' The suit of which second appeal has arisen, was filed by the appellant to pre-empt the sale of land measuring 80 kanals, situate in village Fazilpur, Tehsil Rajanpur, District Dera Ghazi Khan, made in the respondent's favour by her father, through Mutation No, 2697 sanctioned on 9-10-1973, for a consideration of Rs, 17,000.
2. The respondent contested the suit and denied the appellant's superior right of pre-emption. The defence put up by him was that the suit land comprised in his tenancy and thus he had the 1st right of pre-emption. To establish his contention, he tendered in evidence the copy of the khasra girdawari for the period from Kharif 1972 to Rabi 1973.
3. The learned Civil Judge held that the appellant was proved to be the daughter of the vendor and that the respondent in his written statement did not plead any qualification. He decreed the appellant's suit on 18-6-1976. The learned District Judge, in appeal, relied on the copy of the Khasra girdawari Exh. D. 2 and maintained that the respondent was in cultivating possession of suit land as tenant from Kharif 1972 to Rabi 1973. He thus concluded that the appellant was not possessed of the superior right of pre-emption and by his judgment and decree dated 14-3-1978 dismissed the appellant's suit. She then filed a review petition wherein her main plea was that the document D. 2 was misread as it merely indicated the respondent's possession over a fraction of the suit land comprising 12 kanals only. Her contention was that the respondent's claim should have been accepted to the extent of 12 kanals only and the entire suit could not be dismissed. The review petition was disallowed on 28-2-1979. The judgment and decree dated 14-3-1978 have been assailed through this R. S. A.
4, As the appeal has been filed long after the expiry of the period of limitation, this point has to be determined first. The appeal is accompanied by an application under section 5 of the Limitation Act for condonation of the delay. The reasons mentioned therein are that the appellant moved an application before the learned District Judge on 18.3-19/8 for rehearing of the appeal, but she was directed to file review petition. Accordingly she applied for review, but the review, petition was dismissed on 28-2-1979.
' Her learned counsel further submitted that the appellant applied on 28-2-1979 for the certified copy of the learned District Judge's judgment and decree dated 14-3-1978, which was issued to her on 3-3-1979. The appeal was filed on 6-3-1979, after consulting the counsel. It has been urged that in the circumstances of the case the appellant is entitled to deduction of the period spent in prosecuting the review petition. Reliance has been placed on Shah Muhammad v. Ghutam and another (1), for these submissions.
5. The learned counsel for the respondent, on the other hand, submitted that the appeal was hopelessly barred by time and the delay could not be condoned. In his submission the appellant should have applied for the copy of the judgment and decree under appeal within the period of limitation, only then she could claim extention of time. In this respect he referred to Abdul Waheed and others v. Abdul Khalique and others (2), East and West Steamship Company v. Queensland Insurance Co. Ltd. (3) and Abdul Ghafoor and another v. Sher Ahmad and others (4).
6. I find from the record that the review petition against the judgment and decree dated 14-3-1978, was filed by the appellant in the Court of the learned District Judge on 19-3-1978, and was thus presented within the period of limitation prescribed for filing a second appeal. As observed above the review petition was dismissed on 28-2-1979 and on the same date she applied for the copies of the judgment and decree impugned through this R. S. A. {{FOOT NOTE}}
(1) PLD 1970 SC 196 2) P C D 1952 Dacca 399
(3) PLD 1960 Kar. 840 (4) PLD 1961 Lah. 366 {{FOOT NOTE}} 7, The appeal was filed in this Court within three days of the supply of the copy to her. It can hardly be denied that under Order XLVII, rule 1, Civil Procedure Code, the review petition was competent. It is a different matter that the learned District Judge declined to interfere on merits. There is substance in the submission of the appellant's learned counsel that she has been prosecuting the review petition diligently and in good faith.
