Law: Khyber Pakhtunkhwa Pre-emption Act, (X of 1987)

Section: 13,28

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)--- ---Ss. 13 & 28---Talbs, performance of---Exchange mutation---Requirements---Scope---Contention of defendant was that impugned mutation was in fact "exchange mutation" and not that of sale---Trial Court decreed the suit but same was dismissed by the Appellate Court---Validity---Witnesses of plaintiff deposed that property in question was sold for consideration and had been given colour of exchange---Such statement had not been cross-examined by the defendant which would amount to admission on his part---Departure from pleadings could not be allowed unless permitted by the court through amendment---Burden to prove the genuineness of exchange mutation was on its beneficiary claiming exemption from pre-emption---Neither patwari halqa nor attesting revenue officer were examined who were important witnesses---Marginal witnesses of exchange mutation were not examined by the defendant---Mutation would not create title and once it was challenged, the burden would shift upon its beneficiary to prove the original transaction which resulted into entry and attestation of the same---No efforts were made in such regard and exchange mutation stood not proved---No evidence was produced to the effect that exchange transaction was made for better management nor same was averred in the written statement---Solitary statement of defendant with regard to "Sahoolat" would not amount to exchange for better management nor same would fulfil the requirements of "exchange mutation"---Suit property was in fact sale and same was pre-emptible---Attorney of plaintiff had reiterated the stance taken in the plaint and informer had fully supported his version---No contradiction existed with regard to performance of Talb-i-Muwathibat---Notice of Talb-i-Ishhad stood proved to the extent of its scribing, verification and delivery---Plaintiff had proved talbs in accordance with law---Appellate Court had focused upon minor discrepancies which were immaterial and could not be termed as variation in the statement---No amount was mentioned in the mutation as sale consideration and Trial Court rightly fixed the market value of the same by considering…

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