MUHAMMAD DAUD KHAN, J.--- Through the instant Review Petition, Akhtai Ali Khan, the petitioner, has called in question the order of this court dated 23-5-2014.
2. Brief facts of the case are that the petitioner/pre-emptor has earlier filed C.R No.108-B of 2014, wherein he has challenged the concurrent judgments and decrees of both the courts below, which was dismissed in limine vide order dated 23-5-2014, hence the instant Review Petition.
3. Mr. SardaT Naeem Khan, learned counsel for the petitioner contended that the sale under pre- emption was actually agreement to sell which is not pre-emptable under the Pre-emption law.
Now the sale has been effected through registered deed and come within the definition of sale, hence, petitioner has right to pre-empt the sale completed after registration of deed through fresh suit. This point was not agitated at the time of arguing the revision petition. This being a new point, it can be rectified under the instant Review Petition by setting aside the impugned judgment dated 23-5-2014 and allowing the petitioner to exercise right of pre-emption afresh.
4. Arguments of the learned counsel for the petitioner heard and record perused.
5. It appears from the record that the pre-emption suit was filed by the petitioner/pre-emptor and he averred in the plaint that after getting knowledge of the suit sale on 30-5-2010; that the respondent/vendee got the ownership of the suit land, through Iqrarnama executed on 28-3-2010, whereby sale consideration was paid and possession was delivered.
6. The defendants when appeared, they hotly contested the suit by submitting written statement.
However, they also relied upon the Iqramama executed on 28-3-2010, meaning thereby that both the parties were in agreement that the sale was effected through said Iqrarnama and there is no dispute between the parties that the sale consideration was fully paid by the vendee and received by the vendor and delivery of physical possession of the land was effected under the said sale and the petitioner/plaintiff filed pre-emption suit as the bargain come within the purview of complete sale, defined in section 2(d) of the Khyber Palditunkhwa Pre-emption Act, 1788 (hereinafter called the Preemption Act). There is no dispute between the parties that the instant case was instituted on the sale defined under sections 2(d) and 5 of the Act and there is no dispute between the parties about the time to file the suit of pre-emption as provided under section 31 of the Preemption Act.
7. On divergent of pleadings the learned trial court framed controversial issues between the parties and both the parties produced their evidence as they wished. After conclusion of trial, the learned trial court as well as the Appellate Court concurrently dismissed the suit of the petitioner/plaintiff on merits, mainly on two grounds:
(i) The plaintiff has failed to prove the performance of Talbs in accordance with law.
(ii) The plaintiff has got no superior right of pre-emption.
The revision petition filed by the petitioner was also dismissed by this court on merits vide impugned judgment dated 23-5-2014. Now the petitioner sought review of the impugned judgment through instant Review Petition.
8. Order XLVII, Rule 1 of the C.P.C. Clearly laid down that the review proceedings cannot partake hearing of appeal/revision. Review also cannot be allowed on the discovery of some new material if such material was available at the time of trial, the appeal or the revision as the case may be.
The reliance can be taken in the case titled "Abdul Hakim and others v. Khalid Wazir" (2003 SCM R 1501).
9. The scope of review is very limited. The review is only allowed when there is error apparent on the face of the impugned judgment. The party could not be allowed to adjudicate the same facts which have already been decided. The Hon'ble Supreme Court of Pakistan in case titled "Sala Mehmood v. Muhammad Shafi" reported in (2008 SCM R 554) wherein it has been held:--- "The exercise of review jurisdiction does not mean a rehearing of the matter and as finality attaches to the order, a decision, even though it is erroneous per se, would not be a ground to justify its review".
10. The Hon'ble Supreme Court of Pakistan in the case titled "Ali Ahmad v. Muhammad Iqbal reported in (2007 SCMR 394) has observed as under:--- "It was further observed that "A review by its very nature was not an appeal or rehearing merely on the ground that one party or another conceived himself to be dissatisfied with the decision of the court".
