IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
Present:  
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL  
MR. JUSTICE JAMAL KHAN MANDOKHAIL 
 
 
Civil Appeal No.1018/2016 
(On appeal from the judgment dated 
22.01.2016 passed by the Peshawar 
High 
Court, 
Peshawar 
in 
C.R. 
No.235/08) 
 
Shan Muhammad alias Shany 
 
…Appellant 
 
Versus 
Said Mashal 
..Respondent  
 
 
For the appellant:  
Mr. Abdul Rehman Qadar, ASC 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
For the respondent: 
Mr. Amjad Ali, ASC 
 
 
 
Date of hearing: 
 
12.05.2022 
 
ORDER  
MAZHAR ALAM KHAN MIANKHEL, J-.  The respondent herein had 
filed a pre-emption suit against the present appellant with regard to a 
sale effected through mutation No.1310 attested on 23.12.2004. The 
suit was contested by the present appellant by filing his written 
statement wherein he through a general/evasive denial alleged that 
Talabs were not performed in accordance with law and not within the 
stipulated time besides other legal and factual objections. After a full-
fledged trial, the suit was decreed by the Civil Judge-VII, Swabi vide 
his judgment and decree dated 29.06.2007 but in appeal of the 
present appellant, the appellate court while accepting the appeal vide 
its judgment and decree dated 27.2.2008, set aside the judgment and 
decree dated 29.06.2007 of the trial court and dismissed the suit of 
C.A.1018/16 
 
 
2
the 
present 
respondent. 
The 
respondent/pre-emptor, 
feeling 
aggrieved, approached the High Court by way of civil revision and the 
learned Judge-in-Chambers vide impugned judgment and decree 
dated 22.01.2016 accepted the same by restoring the judgment and 
decree of the trial Court. The vendee-appellant, being dissatisfied, 
has questioned the same through the instant appeal.  
 
2. 
 
We have heard the learned counsel for the parties and 
have gone through the available record with their able assistance. 
The only point urged and argued by the learned counsel for the 
appellant was with regard to non-mentioning of the date of issuance 
of notice of Talb-i-Ishhad (the ‘Notice’) in the plaint and delivery of 
physical possession of the suit property prior to attestation of 
mutation which makes the plaint of respondent as barred by time. 
 
 
 The learned counsel by placing reliance on the cases of Mst. 
Saleem Akhtar Vs. Chaudhry Shauk Ahmed (2009 SCMR 673), Mst. 
Bashiran Begum Vs. Nazar Hussain and another (PLD 2008 SC 559) 
and Mian Pir Muhammad and another Vs. Faqir Muhammad through 
L.Rs. and others (PLD 2007 SC 302) submitted that the pre-emptor 
has failed to mention the date of Notice  in his plaint which in view of 
the law laid down by this Court in the above referred judgments is 
sine qua non and in absence of such date the suit of the respondent 
is liable to dismissal. On the other hand, the learned counsel for the 
respondent supported the judgments rendered by the trial Court as 
well as the High Court in favour of the respondent. 
 
3. 
 
In light of the arguments of learned counsel for the 
appellant, we have noted that though the date of Notice is not 
mentioned in the plaint but the appellant has never alleged such 
C.A.1018/16 
 
 
3
deficiency in his written statement and has simply denied the 
performance of Talabs in accordance with law within the stipulated 
time; no further details whatsoever were given in his written 
statement. The appellant, while appearing as a witness as DW-1, has 
repeated the same stance and was not specific with regard to the 
argument advanced by the learned counsel for the appellant. The 
evidence led by the respondent clearly establishes the fact that the 
Notice (Ex.PW-4/1), which bears the date of its issuance/execution, 
was tendered in evidence without any objection by the present 
appellant. The postman in this regard, who appeared as PW.1, has 
stated in categorical terms that the said Notice through a registered 
cover was delivered to the defendant. Besides the above, there is 
nothing in rebuttal by the present appellant. When confronted as to 
whether objection with regard to non-mentioning of date of issuance 
of Notice was raised in his written statement or in his grounds of 
appeals before the fora below or before this Court, his answer to such 
query was in negative. The appellant has never ever raised this 
ground during the trial or in both of his appeals. Learned counsel for 
the appellant has tried to make out a case which was never pleaded 
by him earlier and the law does not allow him to make out a new case 
by raising such a factual plea. We have gone through the entire 
evidence regarding the performance of Talabs and have found that 
the entire evidence establishes the fact that both the Talabs were 
performed by the respondent in accordance with law. It appears that 
substantial compliance of the statutory provisions has been made by 
the respondent and no prejudice has been caused to the appellant 
which is also in accordance with the law laid down by this court in 
the above referred judgments, and many other judgments on the 
point. In view of the ample evidence on the record which goes un-
C.A.1018/16 
 
 
4
rebutted, the respondent cannot be non-suited for a bonafide 
omission of non-mentioning of the date of notice in the plaint. Notice 
was available on the file along with plaint from day one. So, simply 
non-mentioning the date of issuance of notice cannot be held to non-
suit the respondent in the peculiar circumstances of the case. 
Though in the above judgments it has been held that mentioning the 
date of issuance of notice in the plaint is must but the same has not 
been elaborated as to why and what for the mentioning date in the 
plaint is must. Had in the said cases/judgments, this aspect was 
clarified then one could have considered the same in the light of 
peculiar circumstances of the case. As explained above in detail, in 
presence of entire evidence on the point, mere non-mentioning of 
date of issuance of notice would not be fatal for preemptor. The above 
judgments in the circumstances are distinguishable and have no 
bearing on the merits of the case in hand.  
 
4. 
 
As far as the second argument regarding delivery of 
possession of the suit property prior to attestation of mutation is 
concerned, there is no evidence on the record in this regard except a 
single sentence by the appellant and his vendor in their respective 
statements that after the sale transaction, physical possession of the 
property was delivered to the appellant on the second day but neither 
any entry in the daily diary of Patwari Halqa was tendered in 
evidence nor any Khasra Girdawari reflecting change of possession in 
favour of the appellant was available on the file in support of the 
argument of the learned counsel for the appellant. Mere alleging such 
an important matter in their statements, even if not cross-examined, 
cannot be termed as a sufficient evidence to hold the suit of the 
respondent as barred by time. For such an important aspect of the 
C.A.1018/16 
 
 
5
case, there should have been a detailed evidence reflecting the mode 
and manner of change of possession with specific date and time and 
the persons witnessing such change of possession. In absence of 
such evidence, it cannot be held that possession of the property was 
handed over to the appellant prior to attestation of mutation. 
 
5. 
 
The judgments and decrees rendered by the trial Court 
as well as the learned Judge-in-Chambers of the High Court would 
reflect that the same are based on proper appraisal of the entire 
evidence and we do not see any infirmity, misreading or non-reading 
of any material evidence on the record which could suggest a  
different opinion by this court. Hence this appeal, being meritless, is 
dismissed as such.  
 
 
C.M.A. No.2781/2016:  
In 
view 
of 
our 
above 
findings, this application has lost its fate and is accordingly disposed 
of.   
 
 
 
 
 
 
 Judge 
 
 
 
        Judge  
Islamabad,  
15th May, 2022 
Nasir Khan /-  
‘Approved for reporting’