MUHAMMAD ASLAM Versus MUZAFFAR KHAN
1. MUHAMMAD AFZAL ZULLAH, J.‑‑ Leave to appeal has been sought by the vendees' side in these two pre‑emption matters against the dismissal of their Civil Revision by the High Court.
2. Learned counsel has contended that respondents' suit was time‑barred and it should have been dismissed accordingly.
3. Learned counsel further stated that there were two transactions of sale. Under the first one, the petitioners' side took possession, made payment and the sale was completed in every respect but it was found void. Then there was a second sale by a separate mutation which was pre‑empted from the respondent's side, as valid sale. The petitioner having taken possession in accordance with the first sale which though had been declared void, they could take the benefit of possession taken thereunder for the purposes of limitation.
4. The argument of the learned counsel appears attractive but on scrutiny it has been found to be without substance. The learned counsel admits that under Section 30 of the Pre‑emption Act physical possession which can be pleaded for creating bar of limitation, should be under the same sale. It is also admitted that the sale has to be the one under dispute in the suit for pre‑emption. That being so, it cannot be denied that the first transaction having become void the physical possession of the petitioners under "sale" which was brought under pre‑emption suit would commence from the date of the subsequent mutation. If that is so, it is not denied that the suits would be within limitation. Therefore there is no force in the argument of the, learned counsel.
5. He, however, half‑heartedly raised another contention; namely, that the respondents should have also challenged the first sale. It is not denied that the said sale was declared as void sale, for the petitioners who were beneficiaries under the first sale, when they found that the same was void they resorted to subsequent sale through mutation in which they tried to introduce additional elements. The respondents were not obliged to challenge the first sale through suit for pre‑emption. It may be remarked here that due to the change of circumstances of the second sale the same, viz‑a‑viz the question of possession also would go against the petitioners. Looked at from whatever angle, there is no force in these two petitions and the same are dismissed.
6. M.B.A./M‑497/S Petitions dismissed.