' MUHAMMAD DAUD KHAN, J.---This single judgment shall dispose of two revision petitions bearing Civil Revision No,510 of 2011, titled 'Arsala Khan v. Haji Ahmad Khan' and Civil Revision No,540 of 2011, titled 'Haji Ahmad Khan v. Arsala Khan', which have been sent back by the Worthy Supreme Court of Pakistan vide judgment and order in Civil Appeals Nos.79-P and 80-P of 2012 dated 2-10-2012, for decision afresh after hearing the parties.
2. Succinct but necessary facts giving rise to these revision petitions are that Haji Ahmad Khan, (hereinafter called the respondent/ plaintiff) filed a suit for possession through pre-emption against vendee Arsala Khan, (hereinafter called the petitioner-defendant), regarding his entire share or to the extent of area sold is proved. The pre-emptor in Paras. 1 and 2 of the plaint categorically averred that the vendor sold his entire share in suit Khasra No,665 and collusively shown half of his share to have been sold in favour of vendee petitioner/defendant. The plaintiff/defendant contested the suit by submitting written statement but they did not specifically replied to Paras Nos.1 and 2 of the plaint with regard to area or share sold. On divergence of pleadings, the learned trial Court framed following issues:--
(1) Whether plaintiff has got cause of action?
(2) Whether plaintiff is stopped to sue by his own conduct?
(3) Whether suit is defective in present from?
(4) Whether suit is time-barred?
(5) Whether plaintiff has superior right of re-emption?
(6) Whether plaintiff has fulfilled demands?
(7) Whether disputed land has been sold for consideration of Rs,100,000
(8) Whether plaintiff is entitled to decree as prayed for?
(9) Relief.
' During pendency of the suit, the pre-emptor applied for additional evidence with regard to the sale dated 17-5-2004, which was allowed and the pre-emptor led the evidence regarding execution of the sale-deed in which Khasra No,665 was mentioned, but the area sold was not mentioned, although boundaries of the suit property were fully described in the deed. During the course of trial, the vendee alleged that sale in his favour vide Mutation No,523 attested on 12-4- 2004 to the extent of 1/12 share area measuring 4 Kanal 18 Marla, half of the share of vendor. The petitioner/defendant also got attested another Mutation No,530 dated .10-6-2004 with regard to remaining half share of the property. The respondent/plaintiff then filed another separate suit land challenged sale Mutation No,530 dated 10-6-2004. Both the suits were tried by the trial Court independently.
3. After conclusion of trial, the entire share i,e, area measuring 9 Kanal 16 Marla was decreed by the trial Court vide its judgment and decree dated 30-10-2010, whereas the second suit of the pre- emptor over Mutation No,530 was dismissed on the basis of time-barred and want of cause of action.
4. As the entire share of the vendor i,e, 9 Kanal 18 Marlas was decreed in favour of the respondent/plaintiff in Suit No,3/1,- the respondent did not prefer an appeal against the dismissal of other Suit No,238/1. Aggrieved by the decretal of entire area in the instant suit, the present petitioner preferred an appeal before District Appeal Court, who after hearing the parties, partially allowed the appeal vide judgment and decree dated 16-9-2011 and modified the judgment and decree of trial Court to the extent that decree in favour of respondent/plaintiff up to 2 Kanal 9 Marla was kept intact while rest of the suit was dismissed.
5. Aggrieved by the judgment and decree of learned appellate Court, both the parties filed a revision petition bearing Civil Revision No,510 of 2011 and Civil Revision No,540 of 2011, before this Court. Both the petitions were allowed and findings of appellate Court to the extent of area sold and right of pre-emption were set aside; consequently case was sent back to the appellate Court to rehear the parties and decide the appeal of the vendee afresh. However, the findings on the question of 'Talbs' decided in favour of pre-emptor by both the subordinate courts were maintained. This judgment was further challenged through appeal before honourable Supreme Court of Pakistan, which was accepted and case was remanded back to this Court vide order dated 2-10-2010. The operative part of said order is reproduced herein below:-- "A perusal of the evidence on the record would reveal that it is by all means sufficient to enable the High Court to decide the revision petition. If at all any issue regarding the extent of area sold or pre-empted was not framed that would not be of much consequence as the pleadings of the parties their evidence on the record and the arguments of their learned counsel addressed at the bar at different stages infallibly show that they were fully aware of the controversy involved in the case. We, therefore, do not see any occasion for the remand of the case. We, thus allow these appeals, set aside the impugned judgment and send the case back to the High Court for decision afresh after hearing the parties."
6. In compliance with the above judgment and order of Worthy apex Court, the arguments of learned counsel for the parties heard and with their valuable assistance, record of the case minutely perused.
7. Learned counsel for the petitioner contended that both the courts below wrongly decided the question of Talbs in favour of pre-emptor, as it was not proved according to Law of Pre-emption.
He further argued that the suit is liable to be dismissed on the strength of evidence produced by the pre-emptor/plaintiff. On the other hand, the learned counsel for the respondent submitted that learned appellate Court has utterly failed to understand the real controversy between the parties and observation of learned appellate Court that due to dismissal of Suit No,238/1, the decree of trial Court has attained finality and petitioner Arsala Khan has become co-sharer, is indeed misconceived and unwarranted. He also contended that the appellate Court has fallen into an error in considering the dismissal of subsequent suit as fatal and modification of the decree on this ground is the result of misinterpretation of settled law on the subject. The learned counsel further submitted that as the pre-emptor in a meticulous manner has succeeded in observing the legal formalities of Talbs and both the trial Court as well as appellate Court concurred on the factum of question of Talbs, does not call for any interference.
