' ROOH-UL-AMIN KHAN, J.---This civil revision petition is directed against the judgment and decree dated 29-11-2010, passed by learned Additional District Judge-I Karak, and that of learned Civil Judge-II Karak, dated 15-4-2009, whereby both the Courts below concurrently, decreed the respondents' preemption.
2. Brief but relevant facts forming the back ground of the instant revision petition are that plaintiffs Hukam Khel and one other (respondents herein) filed a preemption suit in respect of sale Mutation No,8340, dated 16-12-2003. As per averments in the plaint, the plaintiffs/respondents came to know about the suit sale on 26-3-2004 (Friday) at 1500 hours in their Baithak, situated in village Akar Wala Karak through one Anwar Mehmood son of Khush Jehan, in presence of Khurshid Anwar, and they immediately performed Talb-i-Muwathibat, there and then, in presence of the above named witnesses. Later on, in confirmation of the first talb, they sent notice Talb-i-Ishhad, on 27-3-2004 to vendees-defendants Misal Khan, Mir Qadam Khan, Gul Faraz Khan and Nasrullah Khan.
3. The averments of the plaint were seriously controverted by vendees defendants in their written statement, raising therein, variety of objections legal as well as factual. The controversial pleadings of the parties resulted into framing of issues. Pro and contra evidence was recorded and on conclusion of trial, the learned Trial Court, decreed the suit of the respondents/pre-emptors vide judgment dated 15-4-2009, against which, the vendees-defendants filed appeal before the learned Appeal Court, but the same was dismissed vide judgment dated 29-11-2010. Hence, this revision petition.
4. It was argued by the learned counsel for the petitioners-vendees that suit sale has been effected through registered sale-deed No,25, dated 6-2-2002, on the basis of which, impugned mutation No,8340 has been attested on 16-12-2003, whereas, the pre-emptors/respondents have filed the suit for possession through preemption on 31-3-2004, i,e, beyond the period-of one hundred and twenty days of registration of the sale-deed, as contemplated by the provisions of section 31(a) of the NWFP Pre-emption Act, 1987, which was hopelessly barred by time and was liable to be dismissed out rightly. He further argued that the plaintiffs/respondents have miserably failed to prove the performance of talbs in accordance with section 13 of the NWFP (now Khyber Pakhtunkhwa) Preemption Act, 1987; that Khurshid Anwar (PW.2) and Anwar Mehmood (PW.3), have contradicted each other on material points i,e, date, time and place of performance of Talb-i- Muwathibat; likewise, the defendants-petitioners have categorically denied in their written statement the receipt of notice of Talb-i-Ishhad and the preemptors/respondents have not examined the postman to prove Talb-i-Ishhad. He contended that both the Courts below have acted in exercise of their jurisdiction illegally and with material irregularity, thus, the impugned judgments and decrees are not tenable and liable to be set-aside.
5. While controverting the arguments of the learned counsel for the petitioners, learned counsel for the respondents vehemently argued that the Registrar while registering the said sale-deed has not given public notice of the suit sale and thereby failed to perform his duty under section 32(1) of the NWFP Pre-emption Act, 1987, hence, in such circumstances, the period of limitation for filing suit is to be computed from the date of knowledge of the pre-emptors about the suit sale and not from the date of registration of sale-deed; that the plaintiffs respondents have filed the instant suit within prescribed period of 120 days from the date of their knowledge about the suit sale. He went on to say that all the P.Ws. Are unanimous on performance of demands and despite their searching cross-examination by the defendants-petitioners, nothing beneficial to the vendees, could be extracted from the P.Ws.; that findings of both the Courts below are concurrent on question of facts, thus, needs no interference under revisional jurisdiction; that notice of Talb-i- Ishhad delivered through registered post has been received by Muhammad Sharif, the real brother of Asadullah defendant, thus both the Courts below have properly appreciated the evidence available on record. He prayed for dismissal of the instant revision petition with costs.
6. Having heard the learned counsel for the parties, and after scanning the record with their valuable assistance, it appears from the record that the suit land was purchased by the defendants-petitioners through registered deed dated 6-2-2002, and on the basis of the same, Mutation No,8340 was attested on 16-12-2003, against which the instant suit for possession through pre-emption was filed by the A respondents-pre-emptors on 31-3-2004. The question of determination of period of limitation about a sale effected through sale-deed, revolves around the provisions of sections 31 and 32 of the NWFP Preemption Act, 1987, and for convenience, both the sections are reproduced below:-- ' S.31. Limitation:- The period of limitation for a suit to enforce right of pre-emption under this Act, shall be one hundred and twenty days from the date..
