2018 PLP 76 (CLCN)

MOHAMMAD IBRAHIM KHAN, J

R.F.A. No.312-2013 titled Nazeer Muhammad v. Fazal Zada and others band together with C.R. No.300-P/2014 titled Fazal Zada and others v. Nazeer Muhammad are taken care of by this conjoint judgment. The Regular First Appeal arising out of Suit No.177/1 instituted on 04.09.2012 which is in respect of possession through exercising the right of pre-emption for land measuring 6 Kanals with regard to the Khasra numbers given in detail in the head note of the plaint. The deal in is struck by the mutation No.3385 attested on 14.01.2012 in lieu of sale consideration of Rs.45,00,000/- (forty five lacs). The impugned order is dated 17.09.2013 whereby an application under Order VII, Rule 11, C.P.C. was accepted and the plaint in the suit of the plaintiff/appellant was rejected. Civil Revision is deriving out of Civil Suit # 178 instituted on 04.09.2012 wherein the sale activity touch upon to 2 Kanals under the Khasra numbers mentioned in the head note of the plaint, which is hit by mutation No.3384 attested on 14.01.2012 for an amount of Rs.15,00,000/- (fifteen lacs) as its sale consideration. Under an application submitted for rejection of the plaint within the meaning of Order VII, Rule 11, C.P.C. on acceptance, the plaint in the suit of the plaintiff/respondent was rejected by an order of the learned trial Court dated 17.09.2013, which order was impugned before the Court of learned District Judge, Swabi, marked to the Court of learned Additional District Judge-II, Swabi where the appeal was accepted vide judgment dated 15.03.2014. The order of the learned trial Court on setting aside, the record was remitted there to proceed with the trial under the observations in view of the wisdom contained in the judgment of Hon'ble Peshawar High Court, Peshawar in a titled case "Muhammad Ghaffar v. Mst. Irum and others and "Muhammad Shah v. Additional District Judge, Kohat and others" reported in 2004 SCMR 535.

2. The reasons for commutual findings in this common judgment are that the parties are one and the same litigating under the identical title and similar questions of law and facts are likely to be addressed.

3. In both, the Regular First Appeal and Civil Revision the points in controversy are that each suit put in operation for the requirement of Talb-e-Khusumat is not within the ambit of limitation, as required under section 31 (Pre-emption Act) while there is failure to deposit the one-third of the sale consideration under the real amount paid, as reflected in the sale mutation Nos.3384 and 3385 respectively.

4. Having heard learned counsel for the parties, record gone through with their assistance.

5. Learned counsel for the pre-emptor placed reliance on 2014 YLR 196 (Sar Iqbal Khan v. Hamid Iqbal Khan), 2006 MLD 775 (Naseer Begum v. Province of Punjab), 2004 SCMR 535 (Muhammad Shah v. Additional District Judge, Kohat), 2010 CLC 106 (Muhammad Ghaffar v. Mst. Irum and others), 1989 CLC 15 (Mian Muhammad Akram v. Muhammad Rafi). He argued that whenever there is an issue of law and fact involved in the case, the parties are to be given reasonable opportunity to lead their respective evidence. In both the suits the parties despite the fact that limitation, being a mixed question of law and fact, no opportunity was afforded to state the real facts, thus the learned Civil Judge in both the suits has erred in law and snarled up. Affording a fair opportunity to the pre-emptor was his indefeasible right to record evidence. These arguments were staved off in view of the authorities reported in 2011 YLR 2219 (Aman Ullah Khan v. Pir Zada Muhammad Sabir Shah), PLD 2014 Supreme Court 488 (Muhammad Zahid v. Dr. Muhammad Ali), PLD 2003 Peshawar 189 (Gohar Sultan v. Gul Waris Khan), 2011 MLD 71 (Abdul Khaliq v. Safdar and 2 others), 2012 CLC 212 (Masoor Anwar v. Haji Rab Nawaz), 2003 YLR 742 (Machin Khan v. Sher Muhammad Khan). It was argued that since the transactions were made through mutations, therefore there is no need to record evidence and the issue of limitation which is a decisive factor to narrow down the controversy in these suits to be decided for a logical end.

6. Indeed, both Suit No.177/1 and in Suit No. 178/1 even dated instituted on 04.09.2012, the sale transactions under mutations Nos.3384 and 3385 are attested on particular day of 14.01.2012. To exercise the right of pre-emption, it is mandatory that limitation for pre-emption suit has to be computed from the date of registration of the sale deed or attestation of mutation or taking over physical possession of the land in question by the vendee or of the knowledge of the preemptor, if the transaction was not covered under paragraph (a) (b) and (c) of section 31 of Khyber Pakhktunkhkwa Act, 1987. Since the transactions in both the cases have been made through mutations under reference, thus the period of limitation of 120 days would start from the date of its attestation on 14.01.2012. In this case it is as shoot of pre-emptor's mouth that the Talb-e- Muwathibat was made to pre-empt each transaction on 08.05.2012 at 20:00 hours at a place Baittak, owned by the pre-emptor in Mohallah Jafar Khel village Bam Khel Tehsil and Distt: Swabi. The pre-emptor was well within the knowledge by the said date when he made Talb-e-Muwathibat so much so that the date of Talb-e- Ishhad in each suit of pre-emption is 19.05.2012. Surely, when reference of the sale mutations are specified referred to in the Talb-e-Ishhad notices, then filing of suit for the purpose of Talb-e-Khusumat by terminal date on 04.09.2012 would trigger both the suits to be barred by time over and above 94 days.

7. As far as the rejection of the plaint on the ground for deposit of one-third of sale price in cash and to require furnishing bank's guarantee to the extent of two-third of the sale price. Admittedly, the pre-emptor in both the cases has deposited one-third of the exaggerated amount falling flat, the pretended price fixed by the pre-emptor himself and not in accordance with the sale consideration, entered in each mutation Nos.3384 and 3385 both attested on clock like date 14.01.2012. While referring to the wisdom contained in 2003 YLR 793 (Muhammad Ayub v. Mst. Nusrat Begum), PLD 1993 Peshawar 259 (Habibullah v. The District Judge D.I. Khan), 2011 MLD 466 (Asfandiyar Khan v. Ghazanfar Ali), PLD 1992 Peshawar 18 (Shah Behram v. Akbar Khan), the relevant section 24(2) under discussion of the Khyber Pakhtunkhwa Pre-emption Act, 1987 is reproduced here:

24. Plaintiff to deposit sale price of the property. (1) ..................................................................... ..................................................................... (2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed. (3) ..................................................................... (4) ..................................................................... (5) ..................................................................... The pre-emptor was well aware of the sale consideration entered in each transaction under the mutations referred above, therefore when has not deposited the exact amount falling under one-third required to have been deposited with the learned trial Court and the remaining two-third by furnishing a bank guarantee, therefore both these suits were liable for rejection of the plaints.

8. In view of the dearth of legal provisions required for exercising the right of pre-emption when the pre-emptor has willfully run out on, thereby upholding the impugned orders dated 17.09.2013 of the learned Civil Court in each Civil Suit, while the impugned judgment dated 15.03.2014 of the learned Additional District Judge impugned in Civil Revision is not in consonance with the Khyber Pakhtunkhwa Pre -emption Act, 1987 under the relevant section 31 and section 24(2) requirements, which is hereby set aside.

9. For what has been stated above R.F.A. No.312-P/2013 is dismissed while C.R. No.300-P/2014 is accepted, leaving plaint in each Civil Suits Nos.177 and 178 worth rejected. ZC/70/P Order accordingl