1. ' MAZHAR ALAM KHAN MIANKHEL, J.--- This single judgment of mine would dispose of Civil Revisions Nos.454 and No,948 of 2010, as both the petitions arise out of the same judgment.
2. ' The respondent/pre-emptor, Taj Gul, had filed a pre-emption suit against the vendee/defendants, present petitioners, which was decreed in his favour but the vendees were held entitled for improvements made in the suit property to the tune of Rs,13,70,665/- vide judgment and decree dated 6-9-2008 of the Civil Judge-XI-I, Mardan. The vendee/defendants filed their appeal against the same whereas the present petitioners filed their cross-objections against the findings of the trial Court rendered on Issue No,7 with regard to improvements. The appeal was allowed and cross-objections were dismissed vide common judgment dated 21-5-2009 by the District Judge, Mardan. The pre-emptor Taj Gui filed Civil Revision No,485 of 2009 before this Court, which was allowed vide judgment dated 22-12-2009 by holding that performance of talbs by the pre-emptor was in accordance with law. Since, findings on other issues were not given, so the case was remitted back to the Court of appeal with the direction to decide the appeal afresh. After remand of the case, the learned appellate Court dismissed the appeal of vendee/defendants whereas the finding of the trial Court on issue No,7 with regard to cost of improvements was dismissed. Hence present revision petitions.
3. ' The vendee/defendants have filed instant Revision Petition No,454 of 2010 whereby they have challenged the concurrent findings of grant of pre-emption decree in favour of Taj Gui, pre-emptor and the pre-emptor, has filed his own Revision Petition bearing No,948 of 2010 by challenging the findings on Issue No,7 of the Courts below.
4. ' Learned counsel for the petitioners (vendee/defendants, hereinafter called petitioners) confined his submissions only with regard to superior right of pre-emption of the pre-emptor, the waiver of his right of pre-emption and question of limitation by submitting at the preemptor himself has admitted that he has, no landed property except the house wherein he resides, so clothing him with a right of pre-emption being co-owner in the suit property is against the record. He further submitted that the pre-emptor in his own statement admitted that he was present before the Revenue Officer at the time of attestation of mutation, so his such presence has made him to waive his right of pre-emption. He next contended that it has been established on the record that sale of the impugned property was completed much before the attestation of mutation and possession of the same was also delivered to the vendees, which under the law is a notice to the public at large including the preemptor,. So the very filing of suit by the pre-emptor is time-barred by placing reliance on Muhammad Subhan and others v. Mir Qadam Khan and others (2001 M LD 1716), Saifur Rehman and another v. Khamid Gul (1991 SCM R 916), Ghulam Nabi and another v Mst.
5. Bibi Amrezan (1995 CLC 543), Ch. Hakim Ali v. Sultan Khan and 3 others (2001 M LD 563). The learned counsel for petitioner also supported the findings of the two Courts below regarding improvements made by the vendees after purchase of the suit property.
6. ' As against that, the learned counsel for pre-emptor/respondent (hereinafter called respondent) submitted that the respondent has a superior right of pre-emption being co-owners in the suit property as established from the Revenue Record produced by the patwari halqa. He next contended that the evidence referred to by the learned counsel for petitioners in do way constitute waiver against the respondent, as at the time of attestation of mutation, he there and then declared his intention to pre-empt the suit property. As question of performance of Talbs was determined earlier by this Court and the same attained finality between the parties, therefore, question of waiver would not arise in the circumstances of the case. By further adding that the vendees have failed to prove the factum of completion of sale prior to attestation of mutation and receiving of physical possession therefrom the vendors at the time of completion of sale so, filing of pre-emption suit by the respondent after attestation of mutation was within the prescribed period of limitation. The learned counsel in support of his own revision petition against issue No,7 submitted that the question of improvements under the N.-W.F.P. Pre-emption Act (Act X of 1987) is to be proved by the vendees through cogent and reliable evidence that the same were made prior to receiving notice of 'talb-e-ishhad'. Neither such like specific evidence was produced by the vendees nor was the quantum of improvements proved by them. So, in this view of the matter, the findings of the two Courts being based on wrong assumption of law are liable to be set aside.
7. ' Learned counsels for the parties were heard and record of the case was perused. Perusal, of the record would reveal that initially suit of the pre-emptor 'was decreed in his favour and the appeal of the present petitioners was allowed by the Court of appeal but this Court in Revision No,485 of 2009 has held that the pre-emptor had performed 'talbs' in accordance with law and the case was sent back to the appellate Court to give its findings on the remaining issues as no findings were given by the District Judge while allowing appeal. The appellate Court, after the remand, declared that the pre-emptor has got the superior right of pre-emption being co-owner in the suit property.