11. In the instant case trial court, the Appellate Court and this court as a revisional court dismissed the suit of the petitioner/plaintiff, both on the point of law as well as points of facts and the point raised in the instant review petition by the learned counsel for the petitioner is not a new point as the original pre-emption suit was filed over the complete sale effected through unregistered sale- deed dated 28-3-2010 and according' to the petitioner/ plaintiff whole consideration was paid by vendee and received by the vendor, so in my mind the sale was completed under section 2(d) of the Pre-emption Act which is reproduced for convenience as below:--- 2(d) "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 hiba-bil-iwaz or hiba-bi-shart al-iwaz but does not include--
(i) .....................
(ii) .............
(iii) .............
(iv) .............
(v) .......................
The perusal of the definition of sale under section 2(d) of the Pre-emption Act shows that it is obviously wider than section 54 of the Transfer of Property Act, 1882 or section 42 of the West Pakistan Land Revenue Act, 1768, for, it is not governed by the restriction as to the mode of transfer contained in section 54 of the Transfer of Property Act or section 42 of Land Revenue Act. If the transaction amounts to sale in fact, the right of pre-emption will come into force, notwithstanding, the fact that registration or mutation has effected or not. The perusal of sections 5, 13 and 31 of the Pre-emption Act also fortified this wider scope with regard to definition of "sale" under the Pre- emption Act then sale effected through registered deed or mutation. In this regard the Hon'ble Supreme Court Of Pakistan in case titled "Abdul Karim v. Fazal Muhammad Shah" (PLD 1768 SC 411), on deciding his important question that whether a transaction of sale entered into in violation of section 54, Transfer of Property Act, 1882 is pre-emtpable? Answering this question it has been held:--- "The mere failure of the parties to comply with the requirements of section 54 of the Transfer of Property Act as to the manner in which the transfer should be made cannot alter the nature of the transaction intended to be entered into between the vendor and the vendee or affect the pre- emptor's right in respect of it. If the transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed by section 54 of the Transfer of Property Act the right of pre- emption will come into operation. Such a transaction even under section 54 is not altogether void, for, the defect is curable by getting a document drawn up and registered to perfect the inchoate title E of the vendee. This perfection can be insisted upon, for, there is at any rate an enforcible contract of sale even under the Transfer of Property Act, and even such imperfect transaction will give rise to equities in favour of the buyer. If he has paid the price he will have a charge of the property for the amount paid."
This view was also taken in the case titled Muhammad Subhan and others v. Mir Qadam Khan and others" (2001 M LD 1816) wherein it has been held:--- "Even under the Act the expression sale means transfer of ownership of immovable property in exchange for valuable consideration and has thus, no nexus with the attestation of mutation or registration of deed as the same, more often than not, can be oral and thus effective from the date when it is entered into. Want of attestation of mutation or registration of deed will not prevent a sale from being a sale through later on it may be formalized or documented through the attestation of mutation or registration of deed which in fact and effect only confirms an already existing fact or a fait accompli."
12. The stand relied by the learned counsel for the petitioner is not only baseless but also against the statutory law, discussed above.
Moreover, it is the requirement of law that what has been finally and conclusively determined by a competent court would be followed as irrefragable legal truth, as law does not provide opportunity to other party to reopen the matter at any time, after it had been finally decided by a court of law.
The rationale behind the law is that at some stage litigation must be brought to its logical end. This logic was provided not only in the code of Civil Procedure, 1708 but also this provision was provided under Article 114 of the Qanun-e-Shahadat Order, 1784 which also create estoppels against such sorts of litigations. In this regard reliance can be taken from "Liaqat Ali v. Aziz-ur-Rehman" (2010 YLR 2567).
13. Moreover, when the petitioner himself indulged the respondents by claiming his pre-emption right over the impugned sale and remained in lis from lower court to High Court, now at this stage he could not F allege that he has instituted the suit on premature sale and has right to re- adjudicate or reopen the case, as it is settled law that one could not approbate or reprobate in the same breath.
14. For the reasons discussed above, the instant Review Petition IG being baseless is hereby dismissed in limine.