(a) Of the registration of the sale deed; or
(b) Of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or
(c) On which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or
(d) Of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c)
S.32. Notice:--The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.
(2) The notice under subsection (1) shall be deemed sufficiently given if it be struk up on the main entrance of a mosque and on any other public place of the village, city or place where the property is situated: ' Provided that if the property is situated in a city, the notice shall also be given through a newspaper having large circulation in such city.
(3) The charges for the notice under subsection (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration of attestation of mutation.
7. From the bare reading of section 31 of the Act ibid, reveals that it is comprehensive provision providing a period of limitation for filing a suit for possession through pre-emption under that Act and the same provides different limitation for different sale transactions. Section 31(a) provides in unambiguous terms that in case of an alienation of a property through a registered sale deed, the period of limitation, is one hundred and twenty days, commencing from the date of registration of sale-deed. Under subsection (b) of section ibid, if the property is transferred other than the registered sale-deed but through attestation of a sale mutation, the period of limitation of one hundred and twenty days, is to commence from the date of attestation of mutation. Likewise, subsection (c) enumerates that, in case of alienation otherwise through a registered sale-deed or a mutation, the period of limitation of one hundred and twenty days, is to be counted from the date on which the vendee takes physical possession of the property while section 31(d) caters the period of limitation if the sale is not through a registered sale-deed, a mutation or taking of physical possession of the vendee then the period of one hundred and twenty days is to start from the date of knowledge of the preemptor about such sale.
8. By virtue of section 32(1) of the said Act, the Registrar, while registering the sale deed or the Revenue Officer attesting the mutation of sale is under obligation to give public notice in respect of such registration or mutation within two weeks of registration or attestation, as the case may be.
Subsection (2) of section 32 caters that the notice given under subsection (1) shall be deemed to have sufficiently been given, if it is displayed on the main entrance of a mosque or other public place of village or where the property is situated.
9. Although, in the case in hand, the Registrar has not complied with the provision of section 32 ibid, but the same will not change the explicit and mandatory provision of section 31 of the NWFP (now Khyber Pakhtunkhwa) Pre-emption Act, 1987, which provides a fixed period for filing of suit in each situation. Section 32 conferred a duty on the Registrar or Revenue Officer for giving publicity to the registered deed or mutation, as the case may be, but does not provide any extension in limitation enumerated in section 31 of the Act ibid. Both the above-mentioned sections shall be read independently in nature and spirit without there being any nexus, one of which i,e, Section 31 is mandatory, in view of the expression "shall" used therein with penal clause while the other i,e, section 32, is directory in nature despite the use of word "shall" as it does not provide any penal consequences in case of non-compliance.
10. The arguments of the learned counsel for the respondents that for determining the point of commencing the period of limitation the provisions of section 31 of the Act are to be read with those of section 32 of the Act and any default on the part of the Registrar or the Revenue Officer in performing his obligation mentioned in section 32(1) would switch the case from the folds of section 31(a) or (b) to the purview of section 31 (d) of the Act, are unpersuasive and contrary to law for the reason that if the above arguments are accepted, then it shall make section 31 as superfluous and redundant, while the redundancy could not be attributed to any provision of a statute, unless it did not fit in the whole scheme of such a statute. The principle of harmonious construction requires that the provision of statute should be construed and interpreted in such a way that another provision of the same statute dovetail in to each other in such a way that the entire statute remain a well-knit, integrated and workable piece of legislation. I would like to emphasize that the aim of the limitation clause inserted in the Pre-emption Act, is to prevent the vendee from being oppressed by the stale claim of pre-emptor and to protect settled interest from being disturbed and to bring certainty and finality to disputes. If the contention of the learned counsel for the respondents is accepted, I am afraid there would be no limitation period for filing of pre-emption suit and section 31 (a) (b) and (c) would remain a mere decoration on the page of the book of statute and the vendee will remain under the sword of suit for indefinite period.
11. Section 31 regulates the course and manner for filing of the suit for possession through pre- emption with in the prescribed limit of time. This restriction of time is an outcome of public policy while section 32 has no nexus with limitation for filing the suit. It is settled law that no word used in a statute by the Law Maker is either redundant or can be subtracted, substituted, added or read in a piece of legislation or a document. Reliance may be placed on case titled, "Hasnat Ahmad Khan v.
