' CH. SHAHID SAEED, J.---Petitioners through the instant civil revision have challenged the judgments and decrees passed by both the courts below by way of which suit for possession through pre-emption filed by plaintiff/respondent Falak Sher was decreed to the extent of land measuring 119 kanals vide judgment and decree dated 28-6-2001 passed by the learned trial Court. Feeling aggrieved thereby the petitioners and respondent filed appeals and the learned appellate court accepted the appeal of the respondent and decreed the suit in his favour in toto, whereas appeal filed by the petitioners was dismissed on 11-3-2003. Hence this civil revision.
2. Brief facts of the case are that Mst. Taj Bibi was owner of the suit property measuring 238 kanals situated in Mouza Bareka Hittar Tehsil Minchinabad. The agreement was executed on 22-4-1983 of this land in favour of petitioners Nos.1 and 2 for a consideration of Rs,60,000 out of which Rs,40,000 was received as earnest money and the possession was handed over to the petitioners/vendees.
Taj Bibi afterwards refused to execute the sale-deed. A suit for specific performance of contract was filed as the possession was already handed over to the vendees. Taj Bibi vendor appeared along with her counsel in the court on 14-3-1990 and admitted the claim of the petitioners Nos.1 and 2 (plaintiffs). She demanded apart from sale consideration already fixed Rs,40,000 as an additional sale price of the land. Thus she was paid Rs,1,00,000 as sale consideration of the suit land. The vendor at that time admitted in her statement before the trial Court that possession of the suit land already had been given to the present petitioners/vendees. On the statement of the vendor suit was decreed in favour of the present petitioners Nos.1 and 2 on 14-3-1989 and on the basis of said judgment and decree Mutation No,527 Exh.P.5 was sanctioned in favour of the petitioners on 30-11-1989. On the same day Mutation No,526 was also sanctioned and Falak Sher respondent filed a suit for specific performance of contract against the vendor Mst. Taj Bibi and on the basis of decree obtained by him Mutation No,526 was sanctioned in his favour on 30-11-1989.
The respondent claimed his superior right of preemption on the basis of Mutation No,526 sanctioned and filed the suit for possession through pre-emption on 30-1-1990.
3. Petitioners/defendants contested the suit on the grounds that suit was barred by time. The pre- emption law was not existing at the time of filing the suit because that was an interregnum period and respondent has no cause of action as the requisite talabs were not fulfilled and the respondent did not possess the superior right of pre-emption on the ground that Mutation Nos.526 and 527 in favour of the petitioners and respondent was sanctioned on the same day. Thus the petitioners got knowledge on the same day.
4. Out of the pleadings of the parties the learned trial Court framed 10 issues including relief.
Thereafter both the parties were directed to adduce their oral as well as documentary evidence.
The learned trial Court after recording the oral as well as documentary evidence of both the parties and also hearing the arguments decreed the suit of the respondent to the extent of 119 kanals as stated above out of total land measuring 238 kanals.
5. Learned counsel for the petitioners contends that the judgments and decrees of both the courts below are liable to be set aside being illegal and unlawful and contrary to law; that the Mutation No,527 Exh.P.5 sanctioned on 14-3-1989 in favour of petitioners is based upon the decree for specific performance of contract. The petitioner No,2 filed an application under Order XLI, Rule 27, C.P.C.
Before the appellate court for permission to produce the said judgment and decree but the appellate court dismissed the same on 29-5-2002. Those documents as contended were necessary for determination of the controversy between the parties. That petitioners again filed an application under section 151, C.P.C. For re-calling the order made in application under Order XLI, Rule 27, C.P.C. Learned counsel further contends that the said application was not decided by the appellate court and permission was not granted to adduce the additional evidence thus appellate court committed gross illegality. That the statement of Mst. Taj Bibi and the decree in favour of the petitioners dated 14-3-1989 were very much necessary to be allowed to produce as additional evidence; that the respondent has also no case because limitation started from 14-3-1989 when the decree was passed in favour of the respondents/vendees and the suit of the respondent is badly time barred. He relied upon the cases of 1994 CLC 52, 2010 CLC 740, 2001 M LD 1716 Peshawar, 1996 M LD 1706, PLD 1992 SC, 811, PLD 1992 SC 1778, 1991 SCM R 1232 PLD 1991 SC 1981 and PLD 2007 SC 302.
