' SYED AFSAR SHAH, J.---The facts forming the background of the present civil revision are no longer in controversy and in brief are as under:-- ' It so happened that on the basis of Mutation No, 1888 attested on 21-6-2006, land measuring 23 kanal 16 marlas bearing Khasra Nos.5757, 5769, 5767, 5780, 5781, 5782, 5748, 5748/1, situated in the local limits of Moza Mira Khel was purchased by Mir Qabat Khan for an ostensible amount of Rs,7,14,000. The sale was pre-empted by Ayub Khan claiming his superior right of pre-emption on all the three counts allowed by law and giving the sale consideration as sum of Rs,3,57,000 or whatever is fixed by the Court.
' When summoned by the learned trial Court vendee/defendant contested the suit, inter alia, on the ground that, since the pre-emptor has failed to comply with the mandatory provisions as envisaged in the N.-W.F.P. Pre-emption Act, 1987, therefore, the suit is not maintainable. The learned lower court after recording the evidence of the parties, pertaining to their respective contentions for and against, dismissed the suit, vide its judgment dated 23-1-2008 and aggrieved from the same, the pre-emptor filed an appeal in the Court of learned Additional District Judge-IV, Bannu.
The learned appellate Court, vide its judgment dated 14-5-2008 by allowing the appeal, set aside the judgment impugned therein and remitted the case back to the learned trial Court with the direction to take amended plaint from the pre-emptor by impleading Ahmad Nawaz, the subsequent transfree in the panel of the defendants, and also to challenge the Mutation No,1899, dated 24-8-2006, on the basis of which the said transaction was made.
' Dissatisfied with the findings of the learned appellate Court Mir Qabat Khan the petitioner/ defendant has come up to this court in revision.
2. It is the contention of the learned counsel for petitioner that the conclusion drawn by the learned appellate court is the result of misreading and non-reading of the evidence; that the principle of lis pendens as defined in section 52 of the Transfer of Property Act, 1882 is attracted to the pending lis only and that subsequent sale before institution of the preemption suit in any case is not covered by the said principle. He went on the say that the subsequent transaction dated 24-8-2006 was very much in the knowledge of the pre-emptor right from the date of institution of the suit and even prior to it, but he failed to exercise his pre-emptive right against the said transaction.
Developing his arguments, he further added that the pre-emptor has neither performed Talb-e- Muwathibat nor Talb-e-Ishhad in respect of the subsequent transaction and therefore, in the circumstances he has got no right of pre-emption in respect of the same. Learned counsel for the petitioner further added that Ahmad Nawaz, subsequent vendee could not be impleaded as party in the panel of defendants, particularly in a suit for possession through pre-emption after the expiry of limitation, provided in the law for the suit like one; that the impugned judgment handed down by the learned appellate court is not within the parameters of law and as such is without jurisdiction; that since no lis was pending adjudication, therefore, the appellate court by remitting the case to the trial Court has committed illegality.
3. As against that learned counsel for the respondent argued that in view of the principle of natural justice that no one should be condemned unheard, the direction with respect to the impleadment of Ahmad Nawaz is in accordance with law; that since vendee/ defendant neither in the written statement nor in his court statement has uttered even a single word about the subsequent transfer, therefore, the direction regarding the impleadment of Ahmad Nawaz with adding factor of challenging of Mutation No, 1899 was but a legal requirement. Learned counsel lastly argued that in view of Order XXII Rule 10, C.P.C., the impleadment of Ahmad Nawaz subsequent transfree as party to the proceedings will meet the ends of justice.
4. I have considered the submissions of learned counsel for the parties and gone through the record.
5. It appears from the record available on file that on the basis of Mutation No, 1888 dated 21-6- 2006, land measuring 23 kanals 16 marlas was purchased by Mir Qabat Khan, the vendee/ petitioner. Again it is evident from the copy of the plaint appended with the petition that the respondent/ pre-emptor after getting knowledge of the suit transaction made the jumping demand on 2-7-2006 followed by sending .a notice to the vendee on 5-7-2006. Similarly, he has pre-empted the impugned transaction by filing the suit on 6-9-2006. On the other hand, it appears from the record that on 24-8-2006, Mir Qabat Khan the original vendee transferred a portion of land measuring 10 kanal 8 marlas to one Ahmad Nawaz, vide Mutation No, 1899 and it was in this background that the learned appellate court was constrained to make direction for his impleadment and also to challenge the subsequent mutation in his remand order herein impugned. In the circumstance, the moot question falls for determination before this court is as to whether the subsequent transfer made by the vendee in favour of Ahmad Nawaz comes within the ambit of lis pendens or otherwise. There is no two opinions about this principle that once a pre- emption suit is instituted the vendee is barred from entering into sale or resale of the land in dispute, and the reasons are the pendency of the /is. Needless to say that the provision of section 52 of the Transfer of Property Act, 1882 will be attracted only when is pending. In the case under consideration, the position is however, a little bit different, in that here the subsequent transfer of a portion of the suit property has been made on 24-8-2006 much earlier than the timing of the suit, which is dated 6-9-2006 and hence, the principle of lis pendens is not applicable to this case.
Again it is undisputed fact of the case that the pre-emptor has neither performed Talb-e- Muwathibat nor Talb-e-Ishhad in respect of the subsequent sale and even the plaint is silent in this respect. The subsequent transfer of a portion of the land in dispute by the vendee in favour of Ahmad Nawaz, subsequent transfer was altogether an independent transaction and was required to be pre-empted in accordance with law of Pre-emption. If any authority is needed, reference can be made to the cases, "Abdul Yamin Khan v. Ashrat Ali Khan and others" (2004 SCM R 1270) and "Mst. Heemat Jehan and another v. Attaullah Shah" (2012 CLC 686) Peshawar.
6. The learned appellate court by remitting the case for impleadment of subsequent transferee as party to the case with adding factor of challenging the subsequent mutation, has committed illegality. So far as, this contention of learned counsel for the respondent that vendee/defendant neither in the written statement nor in his Court statement has uttered even a single word about subsequent transaction is C concerned, I think he has misconceived the situation in that it is evident from the record that the pre-emptor has obtained copy of the Jamabandi from the revenue officials on 5-9-2006 and that in its column of remarks the reference of mutation subsequently attested is very much there, and hence in the circumstances he was supposed to have knowledge of the transfer of the portion of the suit land in favour of Ahmad Nawaz.
7. For the reasons stated above, this petition is accepted, consequently the impugned judgment handed down by the learned appellate court stands set aside and accordingly the case is sent back to there which shall be deemed to have been pending before it for decision on merit and observation made above. No order as to costs.