Institution Officer" (2010 SCM R 354). Moreover, while interpreting certain provision of law, the Court cannot modify the clear intention of law maker. It has to interpret the law as it is and not as it ought to be. The Court is not to make law or construe in a manner which may be resulted as making the law. The yardstick available with the Court is to know the intention of the law maker.
12. On thorough perusal of both the sections ibid as well as in light of the dictum laid down by the apex Court in case titled, "Muhammad Ramzan v. Lal Khan" (1995 SCM R 1510), the contention of the learned counsel for the respondents is unacceptable. In the judgment (supra) the honourable apex Court has minutely discussed the effect and mandate of section 31 of Punjab Pre-emption Act (analogous to S.32 of the NWFP Preemption Act, 1987), in the following manner:--- "S.31(1) of the Act, provides that it is incumbent upon the officer registering the sale deed or attesting the mutation of sale to give public notice in respect of such registration or attestation within two weeks as the case may be. Subsection (2) thereof envisages that the notice given under subsection (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of a mosque and on any other public place of the village or the place where the property is situated. Presumption of regularity is attached to all official acts. It is not the case of the appellant that no notice was ever served by the registering authority nor evidence contrary to that has been brought on record. It would therefore, be presumed that the appellant had due knowledge of the attestation of the mutation of sale of the disputed land within two weeks from the issuance of notice under section 31 of the Act"
' Admittedly, in the judgment (supra) it was not the case of the appellant that no notice was ever served by the registering authority, however, in the instant case the stance of the respondents- pre-emptors is that they were not served with any public notice, but no evidence much less convincing and trustworthy has been led to prove the aforesaid stance of the respondents. The question of limitation in case of sale in dispute through registered sale deed fell before the august Supreme Court in case titled, "Maulana Nur ul Hag v. Ibrahim Khalil" (2000 SCM R 1305) which has been resolved as below:- "The next point for determination relates to the date from which the period of limitation of a suit to enforce a right of pre-emption arising from a registered sale-deed is to be computed. The explicit and mandatory provisions of section 31 of the Act leave no room for doubt that in case of sale effected through a registered sale deed the period of one hundred and twenty days shall be computed from the date of registration of the sale deed. The contention that if the Registrar fails to issue public notice envisaged by the mandatory provisions of section 32 of the Act the period of limitation is to be computed from the date of knowledge by the preemptor, is misconceived. Such a provision is neither contained in section 31 of the Act nor can be read into it in view of settled law that Court cannot supply 'casus omissus'. A comparative study of sections 31 and 32 of the Act would make it manifest that the provisions with regard to issuance of public notice by the Registrar contained in section 32 had no nexus with the period of limitation prescribed by section 31 for filing a pre-emption suit in respect of sale transaction effected through a registered sale deed and is meant to provide an extra source of knowledge for making Talb-iMuwathibat and an alternate timeframe for making Talb-iIshhad in accordance with subsection (3) of section 13 of the Act".
13. Albeit, the contention of the learned counsel for the respondents-preemptors regarding computation of period of limitation from the date of knowledge of the pre-emptor about the suit sale is supported by opinion of the Hon'ble Judge of the apex Court in Mian Asif Islam's case (PLD 2001 SC 499), decided by a two members Bench, but at the same time, the other Hon'ble Judge of the Bench was not in agreement with the former Hon'ble Judge regarding such interpretation of the provisions of sections 31 and 32 of the NWFP Pre-emption Act, 1987 and both the Hon'ble Judges had ultimately concurred in their conclusion regarding correctness of rejection of plaintiff's plaint in a suit for possession through pre-emption on the ground of the same being barred by time. In the case (supra) the following observations had been made:-- "Testing the provision of section 31(2) of the Act on the touchstone of the above principles we are inclined to hold that as this section has been incorporated in Act, with a view that a pre-emptor may not lose right to pre-emption if otherwise available to him merely for the reason that he was not informed about the sale transaction, therefore, an additional duty has been imposed upon the Registrar to make such transaction public by adopting the procedure laid down in subsection (2) of section 31 of the Act by using the word "shall" which represents to the command of law, therefore, the registering authority is bound to complete the registration of document and make it public in the prescribed manner otherwise despite of registration of sale deed if provisions of subsection (2) of section 31 of the Act are not complied with it would be deemed that general public including the pre-emptor had no knowledge about the registration of the document and time of four months for filing suit for pre-emption will run from the knowledge of preemptor. Thus, we are of the opinion and for the above discussion and the background of the legislation narrated hereinabove the provisions of subsection (2) of section 31 of the Act, are mandatory in nature. In addition to it both the sections i,e, Sections 30 and 31 are dependent upon each other for the obvious reason that in the former section period of enforcement of right of preemption within four months from registration is prescribed of sale deed whereas under latter section the registering officer is under legal obligation to issue notice to general public about registration of the sale deed so that any person may claim his right of pre-emption. Thus, both the sections being mandatory in nature have to be read together in conjunction of each other".