6. On the other hand learned counsel for the respondent vehemently opposed the contentions raised by learned counsel for the petitioneRs, He argued that once application under Order XLI, Rule 27, C.P.C. Was rejected there was no need to discuss application which was filed under section 151, C.P.C. To re-call the earlier order made by the appellate court wherein additional evidence was not allowed. He further contended that the suit is within time because the mutation was sanctioned on 30-11-1989 and the suit was filed on 30-1-1990 within 90 days and the explanation of the petitioners is unfounded. However during the arguments learned counsel for the respondents frankly stated that he has no objection if this court considers the evidence which had to be produced by the petitioners through additional evidence. However he stated that Taj Bibi never was produced in the court. There are concurrent findings on the point of limitation and on facts and prayed for dismissal of the instant civil revision.
7. Arguments heard. Record perused.
8. It is evident from the record that application for additional evidence was made by the petitioners but the same was dismissed on 29-5-2002. Thereafter the petitioners filed another application under section 151, C.P.C. For recalling of the order dated 29-5-2002 and it was maintained by the learned appellate court that the same shall be decided with the main appeal but without deciding the said application the appeal of the respondent was accepted and suit of the respondent was decreed in toto even in the impugned judgment there is no mention regarding the said application and the documents which the petitioners intended to produce in the court for just and final decision of the suit. The vendees got the decree on 14-3-1989 and possession was given to them on the same day when the decree was passed. Admittedly the suit was filed during the interregnum period when there was a decree passed on 14-3-1989 in favour of the vendees in the suit for specific performance which was based on agreement to sell. Taj Bibi vendor made a statement before the court in the said suit. Her statement was very much important for the dismissal of the suit in hand. She gave the conceding statement that possession had been given to the vendees then there was an interregnum period the limitation would be four months and not one year. Thus the courts below ignored this aspect of the case and decreed the suit without considering the material on record, hence, committed illegality. Application under Order XLI, Rule 27,. C.P.C. Was not allowed and further appellate court did not discuss the application under section 151, C.P.C. In its judgment which is an illegality on the part of the court because the appellate court was bound to adjudicate upon the matter under the law taking into consideration all the aspects of the case. I am of the considered view that there was no need to produce Taj Bibi as witness when certified copies of the decree passed in suit for specific performance along with her statement were on the record. Appellate court by not considering the said documents failed to exercise its jurisdiction which was necessary to deliver the complete and comprehensive decision.
9. Admittedly the partition of the Khata was made on 5-4-1993. Therefore at the time of the institution of the suit obviously the respondent was co-owner but at the stage of decision of the suit i.e. 28-6-2001 he was not co-sharer in the property. This fact has been admitted by the learned counsel for the respondent that the Wanda of the land took place on 5-4-1993 however the trial Court passed the decree on 28-6-2001. There are three conditions which the pre-emptor has to be fulfilled regarding his status i.e., the date of sale, date of institution of suit, and the date of decree by trial Court. Where at any of three stages, pre-emptor was denuded of his superior qualification asserted by him, he must lose. Pre-emptor who was once a co-sharer in the land in question, A but had ceased to be so, at any of the said three stages by partition or otherwise of joint property could not be deemed to be a co-sharer for purposes of pre-emption and, therefore, could not claim preemption on that score. Thus at the time of the decree the pre-emptor lost its status as co-owner in the khata. Therefore he was not entitled for the decree.
10. It was an appropriate case for exercise of power under Order XLI, Rule 27, C.P.C. For bringing on record additional evidence even court might exercise its power suo motu under the said provision of law. I have perused the statement of Mst. Taj Bibi dated 14-3-1989 on the basis of which the suit for specific performance was decreed wherein stated that she has received consideration amount and deliver the possession to the petitioneRs, Thus the limitation will start from 14-9-1989. There was only four months to file the suit for possession through pre-emption. The petitioners were given possession of the land in dispute on 14-9-1989. Thus I hold that the suit was barred by time.
Maximum period from the date of decree dated 4-3-1989 in suit for specific performance when the possession was handed over was four months. Mst. Taj Bibi vendor herself categorically stated that possession was already with the petitioners vendees. The petitioner lost its status as co-owner in the Khata as the Wanda took place prior to the decree passed by the trial Court.
11. The nutshell of the above discussion is that the instant civil revision is accepted and the impugned judgments and decrees of courts below are set aside and the suit of the respondents is dismissed. Parties are left to bear their own costs.