' In indar Singh v. Kanshi Ram (1), it has been held that the time spent in prosecuting the proceedings in the nature of review of a judgment, should be excluded for filing the appeal against the original decree. This judgment was quoted with approval by the Supreme Court in Shah Muhammad's case. The view taken in Pakistan Rubber Products v. Joint Secretary to the Government of Pakistan and another (2), is also to the same effect. The argument advanced by the respondent's learned counsel that time can be extended only if the appellant had applied for copies of the judgment and decree within the period of limitation, had no applicability to the facts of the instant case. The findings cited by him render no support to the respondent's case. The necessity to file the second appeal arose only when her review petition was dismissed by the learned District Judge and, therefore, she could not be expected to apply for the copies in question before the date of disposal of the review petition. I feel that the appellant has been diligently and in good faith, prosecuting and her conduct does not betray any negligence. I am, therefore, inclined to hold that the appellant is entitled to the extension of time. The delay in filing the appeal is accordingly condoned.
8. Before discussing the merits of the case an objection raised by the appellant's learned counsel to the jurisdiction of the learned District Judge to hold that the respondent had the first right of pre- emption, in contemplation of para. 25 of M. L. R. 115, may be disposed of.
' His argument was that a suit based on the tenant's superior right of pre-emption could only be heard by the Collector and the jurisdiction of the civil Court was ousted. Elaborating his submissions the learned counsel urged that as such the suit was not competent before the civil Court, the plea raised by the respondent, as to his superior right of pre-emption could not have been entertained by the learned District Judge.
9. The stand taken by the learned counsel is not well-founded. In this connection reference to Mst.
Fehmida Bibi v. Mukhtar Ahmad an another (3), will provide that : "It is one thing to say that a Court has no jurisdiction to entertai a suit in respect of a particular matter and quite another that h cannot in respect of that matter raise a plea of defence in a suit which is within the competence of the Court. It is well settled in law tha though a Court may not have jurisdiction to entertain a suit I respect of a certain matter yet it is competent for the Court t entertain a plea based on that in defence, when the determination o that question is necessary for the decision of the suit itself which I within its exclusive jurisdiction." {{FOOT NOTE}} MILR 45 Cal. 94 (2) 1975SCMR 44
(3) PLD 1972 Lab. 694 {{FOOT NOTE}} ' The objection is, thus, overruled.
10. So far as the merits of the appeal are concerned, the learned counsel for the appellant forcefully urged that the respondent was a tenant in the suit land only to the extent of 12 kanals, and that, therefore, he could not be held to have the first right of pre-emption in the entire land. In his submission the suit could, at the most, be held incompetent to the extent of 12 kanals only. In this behalf, the learned counsel referred to the copy of the Khasra Girdawari (Exh. D. 2). It is discernible from this document that out of the Khasra numbers mentioned therein only Khasra No, 236/25 measuring 8 kanals forms part of the suit land. In addition to this, Khasra No, 244/8 measuring 8 kanals has also been mentioned in it. The learned counsel submitted that only a part of this Khasra number measuring 4 kanals bearing No, 8/2 was purchased by the respondent. The area cultivated by the respondent, as a tenant, thus comes to 12 kanals only.
11. The learned counsel for the respondent, in view of the entries in Exh. D. 2, could not controvert these arguments. It is thus quite obvious that the respondent's first right of pre-emption could not be extended beyond 12 kanals. It is quite clear to me that both the learned lower Courts have misread the copy of the Khasra Girdawari, Exh. D.
2. The judgment and decree of the learned first Appellate Court, therefore, cannot be upheld.
12. It is borne out from the mutation Exh. P. 5 that the sale price of Rs, 17,000 was paid by the respondent to the vendor, considering the transaction as single. There would be, thus, no difficulty in ascertaining the proportionate sale price of the land measuring 12 kanals. The price of 68 kanals in respect whereof the appellant has the superior right of pre-emption, being daughter of theyendor, thus, comes to Rs, 14,450.
13. As a result of this discussion this Appeal is accepted, the judgment and decree under appeal are modified to the effect that decree for possession through pre-emption in respect of land measuring 68 kanals, subject to the payment of Rs, 14,450, within 90 days is passed in favour of the appellant.
' In the circumstances of the case the parties are left to bear their own costs.