' ABDUL AZIZ KUNDI, J.--- In a suit for possession through pre-emption and permanent injunction in respect of land measuring 3 Kanals, 8 Marlas comprising Khasras Nos.1139, 1142 Khata Khatooni No.1565/2132 situate in Mauza Charbagh, Tehsil Charbagh, District Swat, Mst. Irum Mahal defendant-respondent No.1 (vendee) along with her written statement filed an application for rejection of the plaint on the twin grounds of non-deposit of 1/3rd of Rs.4,06,000, the price entered in the sale mutation and limitation.
2. The application filed on 22-3-2005 was duly contested by Muhammad Ghaffar plaintiff- petitioner and ultimately dismissed by trial Court vide order dated 25-1-2006 holding that determination of sale consideration entered in the sale mutation is subject to proof and similarly question of limitation was held to be a mixed question of law and facts, thus requiring evidence.
3. The order of the trial Court passed on 25-1-2006 was assailed by defendant-respondent No.1 before District Judge/Zilla Qazi, Swat through Civil Revision No.48/C.R. Of 2006, which came up for hearing on 30-11-2006 before Additional District/Izafi Zilla Qazi-III, Swat and while allowing the same order impugned was set aside and suit of the plaintiff-petitioner dismissed on both the grounds urged in the application of defendant-respondent No.1, hence the present writ petition challenging the revisional order dated 30-11-2006.
4. We have heard Mr. Muhammad Taif Khan, Advocate for the petitioner and Mr. Afridi Khan, Advocate assisted by Aziz-ur-Rehman, Advocate for the contesting respondent No. 1 .
5. It was argued by learned counsel for petitioner that petitioner had in his plaint categorically stated that in spite of his best efforts he could not lay his hands upon the sale-deed and had stated the sale consideration as Rs.2,00,000 in good faith; that pursuant to Court order dated 3-1- 2005 for deposit of 1/3rd of the sale consideration as required under section 24, N.-W.F.P. Pre- emption Act, 1987 plaintiff-petitioner deposited an amount of Rs.70,000 i.e. In excess of 1/3rd of Rs.2,00,000, that the question of limitation is a mixed question of law and facts, which can be answered only after recording of evidence, more particularly when the mutation introduced in defence by defendant-respondent was subject of review and was in fact reviewed on 25-11-2004 after sanction for review was accorded by Collector; that from the date of review the suit on its face is 'within time; that it has yet to be proved through evidence that the mutation pertains to the suit-land or some other land. He accordingly argued that in view of the above it was not a fit case for exercise of revisional jurisdiction by Additional District Judge and that on acceptance of the writ petition, the same be declared to be without lawful authority and thus ineffective upon the rights of plaintiff-petitioner. He placed reliance on cases reported as 2004 SCM R 535 and PLD 2004 Pesh.
1259 to substantiate his submissions.
6. As against that, learned counsel for defendant-respondent No.1 argued that plaintiff-petitioner No.1 was in the know of sale mutation but had purposely and with mala fide intention mentioned an incorrect amount as sale consideration in order to avoid 1/3rd of the actual amount; that limitation has to be reckoned from the date of attestation of mutation as provided under section 31, Act ibid and thus the suit on its face was barred by time. Accordingly, order passed in revision was argued to be in accordance with law and did not call for interference in our constitutional jurisdiction.
' Learned counsel placed reliance on case-law reported as 2004 SCM R 1941, 2001 SCM R 543, 2004 CLC 2004 and PLD 2003 Pesh.
189.
7. We have considered the respective contentions on either side and gone through the record of the case.
8. Section 24, N.-W.F.P Pre-emption Act, 1987 makes it obligatory for the Court to direct the plaintiff- respondent to deposit in such Court 1/3rd of the sale consideration and if no sale price is mentioned in the sale-deed, then to order deposit 1/3rd of the probable value of the property.
9. In the instant case in view of the averments in the plaint, when the defendant-respondent introduced sale consideration of Rs.4,06,000 as against the one alleged by plaintiff-petitioner, the proper, appropriate and legal course for the trial Court was to have directed the plaintiff- preemptor to make up the deficiency in the said amount by a specified date. My this view is supported by the law settled by august Supreme Court of Pakistan in the cases titled as Haji Gul Nabi v. Mst. Sahib Jamala 1994 SCM R 845, Muhammad Din v. Mahboob Khan and 3 others 1993 SCM R 2325 and Shahab ud Din and 5 others V. Mir Ali Khan 2001 SCM R 543. Both the Courts thus on this question fell into a legal error. Their findings thus cannot be sustained.
10. As regards limitation, suffice it to say that the question being mixed question of law and facts, more particularly when the sale mutation was subject to review and there are a number of cutting and over-writings in it. In somewhat similar situation a Full Bench of the apex Court in the judgment reported as Muhammad Shah v. Additional District Judge, Kohat and others 2004 SCM R 535 had declared the revisional order of the District Judge and maintained by this Court in constitutional jurisdiction to be suffering from legal infirmity which could not be sustained and had restored the order of trial Court directing the parties to prove question of limitation through evidence.
11. Thus without going into further details and while getting wisdom from the law settled ' by august Supreme Court of Pakistan, the judgment/order dated 30-11-2006 passed by revisional Court is declared to be suffering from legal infirmities, which cannot be sustained and accordingly set aside. Consequently, suit is restored and remitted to the trial Court for its decision in accordance with law.
12. Plaintiff-petitioner is, however, directed to make up deficiency in the deposit of sale consideration by depositing balance of 1/3rd of Rs.4,06,000 within 30 days from the date of passing of this order, failing which revisional order would stand restored.
13. Trial Court is also directed to frame proper issues arising out of the pleadings of the parties, particularly regarding limitation and mutation in question and effect of its review etc. As well as non-compliance of provisions of section 32, Act ibid and its effect.
14. Our these findings should prejudice none in the trial of the suit. Costs to follow the events.
' Office is directed to send the record of the trial Court immediately to enable the petitioner to deposit the amount as directed above.