' QAISER RASHID KHAN, J.---Brief and essential facts leading to the instant revision petition are that the respondent/plaintiff namely, Haji Sher Akbar Khan filed a suit against the petitioners/defendants namely; Hamidullah and two others for possession through preemption in respect of the land fully detailed in the heading of the plaint, sold through Mutation No,3482 attested on 15-1-2010 for a sale consideration of Rs,2050 but an inflated amount of Rs,20,000 was entered in the mutation to defeat the right of pre-emption of the respondent/plaintiff. According to the respondent/plaintiff, he came to know about the suit transaction on 27-4-2010 at 0500 hours in his house through one Mir Askar Khan and there and then, he declared his intention to pre-empt the suit land. It is further averred that on 7-5-2010 the respondent/plaintiff sent notices of Talb-e- Ishhad to the petitioners/ defendants attested by two witnesses as per the requirement of section 13 of the N.-W.F.P Pre-emption Act, 1987.
2. On being summoned, the petitioners/defendants put appearance before the learned trial Court and filed their written statement. They also moved an application under Order VII Rule 11 C.P.C. For rejection of the plaint of the respondent/plaintiff. The said application was contested by the respondent/plaintiff by filing his replication. After hearing the arguments of learned counsel for the parties, the learned Civil Judge, Paharpur, D.I.Khan dismissed the application vide order dated 17-2- 2011.
3. Aggrieved of the order dated 17-2-2011, the petitioners/defendants filed Civil Appeal No,1 of 2011.
After hearing the arguments of learned counsel for the parties, the learned Additional District Judge, Paharpur D.I.Khan dismissed the appeal vide his judgment dated 25-4-2011, hence the instant revision petition by the petitioners/defendan.
4. Learned counsel for the petitioners argued that before the performance of Talbs and institution of the present suit by the respondent/plaintiff, the petitioners had transferred the suit land by way of Tamleek in favour of Muhammad Khan etc. Through Mutation No,3543 dated 13-2-2010 and thus they have got no concern with the suit property and on this score, the plaint was liable to be rejected under Order VII, Rule 11, C.P.C. But the learned courts below failed to appreciate this aspect of the matter and wrongly dismissed the application of the petitioners moved under. Order VII, Rule 11, C.P.C.
5. Conversely, the learned counsel for the respondent/plaintiff defended the impugned judgments/ orders and argued that Mutation No,3543 dated 13-2-2010 vide which the suit land has been allegedly transferred to Muhammad Khan etc. Finds no mention in the Revenue Record and has been introduced to ward off the right of pre-emption of the respondent/plaintiff.
6. Arguments heard and record perused.
7. As per the record, the respondent/plaintiff has filed the pre-emption suit by challenging the sale which has taken place through Mutation No,3482 attested on 15-1-2010. It is the contention of the petitioners/ defendants not only in their written statement but also in the application moved by them under Order VII, Rule 11, C.P.C. That they had transferred the suit-land to three sons of the petitioners namely Muhammad Khan son of Hamidullah, Muhammad Yousaf son of Ikramullah and Muhammad Abdullah son of Iftikhar Ahmad through Tamleek Mutation No,3543 attested on 13-2- 2010 and the respondent/ plaintiff has neither challenged the subsequent Mutation No,3543 nor performed any Talbs with regard to the said mutation and thus their suit is not maintainable.
Though the respondent/ plaintiff has denied the existence of Mutation No,3543 dated 13-2-2010 but its attested copy has been annexed with the revision petition whereby the suit land has been transferred in the name of Muhammad Khan etc. As per the version of respondent/plaintiff, he got knowledge of the transaction in favour of the petitioners/ defendants on 27-4-2010 and the subsequent mutation was attested on 13-2-2010 i,e, 1-1/2 months prior to the knowledge of the respondent/plaintiff and thus he should have pre-empted the subsequent mutation as the previous sale had become non-existent. Both the learned courts failed to appreciate this aspect of the case and erred in dismissing the application of the petitioners/defendants for rejection of plaint under Order VII Rule 11, C.P.C.
8. For the reasons mentioned above, i.e instant revision petition is accepted, the impugned judgments/orders dated 25-4-2011 and 17-2-2010 of learned Additional District Judge and learned Civil Judge, Paharpur, D.I.Khan are set aside and on acceptance of the application of petitioners/ defendants for rejection of plaint, the plaint filed by the respondent/plaintiff is hereby rejected under Order VII Rule 11 C.P.C. No order as to costs.