8. The pivotal question in the instant case is whether transaction of sale entered and effected into two mutations between the same parties can be pre-empted in a suit claiming right of pre- emption on the whole transaction.
9. The resolution of this question depends on, whether there has been a sale within meaning of the law under which the pre-emption is claimed and this must necessarily depend to the large extent upon intention of the parties. Section 5 of Khyber Pakhtunkhwa Pre-emption Act, 1987 (hereinafter called 'The Act') provides that right of preemption shall arise in case of sale. Sale has been defined in section 2(d) of the Act, ibid, which is reproduced below:-- "Sale" means permanent transfer of ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hib-bil-iwaz or/B hiba-bi-shari al-iwaz but does not include---
(i) Transfer of an immovable property through inheritance or will or gift, other than hib-bil-iwaz or hiba-bi-shart al-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."
' The definition of sale under section 2(d) of the Act, ibid, is obviously wider than mutation effected under section 42 of West Pakistan Land Revenue Act, 1967, or section 54 of Transfer of Property Act, 1882, for, it is not governed by the restriction as to the mode of transfer contained in section 42 of Land Revenue Act or section 54 of Transfer of Property Act.
10. If the transaction amounts to sale in fact, the right of preemption will come into force, notwithstanding the fact that mutation has effected or not. The perusal of sections 13 and 31 of the Act, ibid, also fortified the wider scope with regard to definition of 'sale' under the Act than sale effected through mutation or other registered deed. Wisdom can also be drawn from the case-law reported in PLD 1967 SC 411 'Abdul Karim v. Fazal Muhammad Shah', 2001 M LD 1716 (Peshawar)
'Muhammad Subhan and others v. Mir Qadam Khan and others' and 2002 CLC 1894 (Lahore) 'Allah Ditta v. Fazal Muhammad and others.
11. It is further obvious from perusal of record that in the plaint, it has been categorically mentioned that the entire share of the vendor which comes to 1/6, was sold but the vendee and the vendor collusively have attempted to defeat the pre-emptive right, have wrongly alleged the sale of 1/2 share of the vendor out of 1/6, which comes to 1/12 share, without reference of the mutation. This stance was simply denied in the written statement by the vendee and vendor with no detail of the sale. It is well settled law that a pre-emptor in a pre-emption suit, cannot be defeated through fraudulent manner.
12. It transpired from the evidence that two 'separate mutations i,e, Mutation No,523 attested on 12- 4-2004 and. No,530 attested on 10-6-2004, with regard to 4 Kanal 18 Marlas each, were introduced by the vendee but no reference was made in the joint written statement. The respondent being fully aware of the situation, sought permission to produce secondary evidence through application dated 15-6-2010 regarding the sale deed between the vendor and the vendee dated 17-5-2004 and to be on the safe side filed a separate suit regarding the alleged sale vide Mutation No,530 but that suit was dismissed by the trial Court.
13. No doubt, that no specific issue regarding the share sold in the suit property was framed, but evidence on record by all means is sufficient to enable the Court to decide the case. Furthermore, during course of recording their evidence, both the parties were fully aware of controversy involved.
It is well settled law that if once the parties are alive to contentions raised and when once evidence is adduced in support of such contentions, the framing or non-framing of issues loses significance.
Reliance can be placed on 1993 SCM R 2018 'Fazal Muhammad Bhatti v. Mst. Saeeda Akhtar, 2004 SCM R 1524 'Eada Khan v. Ghanwar and others.
14. The appellate Court should must have considered and discussed the entire evidence available on the record being last Court of facts but the judgment of appellate Court would reveal that same has been delivered in a slipshod manner. The appellate while considering the G vendee defendant to be co-sharer and entitling him to half of the suit property, has totally ignored this aspect that at the time of institution of suit the vendee defendant was not co-sharer in the suit property. To this effect, section 22 of the Act, ibid, is very much clear, which is reproduced herein below for convenience:
22. Improvement made in the status of the vendee defendant after institution of the suit.---Any improvement made in the status of a vendee defendant after the institution of suit for pre- emption (otherwise than through inheritance) shall not affect the right of pre-emptor plaintiff".
15. So far as factum of performance of Talbs is concerned, it is obvious from the record that the plaintiff proved performance of Talb-iMuwathibat and Talb-i-Ishhad in accordance with provision of law and the witnesses in this regard are consistent and nothing adverse could be extracted from their mouth during course of recording their statements. Both the learned Courts below are unanimous in their findings on issue No,6 with regard to performance bf Talbs and rightly resolved this issue in favour of the pre-emptor.
' In view of above discussion, revision petition bearing Civil Revision No,540 of 2011 is accepted, the judgment and decree of appellate Court dated 16-9-2011 is set aside and that of the trial Court dated 30-10-2010 is restored. While revision petition in hand, bearing Civil Revision No,510 of 2011, having no force, is dismissed. No order as to costs.