' Haji Muhammad Tawas petitioner/plaintiff filed suit against the respondents in the Court of learned Civil Judge/Illaqa Qazi Malakand at Dargai for possession through pre-emption of land measuring 12 Kanals, 1 Marla comprising Khasras Nos.341 and 342 situated at Wand Koper Tehsil Dargai District Malakand. Perpetual injunction restraining the respondents to change the nature of the land and to raise construction over the property in dispute was sought. The said suit was resisted by the respondents/defendants by filing written statement. The learned trial Court after framing issues recording pro and contra evidence of the parties decreed the suit in the manner that the parties would be held entitled to half share of land in dispute vide judgment and decree, dated 8-9-2001. Being not contented with judgments and decrees of the Courts below the petitioner/plaintiff filed Appeal No,13/14 of 2001, whereas the respondents filed Appeal, No,13/13 of 2001 in the Court of learned Additional District Judge/Izafi Zilla Qazi, Malakand at Dargai. The appeal filed by the respondents (No,13/13) was allowed and the suit filed by the petitioner/plaintiff along with his Appeal (No,13/14) was dismissed vide judgment and decree dated 3-4-2002. Being not contented with the judgments and decrees of the Courts below the petitioner has filed the revision petition in hand.
2. Mr. Abdul Latif Afridi, Advocate the learned counsel 'representing the plaintiff/petitioner argued that the admitted position in this case was that the petitioner/plaintiff was owner of contiguous property comprising Khasras Nos.339 and 340, whereas respondents were also landowners in the contiguous property in the Khasras Nos.343 and 344. The learned trial Court while properly appreciating the evidence available on record decided the suit whereby both the parties were held entitled to half share in the property in dispute being contiguous owners. The judgment and decree passed by the learned trial Court was based on proper reasoning, hence, needed no interference.
3. It was further argued that the petitioner/plaintiff gained knowledge of the alleged sale on 22-1- 1999. He made Talb-eMuwathibat on the same day, sent notice of Talb-e-Ishhad on 25-1-1999 and filed suit on 13-2-1999. The suit filed by him was within time, but the learned Appellate Court wrongly held the same to be barred by time.
4. It was further argued that the provisions of section 31-D of the Pre-emption Act, 1987 were attracted in the case of the petitioner/ plaintiff and the Talbs were made in time on gaining knowledge of the sale. So far as possession of the respondents over the suit property is concerned, they are already in possession of the suit property being tenant. Reliance in this regard was placed on PLD 1994 SC 356, PLD 1984 SC 188 and 2003 YLR 95.
5. On the other hand Mr. Muhammad Aman Khan, Advocate the learned counsel for the respondents argued that the original notice of Talb-e-Ishhad was never sent to the respondents/defendants, but photocopy of the same was sent. This fact was not only admitted by Haji Tawas Khan P.W.2 in cross-examination but by Abdur Rehman P.W.4 and Sher Ali P.W.3. The suit of the petitioner/plaintiff was liable to be dismissed on this score alone. Reliance in this regard was placed on 2000 CLC 336 and 2004 YLR 115.
6. It was also argued that the respondents got 4 Kanals of land in Khasras Nos.341/342 from Abdul Ghafoor in exchange on the basis of exchange-deed dated 7-11-1995 Exh.P.W.1/2 and Mutations Nos.2787 and 2788 were entered into the Revenue Record, on 22-12-1995, therefore, the respondents were already in possession of land measuring 45 Kanals as owners having acquired the same in exchange. This position is further clarified by Jamabandi for the year 1995-96.
7. It was also argued that in the area in which the property in dispute is situated, mutation after 1946 were not attested. This position is clarified by the statement of Khurshid Ali Patwari Halqa P.W.5.
8. It was also argued that the property in dispute was though purchased by respondent on the basis of unregistered sale-deed dated 2-1-1997 and Mutation No,2823 entered on 4-1-1998 on the basis of said unregistered sale-deed. The cause of action to the petitioner/ plaintiff had accrued on the date when the mutation mentioned above was entered in the Revenue Record. If the period of limitation is counted from the said date, the suit of the petitioner was barred by time, which was rightly appreciated by the learned Additional District Judge.
9. I have heard the learned counsel for the parties and perused the record.
10. In order to prove his case petitioner/plaintiff examined Sher Rehman Patwari Halqa P.W.1, who placed on record copy of Aks Shajra Kishtwar Exh.P.W.1/1. Naqsha Tasviri Exh.P.W.1/2. He also produced Aks Shajra Kishtwar of adjacent property Exh.P.W.1/D-1. Haji Tawas Khan petitioner/plaintiff examined himself as P.W.2. He placed on record copy of the notice of Talb-e- Ishhad Exh.P.W.2/1. Postal receipt Exh.P.W.2/2 and A.D. Card Exh.P.W.2/3. Sher Ali appeared as P.W.3.
