2012 PLP 1868 (MLD)

SYED SAJJAD HASSAN SHAH, J.

The instant petition calls in question the judgment and order dated 3-3-2009 passed by learned District Judge, D.I.Khan whereby the appeal filed against the judgment and decree dated 29-1-2009 passed by learned Civil Judge-V, D.I.Khan was dismissed.

2. Briefly stated the facts of the instant case are that the petitioner-plaintiff filed a suit for possession through pre-emption against the respondents-defendants to the effect that sale Mutation No.1532 was got entered by Mustafa Karnal in favour of Rifatullah Khan and Mst. Lala Rukh, wherein an area measuring 128 kanal 07 marla was shown to have alienated for a sum of Rs.7,00,

000. The said mutation was attested on 18-7-2005 on the information of Saif-ur-Rehman that they purchased the suit property from Mustafa Kamal and to this effect a sale mutation was entered. After entry of the said mutation by Patwari Halqa on 20-7-2005, statement of Saif-ur-Rehman general attorney of the vendor was recorded. He admitted the sale transaction, and its alienation through the sale mutation, an area of 128 kanal 7 marla from Khasra Nos.352 and 151 total area measuring 140 kanal 7 marla in favour of Rifatullah Khan and Mst. Lala Rukh. The said mutation was duly signed by two witnesses Falak Sher and Malik Ahmad. The statements were recorded by Girdawar Circle as per direction of the the Revenue Officer dated 19-7-2005 being Local Commission. There after, mutation was presented for attestation in open assembly to Revenue Officer on 14-9-2005 whereupon Saif-ur-Rehman, the general attorney of the vendor made his statement that the sale transaction has been rescinded and the entry made thereupon about sale consideration amounting to Rs.7,00,000 were returned to the vendees. The petitioner- plaintiff on attaining the knowledge of sale transaction declared his intention to pre-empt the suit land on 28-7-2005. On following day i.e. 29-7-2005 issued the notices Talb-e-Ishhad to the vendees, however, the notices were not received by the respondents-defendants and eventually returned to the petitioner-plaintiff.

3. The respondents-defendants were summoned who did not appear and were placed ex parte. After recording ex parte evidence of the petitioner-plaintiff and hearing the arguments, the learned Civil Judge-V, D.I. Khan rejected the plaint under Order VII, Rule 1 C.P.C, vide judgment and order dated 29-1-2009. Aggrieved from the same, the petitioner-plaintiff filed appeal which was dismissed by learned District Judge, D.I.Khan vide order dated 3-3-2009. Hence the instant revision petition.

4. The learned counsel for the petitioner-plaintiff contended that the transaction in dispute is covered by the ingredients envisaged by the definition of sale, however, on receipt of notice, sent on 29-7-2005, the mutation was cancelled at the instance of the attorney of respondents- defendants and that too, after about 1-1/2 months of sending of notices. He further contended that the sale transaction was not rescinded but the respondents-defendants in collusion with their attorney and revenue staff, got cancelled the sale mutation just to defeat the right of the petitioner-plaintiff. He further contended that the conduct of the respondents-defendants manifestly reveals their prejudice, malice and fraudulent deprivation of the petitioner-plaintiff from exercising his lawful right with which he got equipped on completion of sale transaction.

5. Arguments heard and record perused.

6. Before embarking upon the merits of the case it would be convenient to point out the effects of the alleged cancellation of the sale mutation. The petitioner-plaintiff has fulfilled the requirements of Talb-e-Muathibat by declaration made on attaining the knowledge of sale transaction in presence of the informer at given date, time and place in the same sitting where after notices of Talb-e-Ishhad attested by two witnesses, were sent through registered cover A.D separately to both the respondents-defendants, thus the right of pre-emption with regard to sale transaction has come into existence, therefore, the petitioner-plaintiff has filed the suit for possession through pre-emption and the same was filed within the limitation, as such Talb-e-Khusumat has also been performed. The suit of the petitioner-plaintiff was legally maintainable in the said background and there is no provision of law that in such circumstances the vendees-defendants could have cancelled the sale mutation. Petitioner-plaintiff has the cause to institute the suit, the suit is proper in its form and maintainable, thus triable as it was not hit by any provision of law.

7. In the instant case, the question of sale enjoying much force. The expression "sale" has been defined in the N.-W.F.P. Pre-emption Act, 1987 which means the transfer of ownership of an immoveable property in exchange for valuable consideration and same has nothing to do with the attestation of mutation. It can be considered as effective from the date when it was entered into. Non-attestation of mutation or registration would not effect its means and objects, because the parties have entered into sale transaction, in respect of an immoveable property and received the sale consideration. The subsequent attestation of mutation or its would not destroy its validity or proprietary. In this respect, reliance placed on a case titled Muhammad Subhan and others v. Mir Qadam Khan and others (2001 MLD 1716) wherein it was observed that:-- "I have carefully considered the arguments of the learned counsel for the parties and perused the record. The argument of learned counsel for the petitioners that sale before the attestation of mutation or registration of deed cannot be deemed to have any existence goes against the very definition of sale, which means, transfer of ownership in exchange of price paid, or promised or part paid or part promised. Even under the Act the expression sale means transfer of ownership of immoveable property in exchange for valuable consideration and has thus, no nexus with the attestation of mutation or registration of deed as the same, more often than not, can be oral and thus effective from the date when it is entered into. Want of attestation of mutation or registration of deed will not prevent a sale from being a sale though later on it may be formalized or documented through the attestation of mutation or registration of deed which in fact and effect only confirms an already existing fact or a fait accompli."

8. In this view of the matter when sale transaction is materialized with all its necessary ingredients mentioned above, its subsequent cancellation to defeat the rights of prospective pre-emptor would not effect the rights of the petitioner-plaintiff to seek the possession through filing pre-emption suit.

9. It is worth mentioning that no reason has been furnished for cancellation of sale transaction which lends support to the stance of the petitioner-plaintiff that the transaction, for sale still existed. Its purported cancellation is made just to deprive the petitioner-plaintiff from his right of pre-emption. The cancellation is apparently fraudulent and illegal act on the part of respondents-defendants and the same would be ineffective on the right of petitioner-plaintiff. In such circumstances, the judgments and decrees of the learned lower Courts are against law and without any reason, thus, not maintainable.

10. For the reasons mentioned above, the revision petition is accepted, the impugned judgments and decrees of the courts below are set aside and the case is remanded to the learned trial court with the direction to proceed with the same in accordance with law and decide the same afresh on merits after affording full opportunity to both the parties. The parties are left to bear their own cost. KMZ/236/P Petition allowed.