GHARIB SHAH AND OTHERS vs ZARMAR GUL

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 2-11-1983 of the Peshawar High Court; whereby respondent's civil revision petition, arising out of a pre-emption case, was allowed.

2. ' Respondent's suit was resisted by the petitioners/vendees, amongst others, on grounds of limitation; and, the latter having equal right as that of the preemptor or on basis of 'contiguity'.

3. ' Petitioners' plea on the first point was that the limitation commenced from 28-12-1974 when the Revenue Officer recorded the statement of the vendors of the land in. Dispute and not from 9-1- 1975 when the said Officer purported to "sanction" the mutation, and that the date of "attestation" of the sale under section 31 of the N.-W. F. P. Pre-emption Act, 1950, is the commencing day of limitation in this case, therefore, the suit filed on 7-1-1976 was time barred.

4. ' Learned counsel has explained that the attestation of mutation was complete when the vendors' statement was recorded in token of attestation of sale and that the formal order of "sanction" of Mutation, was not necessary for the relevant 'attestation'. He has relied on subsections (6) and (7) of section 42 of the West Pakistan Land Revenue Act (XVII of 1967). They together with subsection

(8) read as follows :- Section 42.........................

5. (1)

6. (2)

7. (3)

8. (4)

9. (5)

10. (6)A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in the register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.

11. (7)Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection {6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned, whose signatures or thumb- impressions shall be obtained by the Revenue Officer, on the register of mutations.

12. (8)An enquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the enquiry, relates.

13. ' That part of section 31 of N.-W. F. P. Pre-emption Act, 1950, which is relevant in this case provides that the period of limitation shall be one year "from the date of attestation (if any) of the sale by. a Revenue Officer............................ In the register of mutations maintained under................ OP ' The two orders passed by the Revenue Officer on 28-12-1974 and 9-1-1975 are as follows; {{URDU TEXT}} OIL No doubt learned counsel is right that the words 'sanction of mutation' is not mentioned in section 31 of the Pre-emption Act. It is also correct that the word "attestation" which is used in the said section 31 is not used in section 42 of the Revenue Act. But that does not mean that the phrase "attestation of the sale" used in the Pre-emption Act cannot be co-related to the final order in that behalf, which has to be passed under sections 42(6), (7) and (8) of the Revenue Act.

14. It is obvious that subsection (8) of section 42 significantly makes it a condition precedent for any effective order that it shall be made only in the "common assembly" in the estate to which the mutation relates. The argument of the learned counsel that vendors' statement recorded under subsection (6) of section 42 that they sold the land, is enough to close the proceedings and that subsection (8) need not be complied with and that in any case it was complied with even on 28.12- 1974 when the vendors made statement in this case, is without force. The words attestation used in section 31 is not the attestation by the vendors. It is the 'attestation of the sale" by the Revenue Officer" and that too in the form of an "order" which is visualized by subsections (6), (7) and (8) of section 42. And the same amounts to the "attestation of sale" referred in section 31 of the Pre- emption Act. The order passed on 28-12-1974 as it shows, was not final.

15. ' It was yet to be followed by another order. He was to make the attestation as Revenue. Officer after the proclamation{{URDU TEXT}} (j4---41) mentioned therein. The use of words {{URDU TEXT}} "jig-z.:1" and (AA a-4." in the order of 28-12-1974 and 9-1-1975 have to be read together in order to understand their true import and the intention underlying the same. Read in this context, the operative final order of "attestation of sale" in this case is of 9-1-1975.. That being so, the suit filed on 7-1-1976 was within limitation. Thus, there is no force in the first argument of the learned counsel.

16. The second argument on question of contiguity of petitioners' land is dependent upon the so- called misreading by the High Court, of a statement in cross-examination made from the petitioners' side, which statement was c treated as an admission. We having gone through the same are satisfied that there was no misreading. On the other hand, the learned lower appellate Court Had ignored it and the High Court could make the correction of this material irregularity, in its revisional jurisdiction. No justification has been made out for interference with the impugned judgment of the High Court in this behalf either.

17. ' The petition accordingly is dismissed.