2026 S C M R 812

 2026 S C M R 812

[Supreme Court of Pakistan]

Present: Musarrat Hilali, Shakeel Ahmed and Ishtiaq Ibrahim, JJ

ABDUL SATTAR KHAN ---Appellant

Versus

UMAR AYAR ---Respondent

Civil Appeal No. 79-P of 2016, decided on 10th June, 2025. (Against the judgment dated 21.10.2016 passed by the Peshawar

High Court, Mingora Bench (Dar-ul-Qaza), Swat in Civil Revision No.

116-M of 2014).

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

----S. 13(1)(a)---Civil Procedure Code (V of 1908), S. 115---Suit for

possession through pre-emption---Talb-i-Muwathibat---Burden of

proof---Delay between the date of mutation and knowledge of sale---

Informer not produced as witness---Effect---Production of supporting

witnesses in place of informer---Legality---Concurrent findings on issue

of Talb-i-Muwathbat---Suit was dismissed by the trial court, but was

decreed by the Appellate court---Revisional court overturned the

decision of the Appellate court while observing that Talb-i-Muwathibat

remained unproved---Validity---Informer was never produced before

the trial court throughout the proceedings without any explanation---

Omission to produce the informer through whom knowledge of the

sale was acquired was a significant shortcoming in the evidentiary

chain---Requirement of Section 13 of the KPK Pre-emption Act, 1987,

(Act) was not merely procedural but foundational for enforceability of

the right of pre-emption, which mandated that the first demand (Talb-

i-Muwathibat) be made immediately upon acquiring knowledge of the

sale and be proven through unimpeachable evidence---Appellant's

version remained uncorroborated for the most critical point that how

and when he came to know about the sale---Lapse of more than three

months between the date of mutation and the claimed knowledge

further undermined the promptness and credibility of the alleged

Talb---Without evidence of informer, appellant s version regarding

the time, place and manner of acquiring knowledge of the sale

remained uncorroborated---Supporting witnesses might have been

present at the time of the alleged declaration/demand, but in the

absence of the informer himself, the requirement of immediacy and

authenticity under Section 13 of the Act remained unproven---Non-

production of the informer may be fatal and may result in an adverse

inference being drawn against the pre-emptor---Appellate Court s

findings on the issue of Talb-i-Muwathbat were a result of misreading

of evidence, thus, were liable to be set aside---High Court, in correcting

that error, acted well within its powers under its revisional

jurisdiction---Revisional Court is fully empowered under Section 115,

C.P.C., to do so where such findings are based on misreading, non-

reading, or misinterpretation of the evidence on record---Civil Appeal

was dismissed, in circumstances.

Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491 and

Subhanuddin and others v. Pir Ghulam PLD 2015 SC 69 rel.

(b) Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of High Court---Scope---Where

findings suffer from misreading or non-reading of material evidence

or are otherwise perverse, the High Court is fully empowered under

Section 115, C.P.C., to rectify such errors. Zia ur Rehman Khan, Advocate Supreme Court for Appellant.

Alam Khan, Advocate Supreme Court for Respondent.

Date of hearing: 10th June, 2025.

JUDGMENT

MUSARRAT HILALI, J.---This direct appeal is filed against the

impugned judgment dated 21.10.2016 passed by the Peshawar High

Court, Mingora Bench (Dar-ul-Qaza), Swat in Civil Revision No. 116-

M/2014 whereby the civil revision filed by the appellant was allowed,

the judgment and decree of the appellate court dated 06.03.2014 was

set aside, and the respondent s suit for pre-emption was dismissed.

2. The appellant filed a suit for possession through pre-emption on

05.08.2010 in respect of land situated in Moza Bara Durushkhela, Swat,

bearing Khasra Nos. 776, 777, 778, and 779, which was purchased by

the respondent through sale mutation No. 2372 attested on 10.04.2010.

The learned Trial Court dismissed the suit vide judgment and decree

dated 30.09.2011 on the ground that the appellant/pre-emptor had no

superior right of pre-emption, though it found in his favour regarding

the performance of Talb-i-Muwathibat in accordance with law. On

appeal, the learned Additional District Judge reversed the findings of

the Trial Court and decreed the suit on 06.03.2014. The respondent s

revision against that decision was allowed by the High Court through

the impugned judgment dated 21.10.2016. Hence, this civil appeal.

