Syed ASAD HUSSAIN vs Syed GHULAM KHITAB Ss — 2023 SCMR 325 SUPREME-COURT

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Syed ASAD HUSSAIN VS Syed GHULAM KHITAB Ss.2(d), 13(1)(a) & 31---Suit for pre-emption---Talb-i-Muwathibat---Pre-emptor's knowledge of sale prior to registration of sale deed---Evidence to be led by vendee regarding pre-emptor's knowledge of sale---Whether in the present case pre-emptor delayed making demand of Talb-i-Muwathibat---Plea of vendees/appellants that subject sale deed in the present case (the sale which had been pre-empted) was executed in favour of the appellants on 12-8-2003 and the document was presented for registration to the sub-Registrar promptly, when the pre-emptor/ respondent on 3-7-2003 filed a suit for injunction against the vendor of the property, pleading that vendor should be prohibited from alienating the same to the vendees; that an injunction order was passed in that case, however, on 5.9.2003, the vendor in his written statement had brought on record the fact that the sale has already been accomplished, thus the pre-emptor was obliged under the law to make Talb-i-Muwathbat there and then, which was not so done; that the view set out by the courts below that as sale deed was registered on 4.11.2003 and therefore, TaIb-i-Muwathibat made on 9.11.2003 by the pre-emptor is valid in law, is founded upon misconception, against the facts on the record and also violative of the letter and spirit of the provisions of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987---Validity---Question of knowledge of the sale was ultimately a question of fact; it had to be determined on the basis of the evidence as led by the parties---Plea that as the sale stood disclosed in the written statement of the vendor of the property the earlier suit, the Talb-i-Muwathibat, had to be reckoned from the date thereof, which was 5.9.2003, was ultimately a question of fact---Merely because the written statement filed by the vendor was of a certain date could not mean that the knowledge of the pre-emptor must automatically, or even necessarily, be reckoned from that date or that the law raised a presumption, conclusive or otherwise, in this regard; it had to be specifically pleaded (or least proved by leading evidence on the point) that the respondent's knowledge dated to the date of the written statement or was on the basis, or in terms, thereof---Such evidence would have then rebutted the case as put forward by the pre-emptor as regards the date of his knowledge of the sale and the evidence that he led thereon (which was otherwise accepted by all three courts below)---Vendees did not lead evidence in such respect, thus, the crucial finding of fact which the vendees now urged the (Supreme) Court to make would, in effect, have to be a new finding---Indeed, the nature of such new finding would be such that it would be based (in at least important part) on surmises and conjectures---Appeal filed by vendees was dismissed with the Supreme Court expressing its reservations to the observations made in paragraph 7 of a two member bench judgment of the Supreme Court reported as Muhammad Nafeez Khan v. Gulbat Khan and others 2012 SCMR 235.

Syed ASAD HUSSAIN vs Syed GHULAM KHITAB Ss — 2023 SCMR 325 SUPREME-COURT

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