' MUNIR A. SHEIKH, J.---This appeal by leave of the Court against judgment dated 23-12-1997 of a Division Bench of the Peshawar High Court through which Constitutional petition filed by the appellant has been dismissed, has arisen from a suit filed by him to pre-empt the sale made through two mutations one for sale of the land and the other of mortgage.
2. The suit was admittedly filed after the expiry of 120 days of the sanction of mutation in the Revenue Record by the Revenue Officer. It was averred in the plaint that the appellant apart from being an illiterate old person was living in some other village but neither notice as required under section 31 of the N.-W.F.P. Pre-emption Act, 1987 was given by the Revenue Officer within the period of 15 days of the attestation of mutation nor the same was affixed on the outer door of the mosque or any other conspicuous place of the village where the land was situated. In ground No,( ) under paragraph-4 of the plaint, it was specifically pleaded by way of reiteration that no such notice was ever given by the Revenue Officer.
3. The respondents made an application for dismissal of the suit on the ground of limitation. This application was dismissed by the trial Court through order dated 11-12-1996 on the ground that notice under section 31 for attestation of mutation was also material to determine as to the point of time when the respondents were required to make Talb-i-Muwathibat which was necessary for maintaining the suit, therefore, the question whether any such notice was given or not by the Revenue Officer as provided under the said section or what is its impact on the question of limitation under section 32 ibid should be decided after framing issues and recording evidence.
4. The revision petition filed by the respondents was, however, accepted through judgment dated 10-7-1997 by the learned Additional District Judge, Kohat. It was held that as per contents of the mutation as to its date of sanction, the suit was not filed within 120 days, as such, no evidence was required to be recorded to hold that the same was barred by time, therefore, on this assumption, the revision petition was accepted and the plaint rejected under Order VII, rule 11, C.P.C. Against which Constitutional petition filed by the appellant has been dismissed through the impugned judgment dated 23-12-1997 by a Division Bench of the Peshawar High Court against which this appeal by leave of the Court is directed.
5. The main thrust of argument of learned counsel for the respondents in support of the judgments of the two Courts below was that the law would presume performance of all official acts in accordance with law, therefore, presumption could be raised that official acts under the provisions of section 31 of the Act as to issuance of notice and affixation of the same at the conspicuous place in the village or the mosque had been regularly performed. This argument might have considerable force if the plaintiff in the plaint had not raised any plea as to non-performance of the said official acts.
6. In our view, once the appellant in the plaint had expressly raised the question that the official acts were not performed as provided under section 31 of the Act, it was imperative upon the trial Court to frame an issue, allow the parties to lead evidence and thereafter decide the controversy.
7. The order of the trial Court was perfectly in accordance with law, therefore, it was not a fit case for interference under section 115, C.P.C. By the learned Additional District Judge as no irregularity amounting to illegality had been committed by the trial Court in exercise of jurisdiction vested in it.
8. The judgment passed in the Constitutional petition impugned in this appeal also suffers from the same legal infirmity which cannot be sustained.
9. For the foregoing reasons, this appeal is accepted, judgment dated 23-12-1997 of the High Court passed in Constitutional Petition No,1423 of 1997 and dated 10-7-1997 of the learned Additional District Judge passed in the revision petition are hereby set aside and that of the trial Court restored.
10. No order as to costs.