P L D 2011 Peshawar 98 (PLP)

MUHAMMAD SAFDAR KHAN SIKANDRI, J.

The instant civil revision moved under section 115, C.P.C. by Muhammad Ramzan plaintiff-petitioner is directed against the judgment and decree dated 6-3-2009 passed by learned District Judge, D.I. Khan whereby the appeal filed by the plaintiff-petitioner against the order dated 31-1-2009 passed by Civil Judge-II, D.I. Khan rejecting the plaint of the plaintiff-petitioner under Order VII, Rule 11, C.P.C., was dismissed.

2. The brief facts giving rise to the instant revision petition are to the effect that the plaintiff-petitioner brought a suit against Chaudhry Sirajuddin defendant-respondent for possession through pre-emption in respect of land measuring 2-1/2 marlas in Khata No.560 khasra. No.679 detailed in the heading of the plaint. It was alleged that the plaintiff-petitioner got knowledge of the suit transaction through Muhammad Nadeem on 23-5-2008 at. 11 a.m. his Baithak situated in Basti Kaneranwali and immediately made declaration with intention to pre-empt the transaction and thereafter sent notice of Talb-e-Ishhad to the defendant-respondent duly attested by witnesses.

3. Thereafter, the plaintiff-petitioner submitted an application for amendment in the plaint which was contested by the defendant-respondent. The defendant-respondent also submitted an application for rejection of the plaint under Order VII, Rule 11, C.P.C. The learned Civil Judge-II, D.I. Khan after hearing arguments of counsel for the parties, rejected the plaint of the plaintiff-petitioner under Order VII, Rule 11, C.P.C. and declared his application for impleadment as infructuous vide order dated 31-1-2009.

4. Having felt aggrieved from the impugned order 31-1-2009 the plaintiff-petitioner filed appeal in the Court of District Judge, D.I. Khan which was dismissed vide order dated 6-3-2009 and hence, the instant revision petition by plaintiff-petitioner Muhammad Ramzan.

5. Learned counsel for the plaintiff-petitioner contended that suit of the petitioner is maintainable on the strength of his superior right of pre-emption as well as performance of requisite Talbs under section 13 of the N.-W.F.P. Pre-emption Act, 1987, therefore, on acceptance of the revision petition, a chance be provided to the pre-emptor to establish his case against the defendant-respondent. He urged that the petitioner gained knowledge about the subsequent development regarding the transfer of the suit property by the defendant-respondent to Muhammad Ramzan and then to Muhammad Hanif during pendency of the suit, therefore, there is no alternative with the petitioner except to bring an application for the impleadment of subsequent vendees as defendants along with the earlier defendant-respondent namely Chaudhry Sirajuddin who purchased the land through Mutation No. 10543 dated 19-3-2008.

6. On the contrary, counsel for the respondent vehemently argued that Muhammad Ramzan and Muhammad Hanif are the subsequent vendees of the suit property, therefore, at present, the earlier vendee is no more the owner or in possession of the suit property and the suit for preemption is not maintainable and the petitioner has rightly been non-suited while dismissing his plaint by the trial Court under Order VII, Rule 11, C.P.C. duly upheld by the appellate Court. Learned counsel for the respondent placed reliance on 2007 SCMR 741 and 2004 SCMR 1270.

7. Viewing the arguments and going through the record, it is clearly indicated that the suit property measuring 2-1/2 marlas was purchased by the vendee-defendant Chaudhry Sirajuddin through Mutation No.10543 dated 19-3-2008 and in view of Para-3 of the plaint, the plaintiff-pre-emptor came to know about the sale transaction through Muhammad Nadeem on 23-5-2008 at 11 a.m. in his Baithak situated in Basti Kaneranwali and established Talb-e-Muwathibat there and then and thereafter also fulfilled the necessary ingredients of Talb-e-Ishhad by giving notice to the vendee-defendant duly attested by witnesses Muhammad Nadeem and Fazal Ellahi and brought the suit on 1-7-2008. It is pertinent to mention that subsequent transfer was made through registered deed dated 31-3-2008 in favour of Muhammad Hanif (subsequent. vendee), therefore, it is mandatory for the plaintiff-pre emptor to seek the right of pre-emption against the subsequent vendee, however, the pre-emptor failed to fulfill the mandatory requirements envisaged under section 13 of the N.-W.F.P. Pre-emption Act, 1987 in spite of the fact that he had the ample time at his disposal to fulfil the requirements of section 13 against the subsequent vendee whereas he cannot claim the right of pre-emption by availing the opportunity to implead them as defendants in the garb of earlier requirements exercised against the earlier vendee for the reason that no suit was present against the earlier vendee at the time of subsequent transaction and hence, the doctrine of dispendens is not attracted to the instant suit. In the titled case of Abdul Yameen Khan, v. Ashrat Ali Khan and others (2004 SCMR 1270) it was held that:-- "Once pre-emption suit stands instituted, vendee would be prohibited from entering into sale or re-sale of disputed property, provisions of section 52 Transfer of Property Act, 1882 would be attracted only, when lis was pending adjudication, further sale by vendee prior to institution of pre-emption suit could not be brought within the four corners of principle of lispendens, such further sale would be a new transaction altogether and pre-emptor, if interested in pre-empting such sale, would have to file a suit against the latest sale, but not against the previous one." In view of the above quoted verdict and legal proposition, I have been led to the conclusion that the subsequent transfer reveals that the property in question has been transferred to subsequent vendee, therefore, the plaintiff will seek the right of pre-emption while challenging the same transaction either through separate suit for pre-emption and not by making the subsequent vendee to be impleaded as party which will not serve the purpose as the requisite Talbs envisaged under section 13 of the N.-W.F.P. Pre-emption Act, 1987 have not been complied with subsequently in appropriate manner. The subsequent sale was made even before performance of Talb-e-Ishhad. The earlier vendee-defendant remained no more owner of the suit property, therefore, the application under Order VII Rule 11, C.P.C. has rightly been accepted while non-suiting the plaintiff-pre-emptor, and has correctly dismissed the application for impleadment of subsequent vendee being the Talbs have not been fulfilled after the attestation of subsequent registered deed and before institution of the suit and his impleadment as defendant would serve no purpose and hence, I see no illegality or material irregularity or jurisdictional error in the orders of trial Court as well as the appellate Court and hence, the revision petition being without substance is hereby dismissed. S.A.K./3/P Petition dismissed.