P L D 1984 Peshawar 74 (PLP)

MUHAMMAD ISHAQ KHAN, J.‑This Constitutional writ petition under Article 9 of the P. C. O. is directed against the judgment and decree gassed by the Additional District Judge, Mardan dated 14‑2‑1982, whereby he accepted the revision filed by the defendant‑respondents and dismissed the suit of the plaintiff‑petitioner as time‑barred but made no order as to costs.

2. Briefly stated the facts of the case are, that Mst. Dilfroza, S. Lai Badshah, S. Nisar Badshah, S. lftikhar Shah, S. Javed fqbal, S. Pervaiz Kamal sons of Mst: Iltaf Begum daughter of Jabbar Shah and S. Jabbar Shah son of S. Mashal Shah sold their land measuring 13 Kanals 9 Marlas out of Kbasra Nos. 1406, 1412 and 1415 vide Mutation No. 3469 attested on 15‑3‑1979 to Jamsbaid Khan, Muhammad Sher Khan, Sanobar Khan sons of Saeed Khan, Jehangir Khan, Alamgir Khan, Hidayat sons of Sanobar Khan, and Sher Akbar son of kehanuddin, defendants‑respondents, for a sum of Rs. 53,800 ; that .plaintiff‑petitioner Sarwar Shah filed a suit for possession through pre‑emption on 4‑1‑1980 regarding the said land, in which the defendant‑respondents 1510 their written statements ; that after the close of the evidence of the parties it came to light that the vendee‑respondents have made some construction over the suit land, therefore, the trial Court appointed a Commissioner for the assessment of the `abadi', who inspected the spot and submitted his report on 10‑9‑1981. While preparing his report, the Commis sioner recorded the statements of Muhammad Akbar, Mian Said and Gut .Muhammad, who stated before him that they had purchased about 171, 171 marlas and 2 kanlas, respectively, froth the vendee‑respondents out of the suit land ; that after this report the plaintiff‑petitioner filed an application for impleading Muhammad Akbar, Mian Said and Gut Muhammad as a party to the suit ; that the said application was contested by the vendee respondents but the trial Court vide its order dated 5‑12‑1981 allowed the same on payment of cost of Rs. 75 ; that against this order the vendee respondents filed a revision‑petition before the learned Additional District Judge, Martian, who vide the impugned order dated 14‑2‑1982 not only set aside the order of the trial Court dated 5‑12‑1981 but also dismissed the suit of the plaintiff‑petitioner as time‑barred. Hence, the present writ petition.

3. Learned counsel for the plaintiff‑petitioner contended that the suit of the plaintiff‑ petitioner is clearly within time as against the original vendees as well as the subsequent vendees ; that the subsequent transfer by the original vendees in favour of Mian Said and Gut Muhammad was made after the institu tion of the suit. However, the transfer in favour of Muhammad Akbar was only made before the institution of the suit ; that since the sales in favour of the subsequent vendees were effected by the original vendees, therefore, Article 120 of the Limitation Act is applicable and hence the suit of the plaintiff ‑petitioner is clearly within time as against all the vendees ; that while hearing a revision‑petition from an interlocutory order of the trial Court for impleadment of the subsequent vendees to the suit of the plaintiff‑petitioner, the learned Additional District Judge had no jurisdiction in law to dismiss the suit of the plaintiff‑petitioner ; that the subsequent sales by the original vendees in favour of Muhammad Akbar, Gut Muhammad and Mian Said were the result of fraud and collusion and the learned Additional District Judge failed to take into consideration this aspect of the case. The learned counsel further argued that the lower appellate Court has disregarded every principle of law in not affording an opportunity to the plaintiff‑petitioner to prove the fraud and collusion amongst the vendees ; and that the learned Additional District Judge was also not justified in law interfering with the discretion exercised by the trial Court.

4. We have also heard the learned counsel for the vendee‑respondents and have perused the record, and we find that the arguments advanced by the learned counsel for the plaintiff‑petitioner have great force in them. The plaintiff‑petitioner filed the original suit on 4‑1‑1900. It is also on record that the vendee‑respondents made subsequent sale in favour of Muhammad Akbar in respect of 17 marlas out of the suit land on 19‑11‑1979 vide Mutation No. 3568. They further sold 17 Marlas out of the suit land to Mian Said on the basis of 'Iqrar Nama' on 20‑1‑19b

0. They also sold 2 kanlas out of the disputed land to Gul Muhammad vide registered deed dated 5‑1‑1980. As such, the only sale in favour of Muhammad Akbar was prior to the institution of the suit on 19.11‑1979 and the sales in favour of Mian Said and Gut Muhammad were after the institution of the suit by the plaintiff‑petitioner. As such, we hold that Article 120 of the Limitation Act is very much applicable to the case in hand. In this view of the matter, we rare supported by an authority reported in Sri Thakurji Maharaj and another v. Sujan Singh and others (A I R 1939 All. 158), wherein it has been laid down as under. :‑ "Limitation Act (1908), Arts. 10, 120 & 144 ‑‑ Pre=emption suit Transferee from original purchaser added as defendant after one year's limitation in suit against purchaser‑Suit against transferee is governed by either Article 120 or Article 144 but does not ‑fall under Article

