JUDGMENT ATTAULLAH KHAN, J.---- Through this revision petition, petitioner has impugned the judgment/decree dated 10-7-2006 passed by learned District Judge, Tank vide which the appeal of petitioner was accepted and set aside the judgment/ decree passed by learned Civil Judge, Tank dated 11-6-2006 vide which the suit of respondent/plaintiff was dismissed under Order VII, Rule 11, C.
P. C.
2. Facts of the instant revision are that respondent/plaintiff filed a suit for possession through pre- emption in respect of chunk of land measuring 4 kanals 13 marlas comprised in Khata No.81, Khasra No.204 measuring 211 kanals, 16 marlas situated in Mauza Ama Khel and mutated in the name of defendant through Mutation No.2448 dated 9-1-2004 along with all the external and internal rights including the right of usage of the right of path, irrigation and drainage and other appendages duly sold in lieu of Rs.5,600, hence, filed a suit in the trial Court.
3. Petitioner contested the suit and filed an application for rejection of plaint of the respondent/plaintiff under Order VII Rule 11, C.P.C. The respondent/plaintiff filed replication to the application filed by petitioner/defendant and after hearing the arguments from both sides the suit was dismissed under Order VII, Rule 11, C.P.C. Vide judgment/decree dated 11-6-2005.
4. Respondent/plaintiff impugned the judgment/decree of the trial Court before the learned District Judge. Tank, who after hearing arguments of both the sides accepted the appeal of respondent vide judgment/decree dated 10-7-2006 and set aside the judgment/decree of the trial Court and remanded the case back to the trial Court for decision afresh after framing issues and affording opportunities to the parties for leading their evidence hence the instant revision petition.
5. Learned counsel for the petitioner argued that the plaint was rightly rejected by accepting the application under Order VII, Rule 11, C.P.C., as the suit was filed beyond the period of 120 days.
According to learned counsel for the petitioner for the purpose of limitation the date of attestation of mutation would be counted and not the date of knowledge. He relied upon 2004 SCM R 1941.
6. On the other hand, learned counsel for the respondent argued that the time would start from the knowledge and not from the attestation of mutation in view of 2004 SCM R 535. According to him the mutation was attested on 19-1-2004 but he got the knowledge of sale on 4-4-2005. He argued that the formalities of section 32 of the N.-W.F.P. Pre-emption Act, 1987 have not been complied with, therefore, the time would start from 4-4-2005 And accordingly the suit being filed on 20-4- 2005 is within time.
7. The crucial point in this case is that from which date the time would start. I have perused the judgment reported in 2004 SCM R 535 and 2004 SCM R 1941. In the latest judgment reported in 2004 SCM R 1941, the earlier case has been discussed and it is held that no decision on the crucial issue was finally taken. The relevant portion is reproduced below:- "Secondly, section 32 of the Act provides for certain facts which might constitute the knowledge of transaction by the prospective preemptor but the factum of knowledge by the pre-emptor has already been covered under clause (d) of section 31 of the Act which provides that if the sale is not through registered deed or mutation or by transfer of physical possession, the pre-emptor may sue within 120 days from the date of knowledge of transaction. Such mode of knowledge provided in section 31 of the Act is rather wider in ambit that the mode of knowledge attained through the provisions of section 32. The latter section does not deal with the question of limitation but might be relevant with regard to the performance of "Talbs".
This Court, in case of Nur-ul-Haq 2000 SCM R 1305 where plaint was rejected under similar circumstances has already held in decisive terms that provisions with regard to issuance of public notice by the Registrar or Revenue Officer contained in section 32 of the N.-W.F.P Pre-emption Act has no nexus with the period of limitation prescribed by section 31 of the Act.