' The other Hon'ble Judge of the Bench in the cited case, has recorded his separate opinion by observing as under:-- "Section 30 of the Punjab Preemption Act has specifically provided that the period of limitation to enforce a right of preemption shall be four months to run (a) from the date of registration of sale- deed; (b) from the date of attestation of the mutation, if the sale is made otherwise than through a registered sale-deed; (c) from the date on which the vendee takes physical. Possession of the property if the sale is made otherwise than through a registered sale deed or mutation; or (d) from the date of knowledge by the preemptor if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c). Admittedly, the right of pre-emption shall arise only in case of sale of immovable property vide section 5 of the said Act, which could take place either by registration of sale-deed or otherwise as provided under section 30 of the said Act when the title of the said property as required by law is passed into vendee i,e, where the deed of conveyance is registered or otherwise as said above, and such right of pre-emption to pre-emptor shall not arise when public notice is affixed as registration of a document is not a thing of which either the executant i,e, vendor or the vendee has to do anything in that direction as said act is to be performed after execution of a document by the parties by the officer appointed by law for that performance. In the instant case, sale of immovable property was effected through registration of sale deed, therefore, as provided under section 30 of the said Act suit to enforce the right of pre- emption shall be four months from the date of registration of the sale deed. It may be observed that there could not be concealment about the sale from the public or the pre-emptor in case sale is through registration as the said transaction is by the parties before the public functionary whose public record is open to public, therefore, it would not be said secret deal of the parties to detriment of preemptor.
' The word "shall" used in section 30 of the said Act is mandatory in nature, therefore, the period of four months from the date of registration fixed by section 30 cannot be extended because of section 31 of the said Act as official act is presumed to have been duly and regularly performed.
Time of four months will run from the date of knowledge of preemptor only if the sale is not under paragraph (a) or Paragraph (b) or paragraph (c) of clause (d) of section 30 of the Act and time cannot be made to run from the date of knowledge of giving of public notice as required by section 31 of the said Act, in case the sale is through registration of deed. In case the word "shall" used in section 31 of the said Act is held to be mandatory in nature thereby making the running of time of four months as provided under section 30 of the Act subject to the affixation of the public notice, it would negate the object of provisions of section 30 whereunder period of four months fixed for filing the suit for preemption is to be reckoned from the date of registration of the sale deed and the effect of not filing the suit within the said period would entail consequence of dismissal of the suit even if the plea for the same is not raised as provided under section 3 of the. Limitation Act.
This Court has time and again held that law should be saved rather than destroyed and the Court must lean in favour of upholding the constitutionality of legislation. Rule of Constitutional interpretation is that there is a presumption in favour of constitutionality of legislative enactments."
14. The controversy of commencing the period of limitation was again attended by the apex Court in case titled, "Khizar Hayat v. -Sardar All Khan and others" (PLD 2013 SC 369), wherein, the view already taken in case of Muhammad Ramzan and Maulana Noor-ul-Haq, received approbation.
The relevant passage from the above quoted judgment is reproduced below:-- "In view of what has been discussed above, we have found no occasion for taking a different view of the matter than the one already taken in the cases of Muhammad Ramzan and Maulana Nur ul Haq (Supra) and we may only add that if the contention of the learned counsel for the petitioner noted above were to be accepted then at least a period of two weeks would be required to be added to the period of limitation of one hundred and twenty days specified in section 31 of the N.W.F.P. Preemption Act, 1987 and such enlargement of the period of limitation through a judicial exercise may amount to committing violence upon the relevant provision of the statute which are otherwise quite clear, categorical and unambiguous".
In light of clear observations of the honourable apex Court on the subject, provision with regard to issuance of public notice by the Registrar contained in S.32 of the NWFP Pre-emption Act, 1987, has no nexus with the period of limitation prescribed by S.31 of the said Act for filing a pre-emption suit.