He had informed the petitioner/plaintiff about the sale in question and was attesting witness of notice Exh.P.W.3/1. Abdur Rehman was examined as P.W.4. He was also marginal witness of notice of Talb-eIshhad Exh.P.W.3/1. Khurshid Ali Patwari Halqa Kopar was also examined as P.W.5. He placed on record Jamabandi for the year 192425 Exh.P.W.5/1. Jamabandi for the year 1924-25 with regard to Khasra Nos.337/338 was exhibited on record as Exh.P.W.5/2. Jamabandi for the same years with regard to Khasra Nos.341/342 was placed on record as Exh.P.W.5/3. Copy of Mutation No,2692 Exh.P.W.5/4. Copy of Khatoni Exh.P.W.5/5. He also placed on record photocopy of Mutation No . 2787 Exh. P .W .5/D-1. Fard Patwar No . 2823 Exh. P .W . 5/D-2, Mutation No,2822 Exh.P.W.5/D-3, Fard Jamabandi for the year 1924-25 with regard to Khasra Nos.343/344 Exh.P.W.5/D-4 and copy of Khatoni Exh.P.W.5/D-5.
11. In rebuttal Fazal Hussain examined himself as D.W.1. He placed on record copy of unregistered deed Exh.D.W.1/1, through which property in dispute was purchased in 1997, copy of exchange deed Exh.D.W.1/2. Abdul Ghafoor was examined as D.W.2. He was marginal witness of Exh.D.W.1/1. Dalil Khan was also examined as D.W.3. He was also marginal witness of Exh.D.W.1/1. Muhammadullah Khan was examined as D.W.4. He was also marginal witness of Exh.D.W.1/1. Aslam Khan Patwari Halqa Kopar was examined as C.W.1. The evidence of the parties was thus closed.
12. So far as the case of the petitioner/plaintiff is concerned, he claims superior right of pre- emption on the basis of contiguity. He is owner of land comprising Khasra Nos.339 and 340. This fact has been made clear by Sher Rehman Patwari P.W.1 in his examination-in-chief, who also stated that Khasra No,341 was contiguous to Khasra No,340, whereas Khasra No,342 was contiguous to Khasra No,339. It is worth mentioning that sale of the land in question took place in Khasras Nos.341 and 342. Aks Shajra Kishtwar copy of which was placed on record as Exh.P.W.1/1 depicts the same picture. It was in cross-examination that Patwari Halqa admitted that respondents/defendants were also owners of land comprising Khasras Nos.343 and 344. In order to clarify this position he had placed on record copy of Aks Shajra Kishtwar Exh.P.W.1/D-1. It was also admitted by him that the property in dispute was irrigated from the same water channel which leads through Khasra No,344, whereas Khasra No,339, had been converted into Abadi and was solely owned by the petitioner/plaintiff. Not only the statement of Patwari Halqa but the statement of Haji Tawas Khan petitioner/plaintiff and that of Fazal Hussain defendant/respondent proved that the parties were owners in the contiguous land.
13. The respondents/defendants in their written statement have taken up the plea that they were owners in the suit Khasra Numbers on the basis of exchange deed dated 7-11-1995 and Mutations Nos.2787 and 2788 had been entered in their favour. The question that requires consideration at this stage is as to whether the respondents/defendants were owners in Khasras Nos.341/342 on the basis of exchange deed dated 7-11-1995 or they were in possession in the said property as tenants prior to their purchase. The burden to prove this fact was upon the respondents/defendants, which they failed to discharge in accordance with law. No doubt Fazal Hussain D.W.1 in his statement recorded before the Court stated that respondents/defendants Nos.1 and 2 had exchanged 4 Kanals of land with respondent/defendant No,3 on the basis of exchange deed dated 7-11-1995 on the basis of which Mutations Nos.2787 and 2788 were entered in their names on 22-12-1995 and copy of the said exchange deed was also placed on record as Exh.D.W.1/2 subject to objection by the other side. The respondents/defendants failed to produce the scribe of the said exchange deed (Exh.D.W.1/2) Abdul Ghafoor from whom land measuring 4 Kanals was allegedly obtained in exchange by the respondents/defendants was examined as D.W.2, but this witness failed to mention as to which property was given in exchange to him by respondents/defendants. Although he stated that the marginal witnesses of exchange deed and the sale-deed were different, but he did not remember the marginal witnesses of the deed. Neither any document with regard to the property obtained by him in exchange was produced nor any witness was examined to prove that Abdul Ghafoor was given which land in lieu of land measuring 4 Kanals. The perusal of exchange deed dated 7-11-1995 Exh.D.W.1/2 vis-a-vis sale-deed dated 2-11-1997 Exh.D.W.1/1 show that the deed-writer of both the deed was the same and he has put his stamp and given Serial No,137 on both the deeds. Moreover, the respondent/defendant Abdul Ghafoor, stated that both the deeds were scribed at Sher Garh by one person, though the property in question was situated at Wand Kopar Tehsil Dargai and it is a matter of common knowledge that there is no dearth of deed- writers at Tehsil Dargai. No reasons for writing both the deeds at Sher Garh were given and it was to avoid the test of cross-examination that deed-writer was not examined in support of exchange deed Exh.D.W.1/2 or even sale-deed Exh.D.W.1/1. The exchange deed Exh.D.W.1/2 with regard to land measuring 4 Kanals Exh.D.W.1/2 was not proved by respondent/ defendant in accordance with law.
