1988 PLP 1948 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is a petition for leave to appeal against the order of the learned Chief Justice of the Peshawar High Court, dated 12‑4‑1987, whereby the revision petition filed by the present petitioners was dismissed.

2. The facts giving rise to this petition are that land measuring 5 kanals 15.6/8 marlas situate in village Kalla Butt, Tehsil and District Swabi, was mortgaged by the predecessor‑in‑interest of defendants No.5 to 8 in favour of the predecessor‑in‑interest of respondents No.1 and 9 to 11 about 90/95 years back. The mortgage having become barred by time, respondent Nos.l and 9 to 11 became the owners of the said property and the right of ownership of defendants No.5 to 8 stood extinguished. Respondent No.9 sold out of the said land an area measuring 19.3/8 marlas vide Mutation No.9980 attested on 10‑10‑1982 in favour of petitioners No.1 to 4 without the knowledge of respondent No.1 for a consideration of Rs.5,750 but in order to defeat the right of pre‑emption of respondent No.1 an ostensible sum of Rs.65,000 was got fictitiously entered in the sale mutation. Respondent No.1 brought a suit for a declaration to the effect that he became the owner of land measuring 5 kanals 15.6/8 marlas on account of time‑barred mortgage and further claimed possession of land measuring 19.3/8 marlas through pre‑emption by claiming superior right.

3. The suit was contested by the petitioners on the ground of limitation; that respondent No.1 could not take the benefit of the provision of section 28 of the Limitation Act until the mortgage is redeemed by defendants 5 to 8; that without obtaining a declaration to the effect that the mortgage has become time‑barred, respondent No.1 was not entitled to pre‑empt the suit land and further that the transaction is exempt from pre‑emption since the suit land was purchased for residential purposes. As a result of the pleadings, the learned Civil Judge, Swabi, framed as many as seventeen issues, of which we are presently concerned mainly with issues Nos.4 and 7 which are: "(4) Whether the plaintiff has no locus standi to sue for pre‑emption before the passing of a declaration decree? (7) Whether the sale is not subject to pre‑emption?"

4. The learned trial Court after recording the evidence produced by the parties decreed the suit of respondent No.1 at the sale consideration of Rs.65,000 vide judgment dated 6‑11‑1985. The appeal and the revision petition filed by the petitioners before the Additional District Judge, Swabi, and the High Court were dismissed on 20‑10‑1986 and 12‑4‑1987.

5. The learned counsel for the petitioners here before us also questioned the findings of the Courts below on issues No.4 and

7. The trial Court has examined both issues No.4 and 7 in a very elaborate manner and while deciding issue No.4 in favour of respondent No.1 held: "By the present suit, the plaintiff has sought declaration to the effect that land measuring 5 Kanals 15.6/8 Marlas has become the ownership of plaintiff and defendants No.9 to 11 due to time‑barred mortgage, since the period of more than sixty years has elapsed after the creation of original mortgage this basis pre‑emption has been brought in respect of the sale made by Mutation No.9980) dated 10‑10‑1982 (Order II Rule 3 of Civil Procedure Code). The version of the defendants that plaintiff cannot seek such a declaration of time‑barred mortgage until a proper suit is brought for the same by defendants 5 to 8 is not reasonable and it is also not supported by any authority on the point. In this regard, the learned counsel for the plaintiff has referred to P L D 1959 (W.P.: Peshawar 178 in support of his plea that pre‑emptor is entitled to have. an ostensible mortgage declared sale. In the present case original mortgage was created even before 1901‑02 and it is also established that the plaintiff is an owner in the suit Khata through purchase vide Mutation No.6694 dated 12‑1‑1959. Defendants No. 5 to 8, viz., the legal heirs of original mortgagor were placed ex parte and have not contested the case. For the foregoing reasons I hold that the plaintiff has got locus standi to sue for declaration and pre‑emption and there is no need for him to wait till a suit by defendants Nos.5 to 8 with regard to redemption of the suit property. The issue is decided accordingly."

6. As already stated, the appellate as well as the learned revisional Court have affirmed the above finding and we too do not find any defect in the same inasmuch as by the lapse of time of sixty years and the declaration aforenoted, respondent , No.1 has become the full owner of the suit property and thus has a superior right of pre‑emption as a co‑sharer. Mutation No.6694 through which respondent No l became owner in the suit Khata has further fortified his superior right of pre‑emption.

7. Thus finding no force in the petition, the same is dismissed. M. Y. H. /S‑192/S Petition dismissed: