SAJJAD-UR-REHMAN Versus SAFI ULLAH

QALANDAR ALI KHAN, J.--- The facts leading to filing of the instant revision petition under section 115, C.P.C., briefly stated, are that the petitioner/plaintiff had filed a suit for preemption against the respondents, Safi Ullah and Ihsan-ul-Haq, in the Court of Civil Judge, Tangi, wherein, on their appearance in the case, the respondents, instead of filing written statement, submitted application under Order VII, Rule 11, C.P.C. for dismissal of the suit on the ground that sale mutation was in favour of three persons, whereas suit was instituted against only two persons. The petitioner/plaintiff submitted reply to the application, whereafter, suit of the petitioner/plaintiff was dismissed by the learned Civil Judge Tangi vide order dated 25.07.2009.

2. The appeal preferred by the petitioner/plaintiff also met the same fate and was dismissed by the learned Additional District Judge, Charsadda at Tangi vide judgment/order dated 07.06.2010; hence, this revision petition, inter alia, on the grounds that the suit was correctly lodged against two persons and that another person was subsequently included/added in the sale mutation, but the learned two Courts below erred in disposing of the suit on the basis of simple application of the respondents/defendants, without requiring them to submit their written statement, framing of issues and recording of evidence to ascertain true facts about subsequent inclusion of name of third person in the impugned sale mutation.

3. Mr. Abdul Sattar Khan, Advocate Supreme Court of Pakistan, counsel for the petitioner, referred to the impugned sale mutation No.4424 attested on 12.01.2009 and pointed out that in the order of attesting authority i.e Tehsildar, only the names of respondents are mentioned as vendees and that the shares allotted to the vendees would also not admit name of third person as vendee. The learned counsel, in view of the above facts, stressed that the suit was neither hit by the principle of waiver embodied in section 15 of the NWFP Pre-emption Act, 1987 nor the suit was with regard to a part of the property pre-emptable and thus barred under section 19 of the NWFP Pre-emption Act, 1987.

4. Mr. Muhammad Fahim Wali, Advocate, counsel for the respondents, on the other hand, while producing copies of the relevant record, including copy of "Roznamcha Waqiyati" No.108 dated 17.12.2008, urged that there was no ambiguity with regard to transfer by way of sale of land measuring 08 Kanal out of "Khatajat" Nos.35 and 36 in favour of three vendees namely Ihsan-ul-Haq, Saif Ullah, respondents Nos.1 and 2, and Sibghatullah, to the extent of 2 kanals each in favour of the respondents while the remaining 4 kanals in favour of the said third person namely Sibghatullah. The learned counsel pointed out that in the sale transaction, vendor, Yaqoob Khan, is father of the petitioner/plaintiff while both the informer, Hayatullah, and witness of 'Talb-e-Muwatibat' namely Naseem Khan are real brothers of the petitioner/plaintiff. Therefore, the petitioner/plaintiff could not claim to be unaware of the sale transaction between his father and three vendees mentioned hereinabove. According to the learned counsel for respondents, principle of implied waiver was applicable to the case of the petitioner being real son of the vendor and thus aware of the transaction, in the light of judgment of the Apex Court reported as 2005 SCMR 895. The learned counsel further contended that by excluding the share purchased by the said Sibghatullah, the suit was hit by the principle of partial pre-emption and thus barred under the provision contained in Section 19 of the NWFP Pre-emption Act, 1987. In support of his contentions in this respect, the learned counsel placed reliance on PLD 1981 SC 51, PLD 1968 SC 140, 2005 CLC 603 (Lahore) and 2007 SCMR 1802. On the strength of judgments reported as PLD 1984 SC 403 and 1994 CLC 1248 (Lahore), the learned counsel stressed that in view of the fact that the sale transaction had, admittedly, taken place between father of the petitioner/plaintiff, vendor, and respondents as well as the third person namely Sibghatullah before recording of report with regard to the sale transaction in "Roznamcha Waqiyati" on 17.12.2008, the "Talbs" would be beyond the period of limitation prescribed by the law.

5. The perusal of record would reveal that not only vendor is real father of the petitioner/plaintiff/pre-emptor, but informer of the sale transaction is his real brother and witness to the "Talbs" is also his real brother, therefore, the petitioner/plaintiff cannot take the plea that he was unaware of the sale transaction between his father and the vendees, reported to the revenue officer much earlier than attestation of the sale mutation. As such, not only the principle of implied waiver would be applicable to him but the performance of "Talbs" would also be beyond the period of limitation prescribed by the law. Although, there has been allegation of inclusion of name of third vendee, Sibghatullah, through fraudulent means, subsequently, but the petitioner/plaintiff has not been able to point out on record any application or complaint moved by him in this respect after the alleged fraud came to his notice. Needless to say that inclusion of the name of third vendee, Sibghatullah, in the sale mutation is glaring on the record, and simple omission of his name from the final order/report of Tehsildar would not prove to the contrary in the absence of anything in support of the order of the attesting Tehsildar, especially when the sale consideration of Rs,4,00,000/- has jointly been paid by all the three vendees to the vendor. In such a situation, the suit would, admittedly, fall within the ambit of partial pre-emption, and not maintainable under the law i.e section 19 of NWFP Pre-emption Act, 1987, as well as judgments cited at the bar by the learned counsel for respondents. It may be added here, for the sake of arguments, that there appears no scope for including the said Sibghatullah in the suit for pre-emption as in that case the petitioner/pre-emptor would not be able to meet the mandatory requirements of "Talbs" within the prescribed time, against the said Sibghatullah.

6. In the circumstances, the learned trial Court was perfectly justified to have resort to Order VII, Rule 11, C.P.C. when the suit was found not maintainable; and, similarly, the order of the appellate Court/Additional District Judge, Charsadda at Tangi is based on proper appreciation of facts of the case and law applicable thereto. In short, the well reasoned judgments/orders of both the trial and appellate Courts do not call for interference in the revisional jurisdiction of this Court. Consequently, the revision petition is dismissed.

MM/153/P Revision dismissed.