1990 PLP 1848 (CLC)

Date of hearing: 20th May, 1990. This Civil revision is directed against the order of remand passed by the learned District Judge, Bannu, dated 9‑7‑1988.

2. Facts of the case are that one Begu Khan was owner of the disputed land. On the basis of a consent decree dated 2‑2‑1973 passed by the learned Senior Civil Judge, Bannu, Mutation No.2402 was attested on 9‑12‑1978, whereafter Begu Khan transferred the suit land to Sheikh A7am (since dead and represented by the respondents herein). Mir Abbas Khan, plaintiff‑petitioner herein, instituted a suit in the Court of Civil Judge, Lakki, on 8‑12‑1979, for possession by pre‑emption of the land aforesaid on payment of Rs.800 at which rate he valued its price. The superior right of pre‑emption was claimed by the petitioner on the basis of his co‑sharership in the Khata, participation in the amenities and appendages in the suit land and contiguity of the pre‑emptor's land to the land in dispute. The vendees/respondents resisted the suit on many grounds, both factual and legal. It was averred in the written statement that the predecessor‑in‑interest of the respondents had purchased the disputed land in 1965, long before the consent decree dated 2‑2‑1973, and had been in its possession which transaction did not find way in the Revenue Record, therefore, he filed a suit for declaration of his title to and confirmation of his possession over the suit land which was decreed in his favour and thus the suit brought on 8‑12‑1979 was hopelessly barred by time. On legal plane, it was averred that the transaction was based on a consent decree and was, therefore, not pre‑emptible; that the suit was barred by time and that the petitioner was estopped by his conduct to bring the present suit against the respondents.

3. The pleadings of the parties gave rise to as many as 10 issues including the relief. For the purposes of this revision petition, the following issues are material:‑ (2) Whether the suit is within time? (6) Whether the suit land did not belong to Begu Khan and it was instead the ownership of Karim Khan, if so, its effect?

4. Mr. Abdul Jabbar Khan, the learned trial Judge, who was seized of the case, had elaborately discussed issue No.2 and considered the effect of the consent decree holding that the cause of action had accrued to the pre‑emptor from the date of attestation of the impugned Mutation No.2402 attested on 9‑12 1978 and the suit was thus within time under section 31 of the N.W.F.P. Pre emption Act, 1950. On issue No.6, he was pursuaded to hold that Sheikh Azam had purchased the suit land from Karim Khan and Begu Khan, but with a view to warding off right of pre‑emption, facts have been misstated in the plaint.

5. On appeal before the learned Additional District Judge, the case was remanded on 4‑10‑1982 with the direction "to afford opportunity to the parties to produce evidence on the points as to whether Abdul Karim or Begu Khan was the owner of the suit land and as to whether the plaintiff had waived his right and to what extent and then to decide the case on merits. In the second round of litigation, the learned trial Judge by his order dated 19‑12‑1985 non‑suited the petitioner‑pre‑emptor on the ground that his suit was barred by limitation. In appeal before the learned District Judge, the case was again remanded on 20‑7‑1988 under Order 41 Rule

25. C.P.C. with the direction to record evidence of the parties on the additional issues and after deciding the said issues send the case file to him for final decision of the appeal Hence this petition in revision.

6. S. Zafar Abbas Zaidi, the learned counsel for the petitioner, contended that the order of remand was not sustainable in that the two additional issues which the learned Appellate Court had framed were not only superfluous having not gleaned from the pleadings of the parties, but had also been dealt with by the learned trial Judge whose finding was not either affirmed or reversed by the learned District Judge in his first remand order and directed the learned trial lodge to determine the question as to whether Abdul Karim or Begu Khan was the owner of the suit land. Consequently, the question of the pica of limitation had remained undetermined and the Appellate stage in the first round of litigation which was answered in the negative by the trial Judge, but had been confounded by the order of remand by framing of the two additional issues which was beyond the scope of pleadings of the parties besides being superfluous. Elaborating his joint of view, the learned counsel maintained that these two questions had been rightly considered by the learned trial Judge in the first round of litigation. The grievance of the petitioner's counsel is that the learned District Judge could have easily decided the issue of limitation on the evidence adduced before him. The learned counsel cited Ghulam Akbar Khan v. Haji Sher Jan and others (1989 C L C 1789), wherein relying on Habib v. Turab Shah (P L D 1979 Karachi 495) and Turab Shah v. Warad Shah (P L D 1979 Peshawar 132), I have held that the consent decree is just an agreement between the parties notwithstanding the fact that it has been recorded by and bears the seal of the Court, and submitted that the cause of action had accrued to the pre‑emptor‑respondents from the date of attestation of Mutation No.2402 dated 4‑12‑1978.

7. On the other hand, Mr. Abdul Latif Baluch, Advocate for the respondents, defended the judgments and decrees of the Courts below in general and the order of remand passed by the learned Appellate Court in particular. The learned counsel vehemently urged that when the transaction of sale is completed by virtue of a consent decree and on the basis thereof a mutation is attested, the cause of action for the purpose of pre‑emption, accrues to the pre‑emptor from the date of the decree and not from the date of attestion of mutation.

8. The fate of the plea of limitation, to my mind, does not depend upon the framing of the two additional issues and giving findings thereon, because these two points had been discussed earlier in the first round of litigation in the judgment of the learned trial Judge. The evidence has been fully recorded and the learned trial Judge during the second round of litigation had arrived at a definite conclusion on the point of limitation which has been vehemently contested in the appeal. The learned Appellate Court had enough material to come to its own findings on the crucial question of limitation and the date of transfer of actual and physical possession of the suit land to the vendees, which was the pivotal point in controversy. In this context, I may respectfully refer to the case of Barkhurdar v. Muhammad Razzaq (P L D 1989 S C 749), wherein their Lordships of the A Supreme Court have laid down that in the cases like the consent decrees and agreements to sell, the real controversy to be determined, by the Courts is the date on which the vendees are proved to have taken actual and physical possession, irrespective of the fact whether the transaction was completed by mutation or otherwise.

9. In this view of the matter I am constrained to set aside the order of remand passed by the learned Additional District Judge and remit the case to him with the directions to decide the appeal on merits, particularly issues Nos.2 and 6, in the light of my observations in the preceding paragraph of the judgment. The parties are directed to appear in the Court of Additional District Judge, Lakki, on 14‑6‑1990, Costs to follow the events. A. A./1073/P Case remanded