2003 PLP 1168 (CLC)

(b) North-West Frontier Province Pre-emption Act (X of 1987)

Ss. 13 & 2(d)

Making of Talb-i-Muwathibat

Conditions

Talb-i -Muwathibat had to be made the moment the plaintiff came to know about the sale and the "sale" as defined under S.2(d) of the Act had no reference to attestation of mutation or registration deed or any deed. Taj-ul-Mulk v. Mst. Zaitoon Bibi PLD 1994 SC 356 distinguished. (c) North-West Frontier Province Pre-emption Act (X of 1987)

S. 31

Provision of S.31 of the Act deals with limitation for filing of a suit i.e. in case of attestation of mutation, registered deed or otherwise. Taj-ul-Mulk v. Mst. Zaitoon Bibi PLD 1994 SC 356 distinguished. Fazal Gul for Petitioner. Purchase of land to the extent of 24 Kanals, 15 Marlas out of Khasra Nos.2226/2146/397, 2228/2146/397, 176, 179 and 178 through Mutation No.798, attested on 24-11-1992, gave rise to two suits; one filed by Muhammad Irshad seeking possession through pre-emption and the other by Mir Zaman son of Imam Din. The two suits containing the same subject-matter were consolidated and after recording evidence of parties both the suits were dismissed by the trial Judge on 25-1-2001. Feeling aggrieved Muhammad Irshad filed appeal before the learned District Judge, Mansehra, who also dismissed the appeal on 6-11-2002, Feeling aggrieved he has filed this revision.

2. The suit was dismissed on question of Talb-i-Muwathibat, in that, both the Courts below have held that the petitioner failed to establish Talb-i-Muwathibat. Fazal Gul, learned counsel for the petitioner, assailed the findings of the Courts below on the ground that at the time of attestation of mutation his client stood up in the assembly, raised objection and declared his intention to pre-empt the sale. Realizing the difficulty created by the statement of his client he submitted that Talb-i-Muwathibat could have been made only after the attestation of mutation and he placed reliance on the case of Taj-ul-Mulk v. Mst. Zaitoon Bibi PLD 1994 SC

356. The petitioner, according to para. 2 of the plaint, made Talb-i-Muwathibat at the time of attestation of mutation in common gathering and this fact was also noted by the Revenue Officer. However, he in the witness-box gave a much different narration by saying that on 24-11-1982 (the date on which the mutation was attested) at 7-30 a.m. he was coming to mosque for offering morning prayer when he came across Habib-ur-Rehman and Jehanzeb. The latter disclosed that Mir Zaman etc. have purchased the land from Mst. Mehr uh-Nisa for a sum of Rs.20,000, which was in his (plaintiff) possession. He there and then in presence of them declared his intention to file a pre emption suit. Thereafter he came to Patwari Circle, who disclosed that the land has already been sold and mutation was to be attested on that very day. The object of mentioning date and time in the plaint is to reckon limitation and secondly, the plaintiff is to build his case regarding Talb-i-Muwathibat on the lines set up in the plaint. He cannot be permitted to deviate from the plaint which is foundation of a civil suit. The case of Taj-ul-Mulk proceeds on distinguishable facts, for in that case section 31 of the Pre-emption Act was considered for purposes of filing a suit with reference to accrual of a cause of action. Sale has been defined in the N.-W.F.P. Pre-emption Act and it has got no reference to attestation of mutation or registration deed or any deed. Similarly section 13 makes it obligatory to make Talb-i-Muwathibat the moment the plaintiff comes to know of sale. Even otherwise, according to the admission of the petitioner, as disclosed to him by Jehanzeb as well as Patwari Circle sale had been struck. Section 31 of the Pre emption Act deals with limitation for filing of a suit i.e. in case of attestation of mutation, registered deed or otherwise. The contradictions between the plaint and the evidence regarding Talb-i-Muwathibat in the instant case is fatal.

3. Finding no substance the revision is dismissed in limine alongwith C.M. M.B.A./792/P Petition dismissed.