3. We have heard the learned counsel for the parties and carefully

examined the record.

4. In a nutshell, the Trial and Appellate Court had both concurrently

held that the Talb-i-Muwathibat performed by the appellant was in

compliance with the law (Section 13 of the Khyber Pakhtunkhwa Pre-

emption Act, 1987( the Act )). Therefore, the central issue before the

High Court, and now before this Court, pertains to the performance

and validity of Talb-i-Muwathibat in compliance with the mandatory

requirement of Section 13 of the Act. The appellant, appearing as PW-

1, stated that on 25.07.2010 at around 6:00 PM he was informed by one

Umar about the sale transaction and immediately declared his

intention to pre-empt the same in the presence of two witnesses,

namely Bakht Nawab and Sher Muhammad Khan, who subsequently

appeared as PW-2 and PW-3. However, the said informer namely

Umar, was never produced before the Court nor was any explanation

given for his absence throughout the proceedings.

5. The omission to produce the person through whom knowledge of

the sale was acquired is a significant shortcoming in the evidentiary

chain. The requirement of Section 13 of the Act is not merely

procedural but foundational to the enforceability of the right of pre-

emption. It mandates that the first demand (Talb-i-Muwathibat) be

made immediately upon acquiring knowledge of the sale and be

proven through unimpeachable evidence. The appellant s version remained uncorroborated at the most critical point, how and when he

came to know' of the sale. The lapse of more than three months

between the date of mutation (10.04.2010) and the claimed knowledge

(25.07.2010) further undermines the promptness and credibility of the

alleged Talb.

6. The High Court, in setting aside the concurrent findings of the

courts below regarding Talb-i-Muwathibat, rightly invoked its

revisional jurisdiction. It is by now well settled that a revisional court

is fully empowered under Section 115 of the Code of Civil Procedure,

1908 ('the Code') to do so where such findings are based on

misreading, non-reading, or misinterpretation of the evidence on

record. In the present case, both the Trial Court and the Appellate

Court overlooked a critical deficiency: the appellant s failure to

produce the informer, namely Umar, who allegedly informed the

appellant about the sale. This omission was neither explained nor

justified. The importance of the informer s evidence cannot be

ignored, as it forms the basic foundation for the performance of Talb-i-

Muwathibat. Without his evidence, the appellant's version regarding

the time, place, and manner of acquiring knowledge of the sale

remained uncorroborated. The supporting witnesses, PW-2 and PW-3,

may have been present at the time of the alleged declaration, but in

the absence of the informer himself, the requirement of immediacy

and authenticity, as required under Section 13 of the Act, remains

unproven. This Court has consistently held that non-production of the

informer may be fatal and may result in an adverse inference being

drawn against the pre-emptor. This exactly also applies upon the

instant case. [Ref: Abdul Rehman v. Haji Ghazan Khan (2007 SCMR

1491) and Subhanuddin and others v. Pir Ghulam (PLD 2015 Supreme

Court 69)]. The Courts below fell into error by ignoring this key aspect.

Their findings on the issue of Talb-i-Muwathibat are a result of mis-

reading of evidence and, hence liable to be set aside. The High Court,

in correcting this error, acted well within its powers under the

revisional jurisdiction.

7. The second aspect requiring further consideration is whether the

High Court, in the exercise of its revisional jurisdiction, was competent

to interfere with and set-aside the concurrent findings of the two

Courts below on the issue of Talb-i-Muwathibat. The answer is in the

affirmative. Where findings suffer from misreading or non-reading of

material evidence or are otherwise perverse, the High Court is fully

empowered under section 115 of the Code to rectify such errors.

8. The High Court has rightly held that the appellant failed to

establish the statutory requirement of Talb-i-Muwathibat in the

manner required by the law. No misreading or non-reading of

evidence, or jurisdictional error, has been pointed out to warrant

interference with the impugned judgment.

9. For the foregoing reasons, we find no merit in this appeal.

Accordingly, the impugned judgment is maintained and this Civil Appeal is dismissed.

SA/A-38/SC Appeal dismissed.