P L D 1988 Peshawar 28 (PLP)

(1) Whether the plaintiff has got a cause of action? (2) Whether the suit is competent in its present form? (3) Whether the suit is properly valued for the purpose of court-fee?

4. Whether the transaction in suit is exempt from pre-emption? (5) Whether the plaintiff has got a superior right of pre-emption? (6) Whether the sum of Rs.4,000 was paid and fixed in good faith as sale consideration? (7) What is the market value of the suit land? (8) Relief. After recording evidence, as produced by the parties, the learned trial Judge decided issue No.4, against the respondent herein and held that he could not claim the aforesaid exemption and decreed the suit in favour of the petitioner herein by judgment dated 22-9-1985. Feeling aggrieved the respondent herein filed an appeal in the Court of District Judge Kohat which was accepted by judgment' dated 15-2-1986. The learned District Judge held that the appellant before him had successfully claimed exemption to the transaction in dispute and so he reversed the finding of the learned trial Judge on issue No.4 and deciding it in the affirmative dismissed the suit of the pre-emptor- plaintiff, who came up with the present revision petition.

2. The learned counsel for the petitioner has supported the revision petition by two-fold grounds; firstly, that the respondent herein had purchased the suit land from a joint Khata and he could not make a construction therein without the consent of the other co-sharers and without having some exclusive portion of the joint Khata in his possession and secondly, that in view of the provisions contained in subsection (3) of section 35 of the N.-W.F.P. Pre-emption Act, 1987 (hereinafter referred to as the new Act) the suit had not attained finality of judgment as a revision petition was pending decision in this Court, and so the suit should be dismissed as the vendee could not claim exemption to the transaction under the new Act.

3. In so far as the first point is concerned it has been admitted by the respondent herein that he had purchased land from a joint Khata and to bring home this point the learned counsel for the petitioner has referred to the case of Hayat Ali Shah v. Taj-ul-Nissa A I R 1923 Lah. 205 wherein it has been held that, "where no partition has taken place between several co-sharers, one co-sharer can maintain a suit for injunction not to build and to demolish buildings already built on land, belonging to all co-sharers jointly and alienated by another co-sharer to the defendant." The learned counsel has also relied upon the case of Ram Lal and another v. Muhammad Amir Mustafa Khan and others A I R 1925 All. 700 wherein it has been held that, "One co-sharer out of many has no right to build on what is joint land without the consent of the others, and if he does so, the others can sue for demolition of the building and for joint possession of the land". On the contrary the learned counsel for the respondent has submitted that although the respondent has purchased land from a joint Khata but the vendor was in exclusive possession of the entire area of the suit Khasra number and he had put the respondent in actual possession of the area purchased by him and that the respondent had started construction of a house over the area which had reached upto the roof level and further construction was stopped by an order of status quo issued by this Court. It shall thus, be seen that although the respondent had purchased land from a joint Khata but he obtained actual possession of the area purchased by him and the sale mutation No. 178 in his favour also clearly indicates that he had purchased the suit land for the purposes of construction of a house. Not only that but he had also started construction over the said area after purchasing the same. It shall thus, be seen that there was no hitch of restraint in the way of the respondent herein for construction of the house over the area in dispute. As such this contention of the learned counsel for the petitioner is untenable.

4. In so far as the second point is concerned, the learned counsel for the petitioner has relied on the provisions of section 35 of new Act, which for the purpose of convenience are reproduced below:- "

35. Repeal.-(1) The North-West Frontier Province Pre-emption Act, 1950 N.-W.F.P. Act XIV of 1950, is hereby repealed. (2) In the cases and appeals filed under the Law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act." The learned counsel relying on the provisions of subsection (3) of the new Act, has contended that revision is a continuation of the suit and since the proceedings had not attained finality as laid down in subsection (2) of the new Act, the suit had to be decreed in favour of the petitioner as the plea of exemption claimed by the respondent under the provisions of the repealed law did not find its place in the new Act and in support of this contention he has also relied upon a judgment of the Supreme Court in the case of Karamat Hussain and others v. Muhammad Zaman and others P L D 1987 S C 139 wherein it has been held that although revision is a discretionary jurisdiction but the mere fact that exercise of revisional jurisdiction by the High Court was discretionary, did not mean that a revision not a right but only a privilege. The learned counsel has contended, as held in this judgment, that since the revision had become a right and so the suit had not finally been disposed of and as such the provisions of the new Act would come into force and the suit had to be decreed by declining to uphold the plea of exemption as submitted by the respondent herein. I have given my anxious thought to this contention of the learned counsel but I am unable to accept his argument: No doubt by the aforesaid judgment of the Hon'ble Supreme Court a revision is to be treated as a right but once a revision is accepted for hearing then it becomes a matter between the High Court and the lower Court and not between the parties. Moreover, power under section 115, C.P.C. can be exercised, either upon application of a person aggrieved against a decision or, even suo motu by the Court and if this power has been exercised suo motu then it would be unjust to conclude that the suit had not been finally decided and on that basis to make and order adverse to the judgment made in favour of a party. Section 115 applies only to cases involving the illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not in any way affect the jurisdiction of the Court. If a Court has jurisdiction, its jurisdiction to decide one way or the other and erroneous conclusion of law or fact can be corrected in appeal, but a revision will not be competent .on such a ground. The High Court will not interfere in revision if the order is just and, proper. I am, therefore, of the confirmed opinion that a revision is not a continuation of the suit and the words "cases and appeals" used in subsections (2) and (3) of the section 35 of the new Act, do not include a revision therein and the suit in this case had attained finality when the appeal was disposed of on 15-2-1986 by the learned District Judge. If it was the intention of the legislature to include revision in the cases attaining finality, then the word "revision" could also find its place in section 35 of the new Act, but on the contrary its omission therefrom appears to be intentional. The legislature has by conscious intention not included revision in section 35 of the new Act.

5. There is also another point in support of this conclusion. The sale transaction had taken place long before the coming into force of the new Act and the right of pre-emption was claimed under the repealed law wherein the provision of exemption was contained in section 5(c) and the case had attained finality before the coming into force of the new Act on 20-4-1987, when the appeal was decided on 15-2-1986, and the new Act had no retrospective effect in so far as the cases which had attained finality were concerned. In this respect also be placed on the case of Abdul Ghaffar Khan and others v. Saghir Ahmad Aslam and others P L D 1987 Lah.

358. As such the case in hand having attained finality as provided in subsection (2) of section 35 of the new Act could not be reopened in obedience's to subsection (3) thereof.

6. There is no merit in this revision petition, which is dismissed with no order as to costs. A.A./583/P Revision dismissed.