2012 PLP 1467 (YLR)

KHALID MAHMOOD, J.

This revision petition under section 115, C.P.C. is directed against the judgment and decree dated 2-6-2004, whereby learned Additional District Judge-I, Mansehra dismissed the' appeal of petitioner and maintained, judgment and decree passed by Civil Judge-VIII, Mansehra dated 22-1-2002.

2. Petitioner/plaintiff filed a suit for possession of land, fully described in the heading of plaint, through pre-emption against respondent/defendant on the basis; of co-sharership and contiguity. Defendant appeared and contested the suit by filing written statement and learned trial court after, recording pro and contra evidence and hearing the parties dismissed the suit on 22-1-2002. Feeling dissatisfied petitioner preferred appeal which also met the same fate vide impugned judgment and decree dated 2-6-2004. Hence, this revision petition.

3. Learned counsel for petitioner argued that petitioner argued that in the previous civil Suit No.83/1, the subject-matter was Mutation No.4385 and not Mutation No.4416. It was argued that plaintiff being co-owner having superior right of pre-emption after fulfilment of requisite talbs has proved his case before the trial Court but learned courts below have taken into account minor discrepancies while dismissing the plaint and appeal. It was argued that judgments and decrees of both the courts below are against law and facts, therefore, liable to be set aside.

4. On the other hand, learned counsel for respondent opposed the contentions of petitioner and supported the impugned judgments and decrees.

5. Arguments heard and record perused.

6. Apparently, the subject-matter of Suit No.83/1 was Mutation No.4385 and not Mutation No.4416, which was in fact stayed by the trial Court. The suit was dismissed on the basis of Oath on 29-7-1998. In both the mutations the parties, area and sale consideration are different. In Mutation No.4385, fourteen vendors had sold out property measuring 02 kanals, 05 marlas for a sale consideration of Rs.8,000. whereas in suit mutation area in dispute is 01 kanal and 19 marlas, which has been sold out by Mst. Aasia Sultana and others (five vendors) in favour of respondent. Petitioner is in possession of the suit property and change of possession in favour of respondent stands not proved. The right of pre-emption only accrued on the basis of sale. The limitation for pre-emption suit starts from the date of attestation of mutation or registered sale-deed or on the basis of unregistered deed when physical possession is changed. Section 31 of N.-W.F.P. Pre-emption Act, 1987 reads as under:- "

31. Limitation. The period of limitation for a suit to enforce a right of pre-eruption under Act shall be (one hundred and twenty days) from the date- (a) of the registration of 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-emptor, if the sale is not covered under paragraph (a) or paragraph(b) or paragraph (c).

7. In no way, it can be held that limitation for filing a suit of pre-emption starts from the date of entry of mutation or sale entered in Roznamcha Waqaiti. As right to file a pre-emption suit accrued to petitioner after attestation of mutation on 29-1-1999, hence, petitioner was entitled to file a suit within 120 days after getting the knowledge about attestation of mutation, as prescribed under section 31 of N.-W.F.P. Pre-emption Act, 1987. Hence, date of entry of mutation is immaterial for the purpose of filing of a pre-emption suit as no sale is completed, mere, on the basis of entry of sale mutation. In this respect wisdom can be drawn from case of Muhammad Masood v. Ghulam Fatima (1987 SCMR 1206) and Bashir Khan v. Fateh Khan Shah (1990 SCMR 512).

8. In the facts and circumstances of the case, it appears that both the courts below have not appraised the evidence in its true perspective rather in haste decided the matters. As learned trial court has not discussed the performance of talbs and only non-suited the petitioner on the basis of wrong assumption of factual aspect as well as wrong interpreted the date of entry in the suit mutation from where right of pre-emption accrues and limitation for instituting a pre-emption suit starts.

9. Consequently, this revision petition is allowed. Impugned judgments and decrees of both the courts below are hereby set aside and case is remanded back to the trial court for trial de novo and decision afresh in accordance with law. M.W.A./72/P Petition allowed.