'SHAH JEHAN KHAN YOUSAFZAI---J. Abdul Wadood plaintiff/ respondent filed a suit against Hamidullah Khan defendant/petitioner for possession through pre-emption regarding land bearing Khasra Nos.3865, 3867, 3864 and 3866 Khata No,766 measuring 33 Kanal 11 Marla situated at Mauza Takhat-e-Nasrati as per Jamabandi for the year, 2002-2003 to the extent of 6 Kanal 17 Marla sold through sale Mutation No,6967 attested on 14-52008 -for a sale consideration of Rs,60,000. The defendant/petitioner when served with a notice appeared before the trial Court and submitted an application on 28-10-2008 under Order VII, rule 11, C.P.C. For rejection of the plaint being barred by time. It was averred in the application that the impugned sale mutation was entered on 6-5-2008 and attested on 14-5-2008 while the suit has been filed on 26-9-2008. Under section 31(b) of N.-W.F.P. Preemption Act, 1987 a suit for pre-emption is to be filed within 120 days if the sale is effected through registered deed or sale mutation from the date of registration or attestation as the case may be.
2. The trial Court after hearing the learned counsel for the parties and going through the available record found the suit on the face of it barred by time and while accepting the application of the defendant/ petitioner under Order VII rule 10, C.P.C. Dismissed the suit of the plaintiff/ respondent vide judgment and decree dated 2-12-2008. Feeling dissatisfied with the above judgment and decree of the trial Court, the plaintiff/respondent preferred an appeal which was allowed by the learned Additional District Judge, Karak at Takhate-Nasrati vide his judgment and decree dated 9- 2-2009, the judgment and decree of the trial Court dated 2-12-2008 was set aside and the case was remanded back to A the trial Court with the direction that after obtaining written statement from the defendant, framing proper issues and recording pro and contra evidence, the matter be decided on merits.
3. Dissatisfied with the above judgment and decree of the lower Appellate Court, the defendant/petitioner has preferred the instant revision petition.
4. I have heard the learned counsel for the parties at considerable length and also perused the record as well as the relevant provisions of N.-W.F.P . Preemption Act, 1987 and the case-law relied upon by them.
5. Undisputedly the sale transaction was effected through mutation No,6967 attested on 14-5- 2008. This is also not disputed that time limit for institution of pre-emption suit is 120 days and the suit was instituted on 26-9-2008 which is beyond 120 days from the date of attestation of mutation.
Learned counsel for the defendant/petitioner contended that the judgment relied upon by the learned lower Appellate Court PLD 2001 Supreme Court 499 there was difference of opinion regarding the issue of limitation though the dismissal of pre-emption suit was maintained but regarding the limitation there was difference of opinion, one view was that application of section 31 of N-W.F.P. Preemption Act, 1987 (hereinafter to be referred as the Act) in juxtaposition with section 32 of the Act, the period of limitation will run from the date of knowledge of the registered sale- deed or attestation of sale mutation provided notice for the general public regarding the sale as envisaged in section 32 of the Act is issued otherwise it shall run from the date of knowledge while in the contrary view it was observed that non-compliance of section 32 of the Act which has no bearing upon the provisions contained in section 31 of the Act, as there is no consequential effect.
6. The provisions contained in sections 31 and 32 of the Act are reproduced below:- "31. Limitation.---The period of limitation for a suit to enforce a right of pre-emption 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 the registered sale-deed or the mutation; or
(d) of knowledge by the pre-emptor, if the same is not covered under paragraph (a) or paragraph (c).
32. Notice.---
(1) The Registrar registering the sale-deed or the Revenue officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.
(2) The notice under subsection (1) shall be deemed sufficiently given if it be stuck-up on the main entrance of a mosque and on any other public place of the village, city or place which the property is situated: 'Provided that if the property is situated in a city the notice shall also be given through a newspaper having large circulation in such city.
(3) The charges for the notice under subsection (2) shall be recovered from the vendee by the Registrar or Revenue Officer, as the case may be, at the time of registration or attestation of mutation."
7. Sections 30 and 31 of the Punjab Pre-emption Act, 1991 are the verbatim copy of the afore-said sections 31 and 32 of the Act. In the case of Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 relied upon by the lower Appellate Court, there was a difference of opinion regarding effect of non-compliance of provisions contained in section 32 of the Act. One of the Honourable Member of the Bench has observed that both the sections being mandatory in nature have to be read together in conjunction of each other while the other Honourable Member of the Bench has observed that period of four months from the registration fixed by section 30 of the Punjab Pre- emption Act (may be read section 31 of N.-W.F.P. Pre-emption Act, 1987) cannot be extended because of section 31 of the said Act (section 32 of the N.-W.F.P. Pre-emption Act, 1987) as official act is presumed to have been duly and regularly performed. Time of four months will run from the date of knowledge of pre-emptor only if the sale is not under clauses (a), (b), (c) or (d) of section 30 of the Act and time cannot be made to run from the date- of Knowledge of giving public notice as required by section 31 of the said Act, in case the sale is through registration of the deed.
8. The issue regarding non-compliance of section 32 of the Act and that whether in such a situation the limitation of 220 days fixed under section 31 of the Act shall run from the date of knowledge or from the date of attestation was resolved in a case Yaqoob Khan and others v. Rafiullah Shah and others 2004 CLC 284 and it was held that pre-emption suit arising from sale effected through mutation the time for filing suit within 120 days shall run from the date of attestation of the mutation. C Issuance of public notice under section 32 of the Act has no nexus with period of limitation prescribed by section 31 thereof.
9. The apex Court in case Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCM R 1305, held that the provisions with regard to issuance of public notice by the Registrar contained in section 32 of the Act had no nexus with the period of limitation prescribed by section 31 of the said Act for filing a pre-emption suit. 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 was held misconceived. It was further observed that provision of section 32 of the Act is directory for want of a penal clause and cannot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards.
10. This Bench while disposing the case Muhammad Aqeel v. Fayaz Hussain and 2 others 1991 M LD 1506 (Peshawar) has held that suit for pre-emption which was to be filed within 120 days from the registration of the sale-deed was filed after 145 days of the registration of the sale-deed, the assertion of the pre-emptor that he has come to know of the sale transaction later on when possession of the pre-empted property was transferred to the vendee was held no excuse in the eyes of law. Concealment of sale-deed by the vendee in order to prevent the pre-emptor to exercise his right of pre-emption cannot be accepted being without substance because registration of the sale-deed was itself a notice to public in general. The contention of non- compliance of section 32 of the Act by registering authority would in last time for pre-emption being getting knowledge was repelled.
11. In view of the afore-said detailed discussion already resolved through various judgments I found the impugned judgment of the lower Appellate Court illegal, against the mandatory provisions of section 31 of the Act and the afore-said cited case-law, therefore, the same is liable to be set aside.
Resultantly, this revision petition is accepted, impugned judgment and decree dated 9-2-2009 of the Additional District Judge, Karak at Takhat-e-Nasrati is set aside and the judgment and decree dated 2-12-2008 of the Civil Judge-I, Takhat-e-Nasrati is restored. No order as to costs.