2013 PLP 2141 (YLR)

MUHAMMAD DAUD KHAN, J.

This revision is directed against the judgment and decree of Additional District Judge/Izafi Zilla Qazi, Swat, camp Court Kabal dated 24-5-2012, vide which he dismissed the appeal of petitioner against the judgment and decree of Civil Judge-XIV/ Illaqa Qazi, Swat dated 21-5-2011.

2. The succinct but necessary facts forming the background of instant controversy are that the respondents/ defendants No.1, 2, 3 and 5 purchased the suit land from defendant No.4 through sale Mutation Nos.729, 730, 731 and 732, each attested on 24-10-2009, in Khasra Nos.957, 959, 960, village Dadhara, Tehsil Kabal, Swat. Petitioner/plaintiff instituted the suit for possession through pre-emption on said mutations of sale in the Court of Senior Civil Judge/A'ala Illaqa Qazi, Swat on 11-10-2010. The plaintiff averred in the plaint that the defendants Nos.1 to 6, to defeat the right of pre-emption of plaintiff/pre-emptor, collusively concealed the impugned mutations and did not give the notice to the pre-emptor/plaintiff under section 12 of Khyber Pakhtunkhwa Pre-emption Act, 1987 (hereinafter called 'The Act') and while attesting the above mutations, the concerned Revenue Officer did not give public notice in respect of such attestation, which is mandatory. In above circumstances, the plaintiff got knowledge on 29-9-2010 at afternoon, when plaintiff went to his garden parallel to sold land along with his son Waqar Ahmad when Nazir Ahmad and Fazal Hamid were digging the base for construction of mosque. On enquiry, plaintiff got knowledge of sale. Plaintiff then and there made Talb-e-Muwathibat in presence of his son Waqar Ahmad. After getting detailed information of sale sent notice Talb-e-Ishhad through registered post with acknowledgement due on 4-10-2010. The defendants/respondents contested the suit and submitted written statement. The learned trial Court framed following issues out of the divergent pleadings of the parties:-- (1) Whether the plaintiff has got the cause of action? OPP (2) Whether the suit is within time? OPP (3) Whether the suit of the plaintiff is not maintainable in its present form? OPD (4) Whether the plaintiff is estopped to sue? OPD (5) Whether the plaintiff has performed Talbs in accordance with the law of Pre-emption? OPP (6) What is the market value of the suit land? OP-Parties. (7) Whether the plaintiff has paid the 1/3 pre-emption amount? OPP (8) Whether the suit-land is purchased for Mosque, if so, its effect? OPD (9) Whether the plaintiff has got the superior right of pre-emption? OPP (10) Whether the plaintiff is entitled to the decree as prayed for? OPP. (11) Relief. Parties were asked to produce evidence which they did. After conclusion of the evidence and hearing arguments of parties, the learned trial Court dismissed the suit of plaintiff on 21-5-2011 being time-barred and riot fulfilled the requirement of section 13 of the Act, ibid. The petitioner/plaintiff preferred an appeal before the appellate court and the learned Additional District Judge/Izafi Zilla Qazi, Kabal dismissed the same vide judgment and decree dated 24-5-2012. Hence, the present revision petition.

3. The learned counsel for the petitioner contended that as the notice under section 12 of the Act, ibid, to sell the property was not given to the pre-emptor and Revenue Officer while attesting the mutations on 24-10-2009 did not give public notice in respect of said mutation under section 32 of the Act, which are mandatory and non-compliance of that mandatory provision, the instant suit getting knowledge on 29-9-2010 and filed on 11-10-2010, is well within time.

4. The learned counsel for the respondents supported the impugned findings of the two Courts below and contended that both the Courts below have not committed any illegality, as the present suit is instituted after more than eleven (11) months from the attestation of sale mutations.

5. Arguments heard and record perused through the valuable assistance of the learned counsel for the parties.

6. The pivotal questions between the parties are that whether the instant suit is within time as due to non-compliance of section 32 of the Pre-emption Act, the time will run from the date of knowledge of preemptor or suit is time-barred as the suit instituted beyond 120 days from the attestation of mutation for which limitation is provided under section 31 of the Act.

