2014 PLP 196 (YLR)

SYED AFSAR SHAH, J.

This civil revision calls in question the order dated 13-6-2012, passed by learned Additional District Judge-II, Bannu whereby the order dated 7-3-2012, of the learned Civil Judge-XI, Bannu was maintained and the Appeal bearing No.52/13 of 2012, filed by petitioner/pre-emptor was dismissed.

2. Briefly stated facts of the case are that on the basis of Mutation No. 1961, land measuring 4 kanals, 13 marlas bearing Khasra Nos. 2042/1 and 2043, situated in the local limits of Moza Shjahbaz Azmat Khel, was purchased by Hamed Iqbal for an ostensible amount of Rs.7,00,

000. The sale was pre-empted by Sir Iqbal Khan claiming his superior rights of pre-emption on all the grounds allowed by law and giving the sale consideration as sum of Rs.30,000 or whatever is fixed by the court. When summoned by the learned trial Court vendee/ defendant moved an application for dismissal of the suit under Order VII Rule 11 of the Code of Civil Procedure, 1908, on the grounds that it is barred by law; that the pre-emptor has failed to deposit 1/3rd of the pre-emption amount, as directed by the Court, within time and that the impugned transaction has been cancelled vide Iqrarnama dated 29-2-2011 with adding factor of informing the revenue authorities regarding cancellation of impugned mutation. The application thus given was vehemently resisted by the plaintiff/pre-emptor by submitting replication asserting therein that the application being premature is not maintainable for the law always favour to make resolution of the disputes on merit. On 7-3-2012, the learned trial Court by allowing the application dismissed the suit on the ground that it is time-barred. Thereafter, the pre-emptor took the matter to the Court of learned Additional District Judge-II, Bannu, but with no premium and hence this revision petition.

3. Arguments heard and record perused.

4. While going through the impugned order one could reach to the safe conclusion that both the lower Courts have non-suited the pre-emptor on the ground that the impugned mutation is dated 17-2-2011 and as against that the suit has been filed on 24-6-2011, beyond the period of limitation, which is 120 days and accordingly, while adhering to Order VII Rule 11 Clause (d), C.P.C., the suit was dismissed. Here, it is pertinent to note that both the Courts below have not attended the remaining two grounds, taken by the vendee/petitioner in his application and which are failure of deposit of 1/3rd of the pre-emption amount by the pre-emptor within time and cancellation/revocation of the impugned transaction.

5. Copy of Jamabandi for the year 2005-2006, pertaining to the suit khasra numbers, is available on record and it appears from its column of remarks that Mutation No. 1961 has been entered on 17-2-2011. It is further evident from the copy of Jamabandi, referred to above, that statements of some of the vendors is stated to have been recorded on 24-2-2011. Considering the date of entry of mutation, which is 17-2-2011, as final order coupled with the filing of the suit by pre-emptor, on 26-6-2011, he was non-suited on the ground of limitation. In the circumstances, the moot question which falls for determination before this Court is, as to whether the two courts below were justified in considering the entry date of the impugned mutation as final order or otherwise. According to section 31 of the N.-W.F.P. Pre-emption Act, 1987, which deals with the period of limitation for filing of pre-emption suit:-- "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) on 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)." The plain reading of the above quoted section would show that in a suit of pre-emption limitation has to be computed from the date of registration of the sale deed or attestation of mutation or taking over physical possession of the land in dispute by the vendee or of the knowledge of the pre-emptor, if the transaction is not covered under the paragraphs (a), (b) and (c). So far as, the record appended with the petition is concerned, there is nothing in the same, which could show about attestation of the impugned mutation. No doubt, the statement of some of the vendors is stated to have been recorded on 24-2-2011 and reference of which, as stated earlier, has also been given in the column of remarks of the Jamabandi, but in any case, neither the entry of mutation nor the recording of statements of some of the vendors, is sufficient to close the proceedings of sale, which require the attestation by the Revenue Officers and that too is in the form of an order. In fact, the order dated 17-2-2011, recorded on the suit mutation is not final, as the same is yet to be followed by another order and which is the attestation by the Revenue Officer. Similarly the statement of some of the vendors, that they have sold the land is not enough to close the process. Needless to say that in the present case, there are so many vendors of the impugned transaction, and that out of them only three have got recorded their statements. In the attending circumstances of the case, by computing the period of limitation from the date of entry of the suit mutation, both the courts below have committed illegality and hence, impugned orders handed down on this point stands set-aside. In this respect wisdom is also derived from a case "Gharib Shah and others v. Ramzan Gul" (PLD 1984 SC 188).

6. As stated earlier, in the present case besides the plea of limitation, the vendee/respondent has also urged the failure of deposit of 1/3rd of the pre-emption amount by the pre-emptor, within time and also revocation of the impugned transaction, vide Iqrarnama dated 29-2-2011, but none of the point has been attended by the courts below, which in the circumstances, ought to have been dealt with properly.

7. In view of above, the revision petition is accepted, the impugned orders of both the courts below are set-aside and the case is remitted back to the learned trial Court with the direction to see that the sale as defined in section 5 of the N.-W.F.P. Pre-emption Act, 1987 has been completed and if the trial Court reach to the conclusion that the sale as defined in section 5 of the Act, ibid has been completed, then it shall look into the deposit of 1/3rd of the pre-emption amount by the pre-emptor, as directed by the Court within time, because by now it is obligatory for the courts to dismiss the suit on failure of pre-emptor to deposit 1/3rd of the sale consideration. Again it is for the trial Court to see as to whether the cancellation of impugned mutation vide Iqrarnama dated 29-2-2011, as alleged by the vendee/respondent, is made just to deprive the pre-emptor from his right of pre-emption or is based on bona fide. Parties present in the Court are directed to appear before the trial Court on 30-9-2013, before which date record be sent there. No order as to costs. AG/527/P Revision accepted.