he announced his intention to pre-empt the suit transaction, thereby completing first mandatory condition of Talb-e-Muwathibat. Thereafter, on 1.8.2011, he sent notice (Talb-e-Ishhaad) through his counsel to defendant. The plaintiff further stated in the plaint that defendant was asked time and again to admit pre-emption right of plaintiff and hand over possession of suit property to plaintiff, but he refused fused to to acknowledge acknowledge his his right right which which denial den on the part of defendant compelled plaintiff to knock at the doors of civil court for the enforcement of his right of pre-emption.
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To establish the factum of Talabs, plaintiff produced Patwari Halq as PWI who produced suit mutation bearing No.1637, dated 29.6.2011 (Ex.PW 1/5), Muhammad Farooq. Branch Post Master Shergarh appeared as PW 2 who produced postal receipt No.920 (Ex. PW.2/1), AD Card (Ex PW 2/4)having signature of one Arif PW. Hakeem Ullah, Branch Post master appeared as PW.3 who had stated in his cross-examination that registered envelop was not received by defendant. Plaintiff Muhammad Ayaz appeared as PW 4 who reiterated the stance taken in the plaint. PW.5 Alamgir Shah was witness of both Talabs who stated in his cross-examination that when he reached Hujra of plaintiff, plaintiff and Sabir Shah were already present there and Muhammad Ayaz informer came at 5.00 p.m. Informer Muhammad Ayaz appeared as PW.6 who stated that he went to Hujra of plaintiff at 5.30 p.m. where he informed plaintiff about suit transaction. In his cross-examination, he stated that he got information about suit transaction from one Irshad son of Dost Muhammad. PW.7 Habib Rasool in cross-examination started that on the following day of Talb-e-Muwathibat i.e.1.8.2011, they came to Tehsil Takht Bhai for sending notice to defendant.
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Analysis of above discussion clearly reveals that there are not only certain contradictions in the statements of witnesses of Talabs regarding their arrival at Hujra of plaintiff but also non-examination of one Irshad who had informed Muhammad Ayaz PW.6 about suit transaction, Plaintiff Muhammad Ayaz (PW.4) stated in his cross-examination that Habib Rasool (PW.7) came to his Hujra at 5.00 p.m. whereas Habib Rasool stated in his cross-examination that he came to Hujra of Plaintiff at 4.30 p.m. and remained there for 20 to 25 minutes while, Alamgir Shah (PW.5) admitted that they remained in the Hujra for 40 to 45 minutes, which contradictions prove that first Talab Le. Talb-e-Muwathibat had not been proved by the plaintiff in accordance with law. Similarly, plaintiff has also failed in proving the complete chain of acquiring knowledge of the transaction of sale. Informer of the suit transaction while appearing before the court as PW.6 has admitted in his cross-examination that he got knowledge about suit transaction from the mouth of one Irshad son of Dost Muhammad but strangely enough said Irshad has not produced in evidence to complete chain of acquiring knowledge qua suit transaction. Reliance is placed on the judgment of the Honourable Supreme Court of Pakistan in the e of Faridullah Khan v. Irfanullah Khan reported as d as 2022-SCMR-1231. case of
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Above discussion clearly establishes that evidence produced by the parties have rightly led the two courts to believe that there were incurable dents in the plaintiff's evidence which had resulted in non-suiting the petitioner/plaintiff. Even otherwise, when two courts below have arrived at concurrent findings of facts, then this court as a revisional forum is not supposed to reach at a different conclusion on re-appraisal of the evidence, particularly when there was no case of misreading or non-reading of evidence on the issue of performance of Talb-e-Muwathibat. Reliance in this respect is placed on the judgments of the Honourable Supreme Court reported as 2022-SCMR-933 (Khudaidad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others).
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In light of what has been discussed above, instant revision petition being without any substance, stands dismissed, with no order as to costs.
MH/206/P
Revision dismissed.