7. Before dilating to the points of determination, it is necessary to reproduce sections 31 & 32 of the Act ibid. Section 31 is provided for limitation to institute a suit of pre-emption, which reads as under: Section 31: Limitation:-- 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-emptory, if the sale is not covered under paragraph (a) or paragraph or paragraph (c)" Whereas section 32 is worded as under:-- Section: 32: "Notice-- (1) The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation. The point for determination relates to the date from which the period of limitation for a suit to enforce the right of pre-emption arising from the attestation of mutation is to be computed? The explicit and mandatory provisions of section 31 of the pre-emption Act, leave no room for doubt that in case of a sale effected through mutation, the period of one hundred and twenty days shall be computed from the date of attestation of the mutation. The contentions of learned counsel for the petitioner are not correct. The contention of learned counsel for petitioner, that if the Revenue Officer failed to issue public notice, as envisaged by the mandatory provisions of section 32 of the Pre-emption Act, the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived and not tenable. Such like provision is neither contained in section 31 of the Act, nor can be read into it, in view of settled law that Court cannot supply 'casus omisus'. The provisions with regard to issuance of public notice by the Revenue Officer, provided under section 32 of the Act, had no nexus with the period of limitation prescribed by section 31 of the Act for filing of a pre-emption suit in respect of sale transaction effected through a mutation. If the provision with regard to issuance of public notice by the Revenue Officer, contained in section 32 of the Act, is to be considered as mandatory, it provides an alternate time frame and an extra source of knowledge for making Talbs, given in the section 13 of the Pre-emption Act. The pre-emptor seeking condonation of delay on the score that sale deed or mutation was concealed by the vendee to prevent the pre-emptor from exercise his right of pre-emption. The registration of sale deed or attestation of mutation in "Jalsa Aam in the village" by itself, a notice to public-at-large, as the contention of pre-emptor that non-compliance of provisions of sections 12 and 32 of the Act, against the norms of Pre-emption Law. The honourable Supreme Court of Pakistan held in the case "Maulana Nur-ul-Haq v. Ibrahim Khalil" "2000 SCMR 1305", by their Lordships Mr. Justice Abdur Rehman Khan and Mr. Justice Qazi Muhammad Farooq (as by then they were):-- "There is yet another aspect of the matter to which it is necessary to refer to section 32 of the Act appears to be mandatory, in view of the expression 'shall' used therein but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory. It was held in Niaz Muhammad Khan v. Mian Fazal Raqeeb (PLD 1974 SC 134) that as a general rule a statute is understood to be directory when it contains matters merely of direction, but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void. In Major Shujat Ali v. Mst. Surrya Begum (PLD 1978 SC (AJ&K) it was held that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. The provisions of section 32 of the Act being directory cannot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards." In the light of above discussion, the suit of preemptor/plaintiff is badly time-barred, as he instituted the present suit beyond 120 days provided under section 31 of the Act.

8. The finding on issue No.5 regarding the Talb-e-Muwathibat by the trial court not requires any interference by this Court, as plaintiff has alleged in Para No.4 of his plaint that he got the knowledge of sale transaction on 29th September, 2010, but in his cross-examination, categorically gave different date of knowledge, which is reproduced as under:-- The statement of plaintiff is same/ neither in respect of month, nor concerning day and year to Talb-e-Muwathibat. So, it indicates that plaintiff had prior knowledge of the sale transaction but he did not pronounce his intention to pre-empt the suit-land. Moreover, plaintiff also stated that the notices of the Talb-e-Ishhad were sent to the defendants on the same day i.e. 1st October, 2009, but it is quite anomalous that in his cross-examination, he deposed that Talb-e-Muwathibat and Talb-e-Ishhad were made on the same day while in his plaint, it is stated that Talb-e-Ishhad was made after the lapse of two days. In view of the above discussion, the findings of the two Courts below are quite in accordance with law because no misreading, non-reading of evidence or illegal exercise of jurisdiction could be pointed out by the learned counsel for petitioner. Hence, the instant revision petition is dismissed. AG/276/P Petition dismissed.