2012 PLP 551 (CLC)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner being aggrieved of the concurrent findings of the two Courts below whereby his suit of pre-emption was dismissed by the Civil Judge-II, Takht-e-Nasrati, Karak vide his judgment and decree dated 17-12-2009 and his appeal against the same was also dismissed by Additional District Judge, Karak at Takht-e-Nasrati vide his judgment and decree dated 7-3-2011 mainly on the ground of limitation.

2. Learned counsel for the petitioner mainly contended that the transfer of suit property by way of registered deed in Karak was an intentional and mala fide act of the vendee/respondents and was in fact a disguise to adversely affect pre-emptive right of the petitioner. He further submitted that no notice under section 32 of N.-W.F.P. Pre-emption Act was given by the Sub-Registrar, so in the circumstances, bar of limitation of 120 days as provided in section 31 of the Act would start from the date of knowledge of the pre-emptor and as such the findings of the two Courts below being against the law are not maintainable. In support of his submissions, the learned counsel placed reliance on Walid Dad v. Gul Bab Khan (2005 MLD 1668).

3. As against that, the learned counsel for the respondents, submitted that the law on the subject is very much clear and as per section 31 of the N.-W.F.P. Pre-emption Act, the limitation against a pre-emptor would start running from the date of registration of the sale-deed which is 9-9-2002 and as such filing of his suit was hopelessly time-barred and the two Courts below have based their findings in accordance with law. He further contended that at the time of registration of sale-deed in favour of the respondent, there was no Sub-Registrar working in Tehsil Takht-e-Nasrati and the only Sub-Registrar available in the area was Sub-Registrar of Karak so there was no mala fide and bad intention of the respondent to conceal the sale from the pre-emptor. As registration of a deed is notice to public at large, so the pre-emptor was required to file his pre-emption suit within the stipulated time as provided in section 31 of the Act ibid He further submitted that issuance of notice under section 32 of the Act ibid is directory in nature and failure to give notice will have no penal consequences and thereby placed reliance on Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305.

4. Learned counsel for the parties were heard and record of the case was perused.

5. Before discussing the merits of the case, it seems appropriate to reproduce the relevant provisions of law:

"

31. Limitation.

The period of limitation for a suit to enforce a right of pre-emption under this Act shall be [one hundred and twenty days] from the date

(a) of the registration of the sale-deed; or (b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; Or (c) one which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or (d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c).

32. Notice.

(1) The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation. (2) The notice under subsection (1) shall be deemed sufficiently given if it be stuck up on the main entrance of a mosque and on any other public place of the village, city or place where the property is situated: Provided that if the property is situated in a city, the notice shall also be given through a newspaper having large circulation in such city (3) The charges for the notice under subsection (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration or attestation of mutation." The perusal of the above stated provisions of law would make it clear that for the purpose of computation of period of limitation, the time prescribed would start running from the date of registration of the sale-deed and similarly the issuance of notice under section 32 of the Act by the officials attesting the mutation or registering the sale-deed would make it clear that the same is directory in nature and not mandatory provision of law having some penal consequences for its non-compliance. In the case of Maulana Nur-ul-Haq (supra), their lordships while considering this aspect of notice under section 32 of the Act ibid had very rightly observed:

"There is yet another aspect of the matter to which it is necessary to refer to section 32 of the Act appears to be mandatory, in view of the expression 'shall' used therein, but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is, mandatory or directory and such determination by and large depends upon the intention of legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory."

6. The pre-emptor/petitioner instituted the present suit for pre-emption by referring to Mutation No.5090 attested on 14-4-2003 whereas the sale in question was effected through a registered deed dated 9-9-2002 and this very sale-deed was incorporated in Revenue Record through above said Mutation No.5090. The Reference of said registered deed has also been given in the above stated mutation copy of which is Exh.P.W.1/3 and the said mutation was attested on the basis of transaction embodied in the said registered Deed No.12 dated 9-9-2002. So, in the circumstances, the date to be considered for computation of period of limitation would be the date of registration of sale-deed i.e. 9-9-2002 and not date of attestation of mutation in question i.e. 14-4-2003. It is a settled provision of law that the effect of registered deed would be a notice to public-at-large and on this analogy, law has also provided the start of limitation from the date of registration of the sale-deed. So, in this view of the matter, a pre-emptor was required to file his suit for pre-emption within 120 days of the registration of sale-deed and not from the date of attestation of mutation. In the Maulana Nur-ul-Haq's case (supra), their lordships have also settled this controversy in the following terms:-- "The next point for determination relates to the date from which the period of limitation for a suit to enforce a right of pre-emption arising from a registered sale-deed is to be computed. The explicit and mandatory provisions of section 31 of the Act leave no room for doubt that in case of a sale effected through a registered sale-deed the period of one hundred and twenty days shall be computed from the date of registration of the sale-deed. The contention that if the Registrar fails to issue public notice envisaged by the mandatory provisions of section 32 of the Act the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived. Such a provision is neither contained in section 31 of the Act nor can be read into it in view of settled law that Court cannot supply 'casus omissus'. A comparative study of sections 31 and 32 of the Act would make it manifest that the provision with regard to issuance of public notice by the Registrar contained in section 32 has no nexus with the period of limitation prescribed by section 31 for filing a pre-emption suit in respect of a sale transaction effected through a registered sale-deed and is meant to provide an extra source of knowledge for making Talb-i-Muwathibat and an alternate timeframe for making Talb-i-Ishhad in accordance with subsection (3) of section 13 of the Act."

7. The argument of learned counsel for the petitioner regarding mala fide and bad intention of the vendee would have surely a great weight had there been a Sub-Registrar working in Sub-Division at Takht-e-Nasrati at the relevant time when impugned sale was effected. Though the learned counsel for the respondent has submitted that no Sub- Registrar was working there at the time of registration of sale-deed but there is nothing on the record in this regard and this argument of the learned counsel for the petitioner appears to be an afterthought as no such allegations were made in the plaint or grounds of appeal. Under the settled law, a party cannot build up a case on the grounds which are not raised in the pleadings. Any such evidence too, cannot be considered in favour of the party. However, for dispensation of justice between the parties, it was confirmed by this Court from the office of DCO Karak who accordingly informed that Sub-Registrar Takht-e-Nasrati is working there since 17-11-2008. So, the said argument if at all considered would have no force in it.

8. For what has been discussed above, the findings of the two Courts below are in accordance with law and call for no interference. Hence, this revision petition is dismissed. H.B.T./328/P Petition dismissed.