10. If a purchaser under a sale‑deed in respect of which the cause of action for the suit for pre‑emption has arisen has subsequently transferred the property to another, the original cause of action for pre‑emption is not thereby affected. The subsequent transferee from the original vendee must take the transfer subject to plaintiffs' right. to pre‑empt. If therefore the suit against the original purchaser is brought within limitation under Article 10 but the subsequent transferee is afterwards impleaded as a defendant after the said period of limitation the suit against the transferee is in effect merely for a declaration and is governed by six years limitation under Article 120 or as one for possession against a person who is in possession without title and so is governed by 12 years rule of limitation under Article 144 : 31 P R 1913 and A I R 1914 Oudh 216 Rel. A L J 211 Ref." There is yet another authority on the point of limitation which supports our view and the same is reported in Abdul Majid etc. v. Barkat etc. (1980 C L C 152), and the made therein are as follows "Limitation Act (1X of 1908), Art. 120 read with Punjab Pre‑emption Act (I of 1913), S. 30‑Suit for possession by pre‑emption Limitation‑Resale made by original vendee during period of limitation of one year of first sale‑Article 120, Limitation Act, 1908, held, applicable to case." Accordingly, we hold that the suit of the plaintiff‑petitioner is governed by Article 120 of the Limitation Act and is within time as regards the original as well as subsequent vendees. '

5. As regards the powers of the lower appellate Court, we hold that the learned Additional District Judge while hearing revision‑petition from an interlocutory order of the trial Court, could not decide the fate of the whole suit. In this regard, we refer to a case reported in Syed Riaz Hussain Zaidi v: Muhammad 1qbal and another (P L D 1981 Lah. 215), wherein the following observations have been made : "Constitution of Pakistan (1973), Art. 199 read with West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 4, 10(3), 12, 13 & 15‑Powers of Controller for summoning and enforcing attendance of witnesses and compelling production of evidence‑Controller not bound in every case to follow procedure laid down, in C. P. C. Controller, while holding inquiry under any provisions of Ordinance, not obliged to frame issues arising out of pleading of parties but required to be satisfied with regard to bona fides or otherwise of landlord's claim in deciding his ejectment application on basis of material brought on record by parties without violating principle of natural justice Ejectment application asking ejectment from disputed shop for own requirement of landlord and his son‑‑Controller omitting to mention name of landlord's son in relevant issue‑Order of District Judge passed in appeal in recasting such issue‑Cannot be held to be wrong or erroneous but without jurisdiction and lawful authority‑Assumption of jurisdiction on basis of material not available on record‑Held, order thus passed being without lawful authority and amounting to abuse of process of Court liable to be set aside." In the case in band, we see that no issue on the point of limitation was framed by the trial Court, nor any such objection was raised in the written statement of the vendee‑respondents, therefore, the learned Additional District Judge was not competent and within his legal right to dismiss the suit of the plaintiff‑petitioner on the point of limitation. Our this view gets further support from a recent authority reported in Shahdev v. Lehri Khan and 2 others (P L D 1983 Lah. 46), wherein the following observations have been made :‑ "O. XLI, rule 33‑Appellate Court, powers of‑Appeal not against judgment and decree passed in suit nor suit itself being tried by District. Judge, District Judge, held, could not make any order determining ultimate fate of suit‑District Judge in appeal called upon simply to examine correctness or otherwise of trial Court allowing temporary injunction to petitioner, District Judge, held, could uphold, vacate, or modify such order, or give any direction relating thereto, but could not dismiss suit yet to be heard and decided by trial Curt."

6. It is admitted position in this case that the vendee‑respondents have in the grounds of their revision‑petition only prayed that the order of the trial Judge allowing the plaintiff‑petitioner to implead the newly vendees as party to the suit and then file an amended plant, be set aside. There is no mention in the said revision‑petition that the whole suit of the plaintiff petitioner should be decided by the Additional District Judge. Therefore, in view of above‑cited authorities, we bold that the learned Additional District Judge had acted illegally and without jurisdiction while dismissing the suit o the plaintiff‑petitioner in the course of hearing a revision‑petition from an interlocutory order of the trial Court.

7. Before parting with the case, we would like to refer to another authority reported in Taj Din v. Mst. Mahmooda Begum etc. (P L D 1982 Lah. 126), which lays down as under :‑ "Article 199‑Constitutional jurisdiction‑Mere conclusions in law or fact‑Do not furnish any ground for interference of High Court in its Constitutional jurisdiction‑Interference, however, called for where conclusion either in law or in fact shakes up very foundation of jurisdiction." As held above, the learned Additional District Judge while hearing a revision. petition against an interlocutory order of the trial Court decided the whole suit of the plaintiff-petitioner and has thus shaken up the very foundation of the jurisdiction, therefore, we would accept this writ petition, set aside the impugned order of the Additional District Judge, Mardan, dated 14‑2‑1982, and remand the case back to the trial Court for deciding it on merits after giving the parties full opportunity to represent their claim before the Court. No order as to costs. M. Y. H. Petition accepted.