14. The argument of the learned counsel for the petitioner that the suit filed by petitioner/plaintiff was in time has force in it. The period of limitation for filing suit under Pre-emption Act, 1987 is dealt with section 31 of the said Act, which reads as under:-- "The period of limitation for a suit to enforce a right of preemption 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) on which the vendee takes physical possession of the property if the sale is made otherwise than through 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 (c).
15. In the case in hand the sale in question admittedly took place through unregistered sale-deed.
Mutation No,2823 was "entered" on 4-1-1998, but the same has not been attested till date. The period of limitation as per section 31 (ibid) Act would start from the date of F "attestation" of mutation if the sale was made otherwise than through registered sale-deed. The august Supreme Court of Pakistan in Gharib Shah and others v. Zarmar Gul PLD 1984 SC 188 while elaborating the word "attestation" held:-- "The word attestation used in section 31 is not the attestation by the vendors. It is the 'attestation of 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 Preemption Act. The order passed on 28-12-1974 as it shows, was not final. It was yet to be followed by another order. He was to make the attestation as Revenue Officer after the proclamation {{URDU TEXT}}( AF-41 ) mentioned therein. The use of words {{URDU TEXT}}( 4:41 ) and {{URDU TEXT}} 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. Similarly in Tajul Mulk v. Mst. Zaitoon Bibi and 3 others PLD 1994 SC 356 the august Supreme Court of Pakistan held:-- "Where statement of vendor was recorded prior to attestation of mutation and payment of sale consideration was admitted in such statement, cause of action would accrue to pre-emptor on the attestation of mutation, which was the final order of completion of sale."
17. Gaining wisdom from the above quoted judgments of august Supreme Court of Pakistan same view was taken by this Court in Gul Rehman and another v. Muhammad Ismail 2003 YLR 95 in which it was held:- "Even if for the sake of arguments it is presumed that the settlement between the parties was reached in the year 1987 even then the cause of action would accrue to pre-emptor on the attestation of mutation which was final order of completion of sale transaction. Reliance in this regard can be safely placed on judgments in Gharib Shah v. Zarmar Gul PLD 1984 SC 188 and Tajul Mulk v. Mst. Zaitoon Bibi and 3 others PLD 1994 SC 356."
18. Keeping in view the dicta laid down in the afore-quoted judgments ' it can be safely held that the case of the petitioner/ plaintiff would fall under subsection (d) of section 31 of the Preemption Act, 1987 i,e, the period of limitation shall start from the date of knowledge of the pre-emptor because the sale of the property in dispute was neither made through registered sale-deed now any mutation was attested.
19. So far as possession of the respondent/defendant is concerned, it is admitted position that they were already in possession of the land in question being tenants. The plaintiff/petitioner claimed to have gained knowledge of the sale in question on 22-1-1999 through Sher Ali. He there and then made Talb-e-Muwathibat, served notice of Talb-e-Ishhad Exh.P.W.2/1 on 25-1-1999, therefore, the suit filed by the petitioner/ plaintiff was, therefore, within time.
20. The argument of the learned counsel for the respondent that original notice was not sent and only photostat copies were served, therefore, his suit deserved dismissal has no force at all. The perusal of the written statement shows that this plea was not taken by the respondents in the written statement. The plea taken by them with regard to notice of Talb-e-Ishhad was that no notice was served upon them. No such objection was taken when notice of Talb-e-Ishhad was placed on record as Exh.P.W.2/1. It is by now settled law that once document is admitted in evidence without any objection from the other side, objection against its admission cannot be allowed at appellate stage what to speak H of raising such objection at revisional stage. Reliance in this regard is placed on Malik Din and another v. Muhammad Aslam PLD 1969 SC 136, Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140, Muhammad Akram v. Syed Imrao Ali Shah 1988 CLC 2228; Abdul Hamid v. Muhammad Zamir and 2 others 1990 M LD 1617, National Bank of Pakistan v. Said Mir 1987 CLC 1103 and Sher Bahader and others v. Mir Akbar and others 2004 CLC 1348. The respondents even did not take up this objection in the memorandum of their appeal. The respondents, therefore, cannot be allowed to take up such plea for the first time at this revisional stage. The judgments produced by the learned counsel for the respondents that he can reopen the case have no application to the case in hand because those judgments are with regard to reopening the case in appeal.
21. The above discussion leads me to the irresistible conclusion that the learned Appellate Court has not only failed to appreciate the evidence available on record, but has also not applied proper law application to the case in hand, whereas the judgments of the learned trial Court is based on cogent reasons and appreciation of evidence. I, therefore, set aside the impugned judgment, dated 3-4-2002 passed by the learned Appellate Court and restore that of the learned trial Court dated 8-9-2001. There shall be no order as to costs.