The contention of the learned counsel for the respondents-preemptor as well as the findings of the learned Courts below that if the Registrar fails to issue public notice envisaged by the provisions of section 32 of the Act, the period of limitation for filing a pre-emption suit is to be computed from the date of knowledge of the pre-emptors, is misconceived. The explicit and mandatory provisions of section 31 of the NWFP Preemption Act, 1987, leave no room for doubt that in case of a sale effected through a registered sale deed the period of one hundred and twenty days shall be computed from the date of registration of the sale deed. Reliance may be placed on cases titled, "Khalid Nabi Khan v. Haq Nawaz and others" (2012 YLR 126) (Peshawar), "Amanullah Khan v. Pirzada Muhammad Sabir Shah" (2011 YLR 2219) Peshawar and Ameen ud Din v. Tehsil Khan (2009 YLR 2227)
(Peshawar). The provisions of section 32 of the NWFP Pre-emption Act, 1987 being directory cannot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards. The stance of the respondents pre-emptors regarding non-affixation of notice would not make the execution and registration of deed a void document rather it can be safely concluded that the respondents/pre-emptors have not filed the suit within one hundred and twenty days from the date of registration of the sale deed which is hopelessly barred by time having been filed in contravention of the law, thus was liable to outright dismissal but both the Courts below while not adhering the explicit provisions of the law on the subject and the dictum of the Hon'ble Supreme Court on the subject have wrongly decided the issue of limitation by holding the suit to be within time.
15. As regards the performance of the very first Talb i,e, Talb-i-Muwathibat, the statements of the informer Anwar Mehmood (PW.3), Khurshid Anwar son of one of the pre-emptor Hukam Khel and witness of notice Talb-i-Ishhad and Talb-iMuwathibat Umar Khan (PW.4), are inconsistent on material aspects of performance of Talb-i-Muwathibat. Their testimoniesare suffering from contradictions and material discrepancies which would be fatal to the case of the respondents- pre-emptors in light of ratio of judgment in case titled "Alla Ditta through L.Rs and others v.
Muhammad Anar" (2013 SCM R 866).
16. The defendants-vendees have not only denied the receipt of notice Talb-eIshhad, in their written statement, but they have also categorically denied the same fact, in Court statement recorded by Misal Khan as attorney of the defendants-vendees. In view of unequivocal denial of the vendees-defendants, it was imperative for the plaintiffs-pre-emptors to examine the Post-man to prove service of notice Talb-eIshhad, but they did not produce him. By following ratio of case titled, "Muhammad Bashir and others v. Abbas Ali Shah" (PLJ 2008 SC 16), also reported in (2007 SCM R 1105) and case titled, "Bashir Ahmed v. Ghulam Rasoo" (2011 SCM R 762), I am constrained to hold that respondents have failed to prove performance of Talb-eIshhad, as required by the law.
The expression "Sending a notice in writing...."under registered cover acknowledgement due" has bean exhaustively dealt with in Muhammad Bashir's case (supra), by scanning the law on the subject of issuance of notice, since pre-partition, till date, including from the Indian Jurisdiction. The concluding Para No,21 of the judgment is reproduced as follow:-- "An analysis of the case-law discussed in the preceding paragraphs would show that when a presumption is raised in terms of Article 129 of the Qanun-eShahadat Order read with section 27 of the General Clauses Act on a question of fact, it would stand rebutted if the addressee makes a statement on oath denying service and the onus to prove service would continue to be on the party relying on such a notice unless of course there is other evidence to indicate that the denial of the service by the addressee is against the record".
' The same principle was, later on, reiterated by the apex Court in case titled, "Allah Ditta through L.Rs, and others v. Muhammad Anar" (2013 SCM R 866) in the following words:- "As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas All Shah (2007 SCM R 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as DIVA has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. The vital aspect has also eluded the attention of the two Courts below".
17. It is settled law that the pre-emptor might be clothed with superior right of preemption and have proved the performance of Talb-e-muwathibat, but he would be non-suited, if he, fails to prove performance of Talb-e-Ishhad. For successful exercise of right of pre-emption, the proof of superior right of pre-emption, performance of Talbe-Muwathibat and then Talb-e-Ishhad, in their respective chronological order, are sine qua non. If the case of the pre-emptor is deficient of any one of these legal requirements, his suit is bound to fail, which is the case of present respondents- plaintiffs.
18. As the suit of the respondents-pre-emptors is hopelessly time barred and they have failed to prove the mandatory Talbs. Thus, both the Courts below have failed to appreciate the evidence on record in its true perspective.And to advert to the law settled by the apex court on the subject and thereby reached to a wrong conclusion by decreeing the suit of the respondents/ pre-emptor.
Resultantly, this revision petition is allowed, the impugned judgments and decrees of the two Courts below are hereby set-aside and the suit of the respondents/plaintiff stands dismissed. No order as to costs.