2010 PLP 1177 (MLD)

MIAN FASIH-UL-MULK, J.

By this judgment I propose to dispose of C.Rs. Nos. 589 and 590 of 2009 as common questions of law and facts are involved therein.

2. Briefly stated the facts of the case are that two pre-emption suits were filed by Saith Aftab Hussain respondent, one against Abdul Sattar Khan (petitioner in C.R. No. 589 of 2009) and another against Muhammad Zubair Khan (petitioner in C.R. No. 590/09) for possession through pre-emption of land fully described in the heading of plaints and transferred through Mutations Nos. 17807 and 17809 attested on 18-12-2007 on the basis of co-sharership and continguity. The suits proceeded and petitioners filed applications under Order VII Rule 11, C.P.C. for rejection of plaints on the ground of limitation. The learned Civil Judge-II, Abbottabad after hearing arguments vide order, dated 28-11-2008 accepted the applications and dismissed the suits. Feeling aggrieved, the respondent preferred appeals which were allowed vide impugned judgment and order, dated 15-7-2009 by the learned District Judge, Abbottabad and cases were remanded to the lower Court for proceedings in accordance with law. Feeling aggrieved, the petitioners preferred these revision petitions.

3. Learned counsel for the petitioners mainly contended that judgments and orders of learned lower appellate Court are based on misinterpretation of law on the subject and are liable to be set aside. He further argued that the learned lower appellate Court in haste remanded the cases. In support of these contentions learned counsel placed reliance on 2008 SCMR 404, 2008 SCMR 415, PLD 2003 SC 315, PLD 2006 Peshawar 151, 2007 SCMR 1830, 2001 MLD 1716 and 2005 CLC Lahore 1087.

4. On the other hand learned counsel for the respondent opposed the contentions so raised by petitioners and supported the impugned judgments. Reliance was placed on 1996 SCMR 1201 and 2005 CLC 1087.

5. I have heard learned counsel for the parties at great length and gone through the record annexed with the petitions.

6. A perusal of record would show that respondent performed Talb-i-Muwathibat on 31-10-2007 when the sale was complete and amount of consideration had already been paid. Respondent had also asserted that the mutations were kept for attestation in order to defeat his possible right of pre-emption. The respondents had instituted these suits on 10-3-2008. The only question involved in these petitions is period of limitation of 120 days for the purpose of suit to enforce the right of pre-emption.

7. Admittedly, jumping demand of Talb-i-Muwathibat was made by the respondent (plaintiff) on 31-10-2007 at 8-00 p.m. when he learnt about the sale. Although the mutation was not yet attested but he made the jumping demand as according to him the sale was complete in all respect. Notice of Talb-e-Isshad was sent on 12-11-2007 within 14 days and suits were filed on 10-3-2008 much beyond the prescribed period of 120 days w.e.f. getting information of sale but within period of limitation if the same is reckoned from the date of attestation of mutation.

8. Right of pre-emption is exercised only against a sale. Sale has been defined in section 2(d), which is reproduced below: (d) "Sale" means permanent transfer of ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba bil-iwaz or hiba-bi-shart al-iwaz. In the case of Muhammad Subhan and others v. Mir Qadam Khan and others (2001 MLD 1716) it has been held in unequivocal terms:-- "That sale before attestation of mutation or registration of deed could not be deemed to have any existence, was repelled on the ground that sale as defined means transfer of ownership in exchange for price paid or promised or part paid or part promised. Even under the Act, the expression sale means transfer of ownership of immovable 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."

9. Keeping in view the definition of sale in the Act itself and the referred precedent, the limitation would thus run from the information of oral sale and not from attestation of mutation which was not in existence at the crucial point of time.

10. Another aspect of the matter is that the pre-emptor has to take one stand. The pre-emption right being a feeble right, pre-emptor would not be allowed to blow hot and cold in the same breath. On one hand he considered sale complete and, therefore, made Talb-i-Muwathibat on gaining knowledge of sale and sent notice of Talb-i-Ishhad within the statutory period of getting such information of sale but when it comes to the third talb i.e. Talb-i-Khasoomat, he chose to file the suits not within 120 days of Talb-i-Muwathibat but after attestation of mutation.

11. In the case of Fazlur Rehman and others v. Abdul Qayyum and others reported in 1996 SCMR .1201 their Lordships observed that the sale in terms of section 31 of the N.-W.F.P. Pre-emption Act, for the purpose of limitation could be complete either from the date of attestation of sale by the revenue officer or in case of oral sale by delivery of physical possession of such land. In order to prove delivery of possession of sale it must be proved strictly as such delivery of possession is presumed to be a notice of sale to the prospective pre emptor(s).

12. The respondents filed both the pre-emption suits beyond the prescribed period of 120 days, therefore, the learned Civil Judge on acceptance of applications of petitioners rightly dismissed the suits.

13. Consequently, I allow both the revision petitions, set aside the impugned judgment and order of learned lower appellate Court, dated 15-7-2009 and dismiss the suits of respondent with no order as to costs. H.B.T./159/P Petition allowed.