TAUS KHAN Versus Haji MUHAMMAD NISAR, ADVOCATE
MALIK MANZOOR HUSSAIN, J.--- Through this single judgment, this court intends to dispose of titled revision petition as well as connected C.R. No.389 of 2012 arising out of single judgment dated 27.10.2011 as common questions of law and facts are involved in both the petitions.
2. Briefly, the facts of the case are that respondent Haji Muhammad Nisar brought a suit against the petitioner and respondent No.2 for possession through pre-emption of land, fully described in the heading of the plaint. The suit was contested by the petitioner and respondent No.2, after recording pro and contra evidence, the learned Trial Court through judgment and decree dated 26.5.2011 dismissed the suit. Feeling dissatisfied, respondent No.1 preferred appeal, which was allowed through impugned judgment dated 27.10.2011, in consequence thereof, the judgment and decree of the learned Trial Court was set aside and the suit filed by respondent No.1 was decreed in lieu of amount of consideration of Rs.7,32,432/-. The respondents preferred C.R. No.389/2012 against the consideration amount fixed by the learned Trial Court whereas the petitioner preferred instant C.R. No.499 of 2012 against the decree.
3. The learned counsel for the petitioner contended that from the very plaint as well as the statement recorded by the pre emptor, it was established that an oral sale was made, which was followed by an agreement dated 25.3.2008 while the suit was filed on 19.9.2008, thus the same was hopelessly time barred. He further argued that the agreement was exhibited and produced by the witness of respondent No.1-pre-emptor, thus there was no need to prove the same through requirements of Article 79 of (Qanun-e-Shahadat Order, 1984). He further argued that the learned Appellate Court's judgment is based on self contradiction and misconception.
4. Conversely, the learned counsel appearing on behalf of respondent No.1 argued that suit was well within time as no mutation or registered deed was executed in this regard. He further argued that after they came to know about the possession of suit property, they immediately sent notice and thereafter filed the suit, which was well within time.
Arguments heard and record perused.
5. From perusal of the record it is established that the sale took place vide document Ex.P.W.11/1 dated 25.3.2008 duly exhibited by P.W.11, the witness of the pre- emptor. It is also consistently admitted by all the witnesses of the pre-emptor/respondent No.1 that the petitioner/vendor took possession of land as owner, right from the date of scribe of the deed. The plaint itself depicts that the sale was completed and thereafter the possession of suit land was transferred to the petitioner. There are four requirements of section 31 of N.W.F.P. Pre-emption Act, 1997, which are reproduced for the convenience as under:-
"31. Limitation.---The period of limitation for a suit to enforce a right of pre-emption under this Act shall be [one hundred and twenty days] from the date
(a) of the registration of the sale-deed; or
(b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or
(c) one which the vendee takes physical possession of the property if the sale is 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)."
It is an admitted fact that no mutation or registered deed was executed and the physical possession taken by the vendee of the property was covered in the case in hand wherein the suit has to be filed within 120 days from the date of possession. Admittedly, the sale followed by the possession was took place on 25.3.2008 while the suit was filed on 19.9.2008 i.e. after more than 173 days. Thus the learned Appellate Court had erred in arriving at the conclusion that the suit was within time.
6. It is also established from the record that the pre-emptor/respondent No.1 was in knowledge of the sale of the suit property, as an offer was made to him by the vendees for retransfer of the property on payment of actual amount immediately after taking possession and the same had been admitted by the pre- emptor and the defendant witnesses. It was the bounden duty of the pre-emptor to immediately perform the initial demand of Talb-e- Muwathibat and after completing the other formalities, file suit for pre-emption within 120 days as prescribed in section 31 of the Act, ibid. The suit of the pre-emptor was hopelessly time barred as had been noticed by the learned Trial Court.
In consideration of what has been discussed above, the instant civil revision is allowed and by setting aside the judgment and decree of the learned Appellate Court, the suit of respondent No.1 stands dismissed with no order as to costs.
ZC/581/P Revision allowed.