Reliance placed by the learned counsel for the petitioner on the case of Mian Asif Islam PLD 2001 SC 499 is not helpful, in that, though the two honourable Judges had difference of opinion over sections 31 and 32 of the Act yet the same was never finally resolved because the appeal was decided, with unanimous view, on grounds other than those involving the implication of sections 31 and 32 of the Act. In Muhammad Shah's case 2004 SCM R 535, this Court had left undecided the question of interdependence of sections 31 and 32 of the Act and had observed that it be left to he decided by the trial Court after framing issues and recording evidence. Meaning thereby, that the real question was left undecided despite the fact that this Court in Nur-ul-Haq's case (supra) had already given a verdict thereon. Had some different view of the matter been taken by the larger Bench in Muhammad Shah's case (supra), it might have changed the interpretation but as no decision on the crucial point was finally taken, that adopted in Nur-ul-Hag's case would hold the field. For reasons given in the earlier part of the judgment, we also find ourselves in agreement with the view taken in Nur-ul-Hag's case (supra) and hold that the provisions of section 31 of the Act, having no nexus with the provisions of section 32 of the Act, the instant suit is barred by time. "
8. A similar situation has been discussed in case of Maulana Nur-ul-Haq v. Ibrahim Khalil reported in 2000 SCM R 1305, it was held that in pre-emption suit a plaint was rightly rejected as the suit was brought beyond 120 days of the registration of sale-deed. The relevant portion is reproduced below:-- "There is yet another aspect of the matter to which it is necessary to refer to section 32 of the Act appears to be mandatory, in view of the expression 'shall' used therein, but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule of determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is inundatory. It was held in Niaz Muhammad Khan v. Mian Fazal Raqeeb (PLD 1974 SC 134) that as a general rule a statute is understood to be directory when it contains matters merely of direction, but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void. In Major Shujat Ali v. Mst.
Surrya Begum (PLD 1978 SC (AJ &K) 118) it was held that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory.
The provisions of section 32, of the Act being directory cannot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards."
It is further held that:-- "As regards the third contention it will be enough to say that the plaint was rightly rejected as the suit having been brought beyond one hundred and twenty days of registration of the sale-deed was time-barred and the allegation that the transaction was effected in a clandestine manner overlooks this legal position that registration of a sale-deed is a notice to public-at large. For these reasons, leave is declined and the petition is dismissed."
9. Similar point has also been decided by this Court in case of Ameen-ud-Din v. Tehsil Khan reported in 2009 YLR 2227 (Peshawar), wherein it is held that:- "Resultantly, since in the preemption suit in hand the impugned transaction was carried out through a registered deed dated 5-12-2005, the pre-emption suit should have been instituted within 120 days from the date of registration of the dee,', in view of section 31(a) of the Act, and it having been instituted on 13-9-2006, is badly barred by time. Hence, the plaint was rightly rejected by both the Courts below."
10. I also refer the case of Malik Mirza v. Matloob Ahmad and 3 others reported in 2008 CLC 1556 decided by this Court, wherein it is held that:-- "The same question came up for consideration before the apex Court in case of Maulana Noor-ul - Hag v. Ibrahim Khalik 2000 SCM R 1305 where it was held that provision with regard to issuance of public notice by the Registrar contained in section, 32 of the N.-W.F.P Pre-emption Act, 1987 has no nexus with the period of limitation prescribed by section 31 of the said Act for filing a preemption suit arising from a registered sale-deed. The explicit and mandatory provisions of section 31 of the N. -W.F.P Preemption Act, 1987 leave no room for doubt that in case of a sale effected through a registered sale-deed the period of 120 days shall be computed from the date of registration of sale-deed. The contention that if the Registrar fails to issue Public notice envisaged by the mandatory provision of section 32 of the Act, the period of limitation is to be computed from the date of knowledge by the preemptor 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 Courts cannot supply "casus omissus". A comparative study of sections 31 and 32 of the Act would make it manifest that the provision with regard to public notice by the Registrar contained in section 32 has no nexus with the period of limitation prescribed by section 31 for filing a pre-emption suit in respect of a sale transaction effected through a registered sale-deed and is meant to provide an extra source of knowledge for making "Talb-e-Muwathibat" and an alternative time frame for making "Talb-e- Ishhad" in accordance with subsection (3) of section 13 of the Act."
11. Sections 31 and 32 of the N.-W.F.P. Pre-emption Act, 1987 are clear which prescribed period of limitation for pre-emption suit as 120 days. Section 31 of the Act is 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 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 sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c).
12. From the above judgments of apex Court, this Court and provision of section 31 of the N.-W.F.P Pre-emption Act, 1987, the matter is now settled that the time would start from the date of attestation of mutation and not from the date of knowledge because the provision of section 31 of N.-W.F.P Pre-emption Act, 1987 is mandatory and independent of section 32 of the said Act. In the present case the transaction was made through mutation in view of the above provision of Pre- etnpti6n Act the period of limitation would start from the date of attestation of mutation. The date of knowledge is relevant where the sale is neither through registered sale-deed or mutation or delivery of physical possession.
13. In this case, the suit was filed on 20-4-2005 while the mutation was attested on 9-1-2004 thus the suit was filed after the lapse of some 16 months, which is hopelessly time-barred and the plaint was right rejected.
14. In the light of above discussion, I set aside the impugned judgment/decree of the lower Appellate Court dated 10-7-2006 by maintaining the judgment/decree of trial Court, dated 1-6- 2005 and resultantly, instant revision petition is accepted..