' This civil revision calls in question the judgment of the learned Additional District Judge dated 8-7- 1997, whereby he allowing the appeal of the respondents dismissed the suit of the petitioner for possession through pre-emption.
2. The petitioner filed a suit for possession through pre-emption in respect of land fully detailed and described in the head note of the plaint. The respondents entered appearance and resisted the suit by filing the written statement. Necessary issues were framed. Both the parties produced their respective evidence. The learned trial Court vide its judgment dated 8-5-1995 decreed the suit in favour of the petitioner. The respondents preferred an appeal before the learned Additional District Judge, Attock, who vide his impugned judgment and decree allowed the appeal and dismissed the suit. The petitioner assails the aforesaid judgment and decree by way of this civil revision.
3. Learned counsel for the petitioner contends that the sale for all intents and purposes took place on 17-3-1993, when the consideration amount was paid and statements were recorded. The sanctioning of mutation later on 28-4-1993, will have no bearing. He placed reliance on cases of Jangi v. Jhanda and others PLD 1961 (W.P.) B.J. 34; Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 and Khurshid Ahmad and 4 others v. Syed Akhtar Hussain Gilani and 4 others PLD 1991 SC 1070.
4. On the other hand, learned counsel for the respondents urged that the learned District Judge has correctly concluded that "Talbs" were made prior to the sanctioning of mutation, hence the same is of no legal consequence. He relies on Fazal Rehman and others v. Abdul Qayyum 1996 SCM R 1201.
5. I have heard the learned counsel for the parties and perused the record.
6. Section 13 of Punjab Pre-emption Act, 1991 provides that the right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order namely:--
(a) Talb-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-iKhusumat.
7. Subsection (2) of section 13 provides when the fact of sale comes within the knowledge of pre- emptor through any source he shall make Talb-i-Muwathibat. Sale has been defined under section 2(d) which is reproduced below as under:-- "Sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of Hiba-bilIwaz or Hiba-ba-Shrt-ul-Iwaz but does not include;()
(i) .
(ii) .
(iii) .
8. The controversy requiring resolution in this case is as to when sale took place. The law cited by the learned counsel for the petitioner is examined as under:-- PLD 1961 (B.J.) 34.
' In this case the question arose as to when the sale of land shall be deemed to have been completed was answered in the following words:- "When a mutation is sanctioned with regard to sale of land, it is either on the basis of an oral sale or sale by a deed, and I am clear in my mind that as far as the sale goes it shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the Revenue Records was sanctioned about it. It is true that for purposes of making the period of limitation run with regard to a suit for pre-emption, the date of attestation of the mutation in the Revenue Records is taken into consideration by reason of the relevant provision of the Punjab Pre- emption Act, 1913 which was in force in the Bahawalpur State at the relevant time, but I am clear in my mind that the title in the property passes when the transaction of sale is completed and is not postponed till the attestation of the mutation in the Revenue Records."
PLD 1967 SC 411.
' The Honourable Supreme Court after review of various decisions mentioned in this pronouncement recorded definition of sale:-- "This definition of sale is obviously wider than the one under section 54 of the Transfer of Property Act, for it is not governed by the restrictions as to the mode of transfer contained in the latter section. It cannot, therefore, in view of this definition, be said that if a sale of property exceeding the value of Rs,100 is made by a mutation entered in the Revenue Records such a sale is altogether void. This method of transfer by mutation in the Revenue Records was certainly recognized in the Punjab to which the Punjab Pre-emption Act originally applied, as a valid method of transfer of agricultural land. Thus, if the parties entered into a transaction in a form recognized by this law can it be argued that they nevertheless did not intend the transaction to be governed by the incidents attaching thereto under that law. The intention of the parties is further manifested in the present case by the fact that even now the parties to the transaction not only do not repudiate the sale but actually admit its validity."
PLD 1991 SC 1071.
' The Honourable Supreme Court while considering the question of sale held--- "The phrase 'attestation (if any) of the sale by a Revenue Officer contains the vital express "if any It implies that there can be a sale before the attestation by a Revenue Officer."
' All the afore-mentioned cases were decided under the repealed Preemption Act, 1913.
9. Sale has been defined under section 2(d) of the Punjab Preemption Act, 1991 and it has got no reference to attestation of mutation or registered deed. Section 13 of the Act makes obligatory upon a person to make a jumping demand as soon as he comes to know of the sale.
10. The case of Fazal-ur-Rehman (supra) relied upon by the learned counsel for the respondents proceeds on distinguishable facts. The question involved in the aforesaid case was with respect to limitation with reference to section 31 of N.-W.F.P. Pre-emption Act, 1987. The question of sale was not examined with reference to the provision of section 13 of the Act in regard to performance of Talb-i-Muwathibat. The sale was considered to be complete for the purpose of limitation and in the word of Honourable Supreme Court "the sale in terms of section 31 of the N.-W.F.P. Pre-emption Act for the purpose of limitation, could be complete either from the date of attestation of mutation of sale by the Revenue Officer or in case of oral sale by delivery of physical possession of such land".
11. After survey of the afore-mentioned judgments, the question to be determined as when sale had taken place in this case and whether the petitioner performed Talb-i-Muwathibat before the incident of sale.
12. On 17-3-1993, the entire sale consideration was paid and the vendor acknowledging receipt of consideration amount recorded his statement of transfer of the land in an open assembly in the Revenue Estate. The mutation was delayed for verification of Girdawar and payment of fee. It was, thereafter, attested on 28-4-1993. On this date, there is no mention of the fact that the vendor, vendee or the witnesses appeared. Instead, it contains that in view of the statement recorded on 17-3-1993, the mutation is sanctioned.
13. Say a pre-emptor is present in the village assembly and acquires knowledge that the vendor agreed to transfer the land to the vendee against payment of consideration amount and has recorded his statement before the Revenue Officer, to that effect, will still wait to perform Talb-i- Muwathibat until the mutation is sanctioned. In case of his waiting, he violates the provisions of section 13 which calls upon him to make a jumping demand on acquisition of knowledge.
14. Pre-emptor has rightly performed Talb-i-Muwathibat on acquisition of knowledge on 20-3-1993 and issued notice of Talb-i-Ishhad on 1-4-1993, though the mutation was sanctioned on 28-4-1993.
The vendees did not deny receipt of consideration amount and statements recorded on 17-3-1993, for transfer of the suit-land.
15. The sale was thus, complete in all respects on the day when statements of the parties to the transaction was recorded by the Revenue Officer. Terminus quo for the purposes of Talb-i- Muwathibat is that knowledge of oral sale, completed on recording of statement of the vender and vendee on payment of consideration amount before the Revenue Officer and not the date of its sanction. This is correct interpretation of section 2(d) which speaks of permanent transfer of ownership of an immovable property in exchange for a valuable consideration without any reference to mutation or sale-deed.
16. In view of the above discussion, this civil revision is allowed and the impugned judgment and decree of the learned District Judge is set aside and that of the learned trial Court is restored.