MAZHAR ALAM KHAN MIANKHEL, J.---Petitioner herein has sought for issuance of an appropriate writ by declaring the judgment/orders dated 15-4-2004 of Additional District Judge, Nowshera whereby civil revision of present petitioner against the judgment/ order of Senior Civil Judge, Nowshera dated 29-1-2004 was dismissed, to be unlawful, illegal, without lawful authority and jurisdiction having no legal effect against the rights of the petitioner.
2. This case has a chequered history. A sale mutation was pre-empted by one Gul Mast son of Amir Hatam and one Ghulam Habib, the rival pre-emptor. Out of the entire sale, half of the area i,e, 5 kanals, 1 marla of three Khasra numbers i,e, 216/2, 856 and 852 was decreed in favour of said Gul Mast pre-emptor vide judgment and decree dated 18-12-1973 of Civil Judge, Nowshera against a sale price of Rs,6030 and the pre-emptor was directed to deposit the balance amount of Rs,1030 as he had already deposited Rs,5,000 as pre-emption money. The remaining entire suit property was decreed in favour of Ghulam Habib, the rival pre-emptor, for a sum of Rs,23970 and he was also directed to deposit the balance of Rs,12970 as he had already deposited Rs,11,000 as a pre-emption money.
3. Gul Mast feeling himself aggrieved filed an appeal before District Judge, Nowshera. Whereas Ghulam Habib failed to deposit the balance decretal amount and also did not challenge the judgment and decree of the trial Court in appeal. The appellate Court while allowing the appeal of Gul Mast, decreed the remaining half of the above said three khasra numbers against a total decretal amount of Rs,12060 vide his judgment and decree dated 16-1-1976 whereagainst the pre- emptor and the .vendees also filed their respective civil revisions i,e, C.R. Nos. 168 of 1976 and 131 of 1976 but both the civil revisions of the pre-emptor and the vendees were dismissed vide- a single judgment of this Court dated 6-4-1983.
4. After that the pre-emptor i,e, Gul Mast died and the present controversy between the parties started when the petitioner being his sole legal heir moved an application dated 7-2-2003 for deposit of Rs,12970 as decretal amount and accordingly with the permission of Court he deposited the same but the Court of Senior Civil Judge, Nowshera also summoned the vendee/defendants who contested the said application by submitting their reply and vide judgment/order dated 29-1- 2004, the learned Senior Civil Judge, Nowshera dismissed the application of deposit of pre- emption amount. The said judgment/ order of Senior Civil Judge was 'again challenged through Civil Revision before the District Judge which was sent to the Court of Additional District Judge-II, Nowshera who vide his judgment/order dated 15-4-2004 also dismissed the same, hence present writ petition.
5. The learned counsel for the petitioner contended that as per observations of this Court while deciding the civil revisions' ibid no proper decree sheet was executed by the trial Court as well as by the appellate Court at the time of decision of pre-emption suits as well as appeal there against in accordance with the provisions of Rule 14 of Order XX, C.P.C. and no specific directions regarding payment of pre-emption amount were also ' made by this Court vide its judgment dated 6-4-1983 in the above said two revision petitions, so in this view of the matter, the petitioner being sole legal heir of the pre-emptor, had moved the Court for deposit of decretal amount as by that time he was unable to locate any receipt regarding said deposit by the pre-emptor himself. However, before filing of instant petition, he got the photocopy of the receipt of deposit of pre-emption amount as per directions of the learned Court of, appeal while allowing the appeal of the pre-emptor Gul Mast vide judgment and decree dated 14-2-1976. So, the present application moved by the petitioner was nothing else but a precautionary measure to deposit the decretal amount. He further submitted that the Courts below have not appreciated the record and law in its true perspective as the deposit of pre-emption amount by the preemptor is fully established on the record and as such have failed to exercise their jurisdiction vested in them by dismissing his application as well as revision there against.
6. As against that, the learned counsel for the vendee/respondents submitted that the petitioner failed to raise the plea of deposit of pre-emption amount by the preemptor himself and he under the law cannot raise any new ground/point in its constitutional petition. He further submitted that this Court while deciding the constitutional petition cannot intervene to decide a disputed question of fact. He further submitted that this being a factual controversy which cannot be adhered to in the constitutional petition and requested for dismissal of instant petition.
7. We have heard the learned counsel for the parties and have gone through the record of the case. The original record of the pre-emption case was also requisitioned which too was perused.
8. The record of the case would reveal that the pre-emptor Gul Mast had deposited the decretal amount/pre-emption amount as per directions of the trial Court regarding decretal of half of the area of Khasra Nos.216/2, 852 and 856. On acceptance of his appeal, the remaining area of the above said khasra numbers was also decreed in his favour against the similar decretal amount determined by the trial Court and for rest of the property, his suit was dismissed as he had no right of pre-eruption for the same.
9. The record of the case would further reveal that the pre-emptor during his lifetime had also deposited the decretal amount within stipulated time for the remaining area decreed in his favour by acceptance of his appeal for which he had moved the trial Court vide his application dated 20- 1-1976. The office was asked to report on the same vide order of the Court dated 26-1-1976 and then' Moharrir submitted his report dated 28-1-1976 that the pre-emptor had already deposited Rs,6030 in the trial Court and he wants to deposit the balance decretal amount i,e, Rs,6030. The Court then on 29-1-1976 directed the pre-emptor to deposit the amount of Rs,6030 in the light of order of appellate Court dated 16-1-1976. A further entry with red ink on said application by the Civil Nazir of the Court that said amount of Rs,6030 was deposited prior to the date i,e, 14-2-1976 given in the judgment of appellate Court. So, under the law, the pre-emptor deposited the entire pre- emption amount as per direction of the trial court as well as court of appeal.
10. In the given circumstances, it transpires that the present petitioner being the real brother and sole legal heir of Gul Mast pre-emptor was not in the knowledge of deposit of decretal amount and he to be more conscious of the fact moved present application to the trial Court and once again deposited an amount of Rs,12970 which too reflects his bona fide intention in this regard.
11. Now the question requiring consideration by this Court is as to what would be the legal effect of the fact that record of the case reveals the payment of decretal amount by the pre-emptor himself and also what would be effect of subsequent payment in the name of pre-emption amount by the petitioner.
12. The original record of the case confirms the fact that the pre-emptor in compliance with the order of the trial Court deposited the balance pre-emption amount regarding half of the property decreed in his favour. Then after the decision of appeal in his favour and decretal of remaining area out of the above said khasra numbers, he also deposited the balance of entire decretal amount which also comes to Rs,6030 and the entire decretal amount comes to Rs,12060. The same fact is being revealed from the judicial record of the case which has got presumption of correctness in accordance with law. So, the answer to the first question would be that the judicial record has got presumption of its correctness and admissibility and this Court also can take judicial notice of the same. So, it can safely be held that the pre-emptor himself had deposited the preemption amount. Answer to the second question simply would be that the effort made by the present petitioner to deposit the pre-emption amount was nothing else but to safeguard his rights.
So, the circumstances of the case would suggest that the orders passed by the Courts below though were in accordance with law that after a specified date the pre-emptor cannot deposit the decretal amount but both the judgments/orders of the Courts below in the given circumstances, in no way affect the decrees of pre-emption passed and upheld by this Court in the circumstances.
Hence, this petition is disposed of accordingly.