' MUHAMMAD DAUD KHAN, J.---Through thiS constitutional petition, the petitioner has challenged the validity of judgment and order of learned Additional District Judge-II, Bannu dated 20.09.2013, whereby on accepting revision petition of respondents, against the order dated 08.06.2013 rendered by Civil Judge-X, Bannu, rejected the plaint of the petitioner under Order-VII Rule 11 C.P.C.
2. Briefly stated facts of the case are that suit for declaration, preemption and permanent injunction was instituted by the petitioner to the effect that respondent No,1 purchased the suit land mentioned in the head note of the plaint vide mutation No, 1809 attested on 28.11.2012 for a sum of Rs,2,00,000/-from one Sadiqullah Khan but the respondents/ defendants collusively got entered mutation No, 1810 attested on same date vide which land was further transferred to respondents/defendants Nos.2 to 5 by way of gift, which is fraudulent, collusive, mala fide and ineffective upon the rights of the petitioner/plaintiff and the same is with the ulterior motive in order to create complications in the way of plaintiff in relation to his right of pre-emption. The petitioner/plaintiff in para B of the plaint prayed the right of possession through pre-emption in that sale transaction. In Para C of the plaint the petitioner/plaintiff prayed for permanent injunction to restrain the respondents Nos.2 to 5 from claiming as owners in possession of the suit property, construction and change the nature of the suit land.
3. On appearance the respondents/defendants contested the suit by fling written statement along with application for rejection of plaint. On divergent pleadings of the parties, the learned trial court framed the following issues.
'ISSUES.
1. Whether plaintiff has got a cause of action?
2. Whether suit of the plaintiff is within time?
3. Whether mutation No, 1810 dated 18.12.2011 is liable to be cancelled on the ground that the same was sanctioned with collusion of defendants, to deprive the plaintiff from his right of pre-emption?
4. Whether plaintiff has fulfilled the requisite demands/talbs in accordance with law?
5. Whether plaintiff has got the superior rights of pre-emption?
6. Whether plaintiff has waived his right of pre-emption?
7. What is the market value of the suit property?
8. Whether plaintiff is entitled to the decree as prayed for? Relief.
' Issue No,3 related to the averments of petition in relation to the legal effect of alleged second mutation of alleged gift by the respondent No,1 in favour of respondents Nos.2 to 5 of the suit. In the meanwhile application under Order-VII Rule 11 C.P.0 was filed, which was contested by submitting replication. After hearing the learned counsel for the parties the application was dismissed with costs of Rs,1000/- vide judgment and order dated 08.06.2013 by the learned Civil Judge-X, Bannu.
4. Aggrieved from the said order, the respondents questioned the same through Civil Revision which was accepted by the learned Additional District Judge-II, Bannu vide its judgment and order dated 20.11.2043, resultantly the suit of the petitioner/plaintiff was rejected under Order VII, Rule 11 C.P.C.
5. Aggrieved from the judgment and order of learned Revisional Court, the petitioner/plaintiff challenged the said judgment before this court through instant Constitutional Petition.
6. Arguments of learned counsel for the parties heard and record perused.
7. It appears from the perusal of the plaint that respondent No,1 Mst. Gul Zahira Bibi purchased the suit land from vendor Sadiqullah Khan on 28.11.2012 and got attested in her name vide mutation No, 1809 on 28.11.2012 and after just a moment through next serial mutation No, 1810, this land was allegedly transferred by way of gift in her offspring (sons) on even date and moment. If the suit land has purchased for respondents Nos.2 to 5 it could be transferred through one mutation No, 1809 directly. The other mutation No, 1810 on the same moment creates apprehension and hurdle in his way for exercising his right of pre-emption that is by now substantive right given by the Islami law. The perusal of the plaint shows that at a time two mutations were attested cm the same moment bearing No,1809 vide which suit land was purchased by respondent No,1 and subsequent to that bearing No,1810, whereby the same land was shown gifted in favour of respondents Nos.2 to
5. The plaintiff/pre-emptor in the said scenario could have no other way to challenge the two mutations in the instant suit. The present petitioner in his plaint questioned the act of respondents by way of declaration along with exercise the right of pre-emption and include the all claims available at the time of institution of the suit in compliance of Order H, Rule 2 C.P.C.
8. Bundle of facts narrated in the plaint clearly indicates that the petitioner prayed all the claims available at the time of institution of suit, required under the law and the suit discloses cause of action, which requires pro and against evidence to decide the matter between the parties.
9. It is pertinent to note that the respondents have submitted their written statement where the defendants did not objected that "plaint does not disclose cause of action" but defendants asserted that "plaintiff has no cause of action" both the verses have different meaning. In the instant case, the written statement was filed, the issues generated by the divergent pleadings have been framed in such circumstances the rejection of plaint under Order VII, Rule 11, C.P.C. Is totally uncalled for. In a case of "Haji Allah Bakhsh v. Abdul Rehman and others" (1995 SCMR 459), the Hon'ble Supreme Court of Pakistan rendered the following observation:-- "The above contention seems to be devoid of any force. In order to press into service the provisions of Order VII, Rule 11, C.P.C, the averments contained in the plaint are to be presumed to be correct. "
' The dictums/principle of law was followed by this court in a case titled "Muhammad Zaman v.
Shah Wazir Khan" reported in (PLD 2002 Peshawar 45) wherein it has been held:-- "ii I order to invoke the applicability of this clause the court shall look into the contents of the plaint only and shall examine the plaint on its face value"
' The above principle of law was also supplemented by the Hon'ble Supreme Court of Pakistan in a case titled "Muhammad Altaf and others v. Abdur Rehman Khan and others" reported in (2001 SCMR 953), Wherein it has been observed:-- "For the purpose an application under Order VII Rule 11, C.P.C, the averments contained in a plaint are to be presumed to be correct. "
10. Reverting to the question of second mutation of gift allegedly made by vendee in favour of respondents/defendants Nos.2 to 5, it may be mentioned that in the written statement, a specific ground was taken that the petitioner should have pre-empted the said transaction as previous sale had become not in existence but the learned Appellate Court failed to consider the validity of subsequent transfer has been vehemently questioned by the petitioner in the plaint and both the parties seriously at issue on the controversial question of fact, so said controversy could not be resolved without providing opportunity to the parties to prove their stance, therefore, petitioner could not be non-suited on the ground that the second mutation had not been preempted. In our view the petitioner would be given opportunity to prove their stance taken in the plaint. Reliance can be taken from case titled "Aziz ur Rehman v. Maulana Muhammad Zahir Shah and 11 others"
(2008 CLC 1411 Peshawar) the second mutation of gift, which is to be scrutinize in the light of ground taken by the petitioner in the plaint that the subsequent transaction was not real transaction but was created merely to create hurdle in way of exercise of right of preemption.
11. The learned revisional Court has non-suited the petitioner summarily without considering the record or allowing the parties to lead pro and contra evidence, thus, we are constrained to accept this Writ Petition, set aside the impugned judgment of the learned revisional Court dated 20.09.2013 as ultra vires, without jurisdiction and without lawful authority and with no legal effect, and remand the case to the learned Civil Judge-X, Bannu with the direction to re-decide the suit after providing opportunities to the parties to produce their evidence as they wish to prove their stance taken in the pleadings. It is pertinent to mention that my this order would not influence the trial court in any way in deciding the us. No order as to costs.