' Babu respondent/plaintiff filed suit against Sher petitioner/ defendant in the Court of learned Senior Civil Judge/Aala Maga Qazi, Buner at Daggar for possession. Through pre-emption of land mentioned in the heading of the plaint. Perpetual injunction restraining the respondent to interfere into the property in dispute was also sought. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 24-7-1996. Feeling aggrieved with the said judgment and decree, the respondent/plaintiff filed Appeal No,32/17 of 1997 in the Court of learned District Judge/Zilla Qazi, Buner at Daggar, which was allowed, the judgment and decree of the learned trial Court were set aside and the suit filed by the respondent/plaintiff was decreed in his favour vide judgment and decree dated 17-9-1998. Being not contented with the judgment and decree passed by the Appellate Court the petitioner has filed the revision petition in hand.
2. Mr. Muhammad Waris Khan, the learned counsel representing the petitioner argued that the respondent/plaintiff had failed to prove Talbs in accordance with law. Specific date and time when Talb-eMuwathibat was made was not mentioned in the plaint.
3. It was also argued that the notice of Talb-e-Ishhad was not proved in accordance with the requirement of law. The respondent/ plaintiff examined only one witness of notice of Talb-e- Ishhad, hence the suit was required for dismissal.
4. On the other hand Mr. Abdul Latif Afridi, the learned counsel for the respondent argued that respondent/plaintiff had proved the Talbs in accordance with law. The learned Appellate Court had rightly appreciated the evidence available on record while decreeing the suit in favour of the respondent/plaintiff.
5. I have heard the learned counsel for the parties and perused the record.
6. Perusal of the plaint shows that neither the time nor the place nor the date of Talb-e-Muwathibat was made was mentioned by the respondent/plaintiff in his plaint. The respondent/plaintiff examined himself. In his statement also he did not mention the time and place when Talb-e- Muwathibat was made by him. In his statement he stated that he gained the knowledge of agreement dated 13-3-1984 Exh.P.W.2/1 when he was distributing the amount of Qalang. The defendant demanded his share of Qalang, upon which he was asked as to in which capacity he was asking in the share of Qalang because Ghulam Khan the original owner of the land was alive.
The petitioner/defendant replied that he had purchased the property hence was demanding Qalang of the share of Ghulam Khan, upon which he made Talb-e-Muwathibat. Since the respondent/plaintiff had failed to mention the date, time and place where Talb-e-Muwathibat was made in his plaint as well as in his statement before the Court, therefore, the suit required dismissal on this score alone. Wisdom in this regard has been sought from Haji Muhammad Saleem v. Khuda Baldish PLD 2003 SC 315.
7. The respondent/plaintiff placed on record copy of notice of Talbe-Ishhad as Exh.P.W.2/2. The said notice was attested by Ghulam Zeb and Arghamash as its witnesses. The respondent/plaintiff only examined Arghamash as P.W.3. The other witness namely Ghulam Zeb of the notice of Talb-e- Ishhad Exh.P.W.2/2 was not examined by him. Non-examining of the second witness of Talb-e- Ishhad was also fatal for the I F case of respondent/plaintiff as held in Mst. Umatul Latif v. Mst.
Zaitoon Bibi 2001 MLD 335.
8. The sale of the property in dispute was affected through registered sale-deed No,44 dated 1-2- 1995, registered in the office of Sub-Registrar, Daggar. The suit in hand was filed on 15-6-1995 which is hopelessly barred by time. The argument of the learned counsel for the respondent that the period of limitation be counted from the date of attestation of Mutation No,2048 which was attested on 19-3-1995 because the Sub-Registrar had failed to give notice as required by section 32 of the N.-W.F.P. Pre-emption Act. Reliance in this regard was placed on NLR 1991 (Civil) 703, but the argument of the learned counsel for the petitioner has no force. The time for filing of suit when the sale transaction takes place through registered sale-deed starts from the day the sale-deed is registered and in case of failure of Registrar to issue public notice as envisaged by the provisions of section 32 of the Act, the period of limitation to be computed from the date of knowledge by the pre-emptor is misconceived. The judgment cited by the learned counsel for the respondent was not approved by the august Supreme Court of Pakistan, rather in a similar case reported as Maulana Noorul Haq v. Ibrahim Khalil 2000 SCM R 1305 it was held:-- "The next point for determination relates to the date from which the period of limitation for a suit to enforce a right of preemption arising from a registered sale-deed is to be computed. The explicit and mandatory provisions of section 31 of the Act leave no room for doubt that in case of sale effected through a registered sale-deed the period of one hundred and twenty days shall be computed from the date of registration of the sale deed. The contention that if the Registrar fails to issue public notice envisaged by the mandatory provisions of section 32 of the Act the period of limitation is to be computed from the date, of knowledge by the pre-emptor is misconceived. Such a provision is neither contained in section 31 of the Act nor can be read into it in view of settled law that Court cannot. Supply 'casus omissus'. A comparative study of sections 31 and 32 of the Act would make it manifest that the provisions with regard to issuance of public notice by the Registrar contained in section 32 had no nexus with the period of limitation prescribed by section 31 of filing a pre-emption suit in respect of sale transaction effected through a registered sale deed and is meant to provide an extra source of knowledge for making 'Talb-iMowathibat' and an alternate timeframe for making `Talb-e- Ishhad' in accordance with subsection (3) of section 13 of the Act."
9. Keeping in view the above discussion it can be safely held that the learned Appellate Court not only failed to appreciate the evidence available on record, but it also failed to appreciate the law applicable to the case in hand.
10. For the foregoing reasons, I accept the revision petition, set aside the impugned judgment and decree of the learned Appellate Court dated 17-9-1998 and restore that of the learned trial Judge, dated 26-7-1996. There shall be no orders as to costs.