This revision petition is directed against the judgment and decree passed by the learned Additional District Judge, Peshawar, dated 20.10.2009, whereby the appeal of the present petitioner was dismissed and the judgment and decree of the learned Civil Judge dated 12.3.2009 was maintained.
2. The brief and essential facts leading to the present petition are that the present petitioner. on 11.4.2008 instituted a suit for possession exercising his right of pre-emption over property, which was sold through Mutation No. 8450 attested on 14.12.2007.
3. The present respondents on 8.10.2008 made an appearance in the trial of the case and filed his written statement alongwith an application for rejection of the plaint under Order VII, Rule 11 of CPC.
The stance taken by the present respondent was that he had vide Mutation No. 8488 attested on 11.1.2008 sold the suit property to Nisar Ahmad. Accordingly, he sought the rejection of the plaint as the sale, which was under challenge, was not in existence and had been superceded by a subsequent sale.
4. The trial Court vide judgment and decree dated 12.3.2009 accepted the application of the present respondent and rejected the plaint of the present petitioner.
5. The present petitioner aggrieved of the decision of the trial Court impugned the same in appeal, which too was dismissed vide judgment and decree dated 20.10.2009. Hence, the present revision petition.
6. The learned counsel for the petitioner vehemently argued that the Courts below had not appreciated the mandate of service of notice provided under Section 32 of the N.W.F.P. Pre- emption Act, 1987 ("Act"). The learned counsel contended that the requisite notices envisaged under Section 32 had not been complied with by the concerned officers. Accordingly, he argued that the petitioner could not be penalized for the omissions on the part of the revenue staff. He further contended that the copy of the impugned mutation was obtained on 8.4.2008 and hence the fact of a subsequent Mutation No. 8488 on 11.1.2008 was fraudulently concealed by the revenue staff and hence for their lapse and illegal actions, the present petitioner could not be deprived of his rights under the Act.
In regard to the present petition being barred by two days, the learned counsel for the petitioner contends that he has filed an application for condonation under Section 5 of the Limitation Act, 1908 ("Act" of 1908") alongwith the present petition and annexed therewith the medical certificate of the petitioner. He placed reliance on a decision of this Court titled Ghulam Rasool Vs. Haroon Khan (1996 CLC 1517).
7. The learned counsel for the respondents rebutted the arguments put forth by the learned counsel for the petitioner. He contended that the provisions of Section 32 did not in any way circumvent the period of limitation provided under Section 31 of the Act. He further contended that Section 31 was an independent provision, clearly specifying the period of limitation for exercising the right of preemption. The learned counsel relied on Din Muhammad Vs. Ibrar Hussain (PLD 2009 SC 93), Maulana Noorul Haq Vs. Ibrahim Khalil (2000 SCM R 1305), Rahim Badshah Vs. Zalia Khan etc. (2004 SCM R 1941), Yaqoob Khan Vs. Rafiullah Shah (2004 CLC 284).
In regard to the period of limitation, the learned counsel for the respondents stated that the period of limitation having been prescribed under Section 115 Code of Civil Procedure, 1908 ("CPC") made the same a 'special law' and thus in view of the provision of Section 29(2), the provisions of Section 5 of the Act of 1908 are not applicable to revision petitions. He relied on the decision of the august Supreme Court in Alladino Vs. Muhammad Shah (2001 SCM R 286).
8. The valuable arguments of the learned counsel for the parties duly heard and the relevant record has been duly considered.
9. The said issue which craves our attention is the legal import of Section 32 of the Act. What is to be adjudged is, "whether the service of notice as provided under Section 32 of the Act renders the period of limitation provided in Section 31 conditional to the said service of notices."
