Law:

Section:

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)--- ----Ss. 5 & 13---Pre-emption suit---Alienation of land through gift deed to avoid pre-emption---Burden of proof---Scope---Plaintiff filed suit against defendants regarding property which was gifted away to the latter by donor---Plaintiff alleged in his suit that transaction was sale in disguise of gift which was purported to damage his pre-emption right--- All witnesses produced by plaintiff along with his own deposition did not mention payment of consideration ---Statement of witness produced in defence categorically affirmed the transaction as gift which was not assailed in cross-examination---Trial Court dismissed the suit on ground that plaintiff had failed to establish his claim that transaction was not a gift but a sale and he had also failed to establish performance of Talbs---Appellate court affirmed the finding of Trial Court---Validity---To prove a gift to be a sale, plaintiff had to satisfy judicial conscience of court through cogent and convincing evidence---Statement of defendant not questioned in cross examination would also be deemed to be correct---Plaintiff had challenged gift on basis of circumstances presumptive in nature but to prove the same plaintiff did not make any effort---Mere assertion of plaintiff in plaint could not shift burden to defendant---Gift was to be considered as genuine even if made to avoid pre-emption because a device to avoid pre-emption was permissible provided it was not a disguise. Muhammad Zaheer Ahmad v. Tariq Mehmood and another 2007 SCMR 1275 rel. (b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)--- ----S. 13---Talbs, performance of---Different dates of performance---Material contradiction---Informer, evidence of---Pleadings before court and informer produced by plaintiff mentioned different dates of performance of Talb-e-Muwathibat and Talb-e-Ishad---Effect---Such contradiction being a material one was sufficient to disentitle preemptor to exercise of right of pre-emption. (c) Civil Procedure Code (V of 1908)--- ----S. 115---Revisional Jurisdiction of High Court---Scope---Concurrent findings of courts below---High Court, in revisional jurisdiction could…

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