KHAISTA GUL Versus MIAN GUL

Khaista Gul Plaintiff sued Mian Gul on 44"A62 for a declara tion to the effect that he is the cc-owner of the suit land situate in the area of village Takil, Ilaqa Gadoon, District Mardan with Khan Sher from whom the defendant purchased the right of redemption. In the alternative, he also sued for pre-emption through redemption of the suit land on payment of Rs. 4,250 as mortgage money.

2. The pleas of the parties gave rise to the following Issues :-

(1) Whether the plaintiff is the owner of the suit land on the basis of the pre-emption decree passed by the A. C. Court?

(2) In case issue No. I is not proved, whether the plaintiff has got superior right of pre-emption?

(3) Whether the suit for pre-emption is within time?

(4) Whether Pre-emption Act has no application in Gadoon area ?

(5) Whether this Court has no jurisdiction to try the suit?

(6) Whether the valuation of the suit for purposes of court fee is correct?

(7) Relief.

3. The learned trial Civil Judge, Swabi by his judgment dated 11-12-1962 decided issue No. 1 against the plaintiff, issue No. 2 in favour of the plaintiff, and on issue No. 3 he observed : -

"That whenever Gadoon was made a part of the Mardan District became subject to the ordinary laws of the District and former N.-W. F. P. The provision of notification is only a way expressed for enforcing in plaintiff's favour."

He decided issues Nos. 4 and 5 against the defendants and issue No. 6 in favour of the plaintiff. Consequently the plaintiff's suit was decreed.

4. Mian Gul went in appeal against the judgment and decree. The learned appellate Court by his judgment dated 7-8-64 dealt with only on the two legal points relating to the jurisdiction and the applicability of the N.-W. F. P. Pre-emption Act, and held that the N.-W. F. P. Pre-emption Act or the pro visions of the Civil procedure Code did not apply to the area where the property in dispute is situated. He thus accepted the appeal, set aside the judgment and decree of the lower Court and ordered the return of the plaint for presentation in a competent Court if any.

5. Khaista Gul has come up on second appeal to this Court.

6. This case along with other cases, wherein similar points had arisen, was referred to a Division Bench of this Court. The question referred to the Division Bench was :-

"Whether the Central Laws and the Provincial Laws, includ ing the N.-W. F. P. Pre-emption Act, have been extended or deemed to have been extended to the former Gadoon Area, which has been added to Mardan District?"

A Division Bench of this Court by Its judgment dated 13-6-69,answered the question In the following manner :-

"The N.-W. F. P. Pre-emption Act (XIV of 1950) has not been extended to the former Gadoon Area which has been added to Mardan District by G.-G.'s O. VII of 1953. The Civil Procedure Code (Act V of 1908), however, has been extended to this area."

Consequent to the decision of the D. B., I hold on Issue No. 4 that the Pre-emption Act has no application to Gadoon Area, and also hold on issue No. 5 that the Court has jurisdiction to try the suit.

8. I, therefore, accept the appeal, set aside the judgment and decree of the appellate Court dated 7-8-64, and remand the appeal to the Court of Additional District Judge, Mardan, for deciding the appeal on Issues Nos. 4 and 5 in the light of the above observation and also on the remaining issues if permissible in law. Parties to bear their own costs.

S. A. H. Appeal accepted.