This Court has earlier in a case discussed this issue in Yaqoob Khan Vs. Rafiullah Shah (2004 CLC 284) and held that:-- "So far as the question of issuance of notice under Section 32 is concerned, the said question came up for hearing before the august Supreme Court of Pakistan in Maulana Nurul Haq v. Ibrahim Khalil 2000 SCM R 1305, wherein it was held:-- The next point for determination relates to the date from which the period of limitation for a suit to enforce a right of preemption arising from a registered sale-deed is to be computed. The explicit and mandatory provisions of Section 31 of the Act leave no room for doubt that in case of a sale effected through a registered sale-deed the period of one hundred and twenty days shall be computed from the date of registration of the sale-deed. 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 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 Court cannot supply 'causes omissus'. A comparative study of Sections 31 and 32 of the Act would make it manifest that the provisions with regard to issuance of public notice by the Registrar contained in Section 32 had no nexus with the period of limitation prescribed by Section 31 for filing a pre-emption suit in respect of sale transaction effected through a registered sale-deed and is meant to provide an extra source of knowledge for making Talb-i-Mowathibar and an alternate time frame for making `Talb-e-Ishhad' in accordance with sub-section (3) of Section 13 of the Act."
The above judgment relying upon the decision of august Supreme Court, clearly lays 'down that Section 31 of the Act is an independent section and in no way conditional or subservient to the provisions of service of notices provided under Section 32 of the Act.
10. The petitioner has in his suit contended that he gained knowledge of the sale on 9.4.2008 and on the same day he made his Talab-i-Muwathibat' and served the notices upon the present respondent, being his `Talab-e-Ishhad'. Finally on 14.4.2008, he moved the Court to seek his "Talab- e-Khusumat".
It is an admitted fact that on 11.1.2008, a subsequent sale of the suit property was affected whereby the present respondent sold the same Nisar Ahmad, who was not made a party to the said suit.
In the circumstances, the law has been very clearly laid down by the august Supreme Court that no suit can proceed against a vendee, who has already sold his rights in the property to another prior to the first Talab being made.
The august Supreme Court in Abdul Yamin Khan Vs. Ashrat Ali Khan (2004 SCM R 1270) has clarified this particular issue and held that:-- "From the case law on the subject in general and from that cited at the Bar, in particular. One feels no difficulty in arriving at the conclusion that, once a pre-emption suit stands instituted, a vendee is prohibited from entering into sale or resale of the disputed property. It is obvious because the lis is pending adjudication. Even otherwise, it is a matter of common sense that the provisions of Section 52 of the Transfer of Property Act would get attracted only and only when the lis is pending.
Contrary to that, in the instant case, the pre-emptor had not then instituted the pre-emption suit on 5.10.2000 when the vendee Abdul Subhan had already sold the property to Ashraf Ali Khan on 29.9.2000 vide Mutation No. 639. How by any stretch of imagination or interpretation this further sale can be brought within the four corners of the principle of lis pendens. The learned High Court has, therefore, rightly held that it was a new transaction altogether and the pre-emptor, if at all interested in pre-empting the sale should have filed a suit against the latest sale and not against the previous one. If the principle of lis pendens is wrongly applied to the sales taking place prior to the institution of suit then every purchaser shall be made bound to wait for a pre-emption suit and refrain from exercising his proprietary rights over the property purchased. The right of pre-emption, by such interpretation, cannot be so overstretched and so blown out of proportions."
The "ratio decedendi" of the above judgment has further been followed in a subsequent judgment of the august Supreme Court titled Din Muhammad Vs. Ibrar Hussain (PLD 2009 SC 93).
In view of the clear principle of law laid down by the august Supreme Court in the above mentioned cases, the decision of this Court in Ghulam Rasool Vs. Haroon Khan (1996 CLC 1517) relied by the learned counsel for the petitioner is not the correct law.
11.In the circumstances, there is no need for this Court to discuss and decide the issue of limitation.
12.. The Courts below have exercised their jurisdiction in accordance with the evidence produced and correctly appraised the same on the applicable and relevant law on the matter.
For the reasons stated hereinabove, the present revision petition fails and is dismissed.
No order as to costs.