1990C L C 1439 (PLP)

This regular second appeal has been invoked to set aside the judgment and decree dated 27‑5‑1978 pronounced by the learned Civil Judge Ist Class, Liaqatpur and that of the learned Addl. District Judge, Rahimyar Khan dated 6 4‑1980.

2. The facts of the instant appeal in substance are that the appellants had purchased the land in dispute measuring 70 kanals and 12 marlas situate in village Tanwari Tehsil Liaquatpur District Rahimyar Khan in consideration for a sum of Rs. 20,000 by means of a mutation. The respondents sought to pre‑empt the sale of the land in dispute on the basis of their superior right of pre‑emption on payment of Rs. 8,

000. The appellants denied the allegations made in the plaint and raised a number of other pleas which are apparent from the following issues: (1) Whether the plaintff has superior right of pre‑emption? (2) Whether the sale price was bona fide fixed and actually paid? OPD (3) Whether this Court had no jurisdiction to try this suit? OPD (3‑A) Whether at the time of the institution of the present suit, the then Civil Judge was exercising power of Civil Judge Second Class and as such he had no jurisdiction to try the present suit, if so to what effect? OPD (3‑B) If issue No. 3‑A is proved, as such the suit of plaintiff is barred by the law of limitation? OPD (4) Whether the plaintiffs have their right of pre‑emption? (5) Whether the plaint is deficient in court‑fee, if so what is the real value? (6) Whether the land in dispute was not sold to defendant No.3? OPD‑3 (7) Relief.

3. It may be noted that this appeal was filed after the amendment of section 102, C.P.C. No second appeal lay after 26‑3‑1980 i.e. after the enforcement of Ordinance X of 1980. This appeal was filed on 10‑4‑1980 and on the application of the vendees, this appeal was converted into a revision petition.

4. A half‑hearted stand was taken on behalf of the petitioners that the learned trial. Court which entertained the suit of the respondents had no jurisdiction to entertain the same and by the time Civil Judge Ist Class was posted at Liaqatpur, the suit had become time‑barred. It may be noted that the jurisdictionfa value of this suit had been fixed at Rs. 8,000 when the suit was instituted arid it was within the province of the learned Civil Judge IInd Class, to hear that suit. The suit remained pending and Mr. Muhammad Ajmal Oureshi, the learned Civil Judge Ist Class, Liaqatpur was posted and he decided the said suit. In this manner, the suit is not hit by the law of limitation.

5. The last point taken on behalf of the petitioners in this case is that the pre‑emptors had based their claim of superior right of pre‑emption on account of their being owners on the basis of oral sale. Muhammad Bakhsh v. Zia Ullah and others (1983 S C M R 988) has been referred to which lays down that a sale by mutation is pre‑emptible but a pre‑emptor cannot base his claim of ownership by virtue of an oral sale effected through mutation. In this case, the defendants have not produced any evidence in support of their contention. The copy of jamabandi for the year 1971‑72 Ex.P.4 shows that both the pre‑emptors are owners in the village. The petitioners rely on the statement of Ahmad Bakhsh, attorney of the plaintiffs who figured in the witness‑box as P.W. 4 who has admitted that the plaintiff's father had become owner by means of Mutation No.1031 attested on B 10‑8‑1963 and Mst. Jindan had also acquired proprietary rights in the village by means of mutations. But Ahmad Bakhsh had also stated that Karim Bakhsh had another land in the village which was not acquired through mutation and Mst. Jindan became an owner in the village by means of mutations at the time when the registered sale‑deed was not necessary. The vendees have not adduced any evidence to show that the land entered in the jamabandi for the year 1971‑72 belonging to the pre‑emptors is the same which was purchased through mutations. If the statement of Ahmad Bakhsh P.W. 4 is to be believed, it should be believed in its entirety and not in part. He has stated that Karim Bakhsh is owner of land other than the one effected through Mutation No. 1051 dated 10‑8‑1963 and Mst. Jindan became an owner when the registered sale‑deed was not necessary. In this manner, the vendees could not shake the plea of preferential right of pre‑emption of the pre‑emptors.

6. A revision petition under section 115, C P C succeeds:‑‑ (1) If the trial Court having jurisdiction does not exercise the same? (2) If the jurisdiction does not vest in the trial Court; but had exercised the same? (3) When an illegality or material irregularity in the exercise of its jurisdiction is committed?

7. I see no illegality or material irregularity committed by the learned lower Courts and decline to accept this revision petition. The revision stands dismissed.) I make no order as to costs. A.A./G‑330/L. Revision dismissed.