8. The findings of the appellate Court in this regard are in accordance with the available record. The patwari halqa in his statement has also categorically stated that the pre-emptor is a co-owner in both the suit khatas. The perusal of Exh.PW1/1 to Exh.PW1/3 would establish the above fact. So, such a categoric statement and the Revenue Record available on the file is sufficient to hold that the pre-emptor has got the superior right of preemption. So, the said concurrent findings of the Court of appeal on question of right of pre-emption would call for no interference.
9. As far as question of waiver is concerned, to my opinion, the evidence. Of the pre-emptor, referred to by the learned counsel for the petitioner, would not constitute waiver as mere his presence at the time of attestation of mutation would not be sufficient to constitute waiver specially when he at that moment just after getting knowledge of the sale, declared his intention to pre-empt. Question of waiver can only be pressed against pre-emptor when he actively takes part in completion of sale. Mere presence at the time of attestation of mutation can in no way be termed as a waiver of right of pre-emption. Yes, he would have been on the looser end, had he failed to perform `talb-e- muwathibae at the time of getting knowledge of the impugned sale. In that situation he not only had waived rather he would have extinguished his right of preemption. So, the submissions of the learned counsel in this regard have no legal footing.
10. ' As far as question of limitation is concerned,. That too appears to have been resolved in accordance with the material available on the record and the law. To succeed in their assertions, the vendees were required to prove factum of completion of sale prior to attestation of mutation besides getting the physical possession of the property at that time. The sale is completed the moment when transfer of ownership of an immoveable property takes place in exchange for a consideration as defined in section 2(d) of Act X of 1987, which is hereby reproduced as under:--- "2(d) "Sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of `hiba bil-iwaz' or 'hiba ba shart-ul-iwaz' but does not include--
(i) transfer of an immovable property through inheritance or will or gift, other than `hiba bil-iwaz' or `hiba ba-shart-ul-iwaz;
(ii) a sale in execution of a decree for money or of any order of a civil, criminal, revenue or any other Court or a Revenue Officer or any local authority'
(iii) The creation of any occupancy tenancy by a landlord whether for consideration or otherwise;
(iv) exchange of agricultural lands for better management; and
(v) transfer of an immovable property for a consideration other than valuable consideration, such as the transfer of an immovable property by way of dower or composition in a murder or hurt case."
11. A look at the above quoted definition of sale would reveal that it has no concern with the attestation of mutation or registration of the sale-deed. Sale even can be an oral one. The provisions of section 30 of Act-X of 1987 are only for the purpose of reckoning the period of limitation which would start from the date of attestation of mutation, registration of the sale-deed or from the date of taking over the physical possession of the property. Yet another mode for start of limitation period provided in the above section is the date of knowledge. When the above three modes of completion of sale are not available and it is simply a sale even without physical possession. So, attestation of mutation has got no relevance with the completion of sale. My this view is further fortified by the dictum laid down by his lordship in the case of Muhammad Subhan (supra), which does not support the case of petitioners. The other case-law, cited at the bar, is also not applicable to the circumstances of this case. The record available on the file would reveal that there was no such specific evidence led by the vendees that they were put into physical possession of suit property prior to attestation of mutation. Although after entering of mutation, the same was attested with a considerable delay and for that matter there could be many reasons.
12. Such a belated attestation of mutation per se would not constitute evidence of sale prior to attestation of mutation. So, mere alleging a fact of completion of sale prior to attestation of mutation would not ipso facto mean to have been proved.
13. As far as the question of improvements as held by the two Courts below is concerned, that too requires to be proved by the vendees. Under section 21 of the Act X of 1987, a vendee would only be entitled claim improvements in the suit property, if the same have been made by him prior to receiving notice of ' talb-i-ishhad' under section 13(3) of the Act ibid. The evidence on the record is deficient to this effect whether the built-up property was constructed by the vendees themselves or it was already existing in the suit property and the impugned sale of the land was made with its appurtenances attached to the same. Similarly, planting of trees in the suit property by the vendees has also not been proved. When the vendees have failed to prove their improvement with specific dates and time, then they cannot be held entitled for compensation of the improvements.
14. Any built-up property and the trees in the circumstances would be presumed to be existing at the time of sale just t avoid further complications in the case. Had it been their case That they made constructions/ improvements with the permission of the Court on their own risk and costs then in that case they would have been entitled to remove or forego the same. Now in the circumstances they have to surrender all what they received in sale.
15. ' As a sequel to what has been discussed above, C.R. No,454 of 2010 is dismissed whereas C.R.
16. No,948 of 2010 is allowed by setting aside the findings of the two Courts below with regard to Issue No,7.