This civil revision is coming out of the judgments of the learned Civil Judge, Swabi dated 13.11.2012 and learned Additional District Judge-III, Swabi dated 21.02.2014 impugned herein in a suit for possession through exercising the right of pre-emption in respect of a house measuring 0.4 Marla, the location of which is identified by its boundaries as given in the head note of the plaint.
2. It is as asservate that the sale activity was effected through an unregistered deed for an amount of Rs. 80,000/- as sale consideration. The petitioner herein (before called as plaintiff) on coming to know about the sale transaction on 06.04.2008 at 03:00 pm while setting in his Hujra was informed by Tila Muhammad and in the presence alongwith Jehan Afsar, resident of Sheikh Jana there and tihen announced to pre-empt the sale transaction as a requirement of Talb-i-Muwathibat. He then on 08.04.2008 sent notice of Talb-i-Ishaad through registered AD. The petitioner herein (before called as plaintiff) is possessed with the preferential right being Shafi-Sharik, Shafi Khalit and Shafi Jar. This suit was hotly resisted on various factual and legal grounds. The pleadings of the parties were reduced into the following ISSUES:
1. Whether plaintiff has got a cause of action?
2. Whether the suit is within time?
3. Whether the suit is competent in its present form?
4. Whether the suit is properly valued for the purpose of jurisdiction and Court fee?
5. Whether plaintiff has got superior right of pre-emption in respect of the suit property?
6. Whether plaintiff fulfilled the requirements of talbs as per S-13 of the NWFP Pre-emption Act?
7. Whether the suit property was purchased by defendants on actual sale amount of Re. 180,000/- through deed dated 08.04.2007, if not what is the actual price of the suit property?
8. Market value of the suit property?
9. Whether the plaintiff is entitled to the decree as prayed for?
10. Relief.
3. Petitioner herein (before called as plaintiff) caused to examine PW-1 Aurangzeb Patwari Helga, PW-2 Sardar All Postmaster, PW-3 Bakht Afsar as his own witness, PW-4 Tila Muhammad, PW-5 Jehan Afsar while the respondents herein (before called as defendants) examined DW-1 Raj Bahadar on behalf of him and rest of his brothers.
4. Having heard arguments of learned counsel for the parties, record was gone through with their assistance.
5. Record speaks that prior to, Civil Suit No. 280/1 decided 12.10.2011 by the judgment of learned Civil Judge-V, Swabi dismissing the suit was appealed before the Court of learned District Judge, Swabi.
The findings under Issues No. 2, 5 & 6 were restricted. The appeal was accepted and the matter was sent back to the learned trial Court for fresh decision under the observations made therein.
6. Before this Court Issue No. 2 (Whether the suit is within time?) was much appropriated for its significancy, which is indeed of lion's share importance. All the judgments almost are delivered with the findings to hold that this suit is instituted as requirement of Talbi-Khusumat within the stipulated period of 120 days as given by Section 31 of the Pre-emption Act, 1987. It was argued by learned counsel for the petitioner that when the defendants/respondents have not preferred any cross objection appeal before the First Appellate Court, therefore at revision stage, since the powers of this Court are restricted, therefore shall refrain from delivering finding under this issue.
There is a great margin of the appeal scope and revision scope. In appeal the whole case become open while at revision the jurisdiction of the High Court is limited. Findings on question of facts or law how erroneous the same may be if recorded by Court of competent jurisdiction, the same cannot be interfered with by High Court in exercise of its revisional jurisdiction under Section 115, CPC unless such findings suffer from controversial defects, illegality or material irregularity. These arguments need to be addressed before findings are delivered under Issue No. 2 pertaining to limitation.
7. It has been held in 2002 SCM R 144 (Mst. Anwar Bibi V8. Abdul Hameed), the relevant citation is produced here: "(d) Civil Procedure Code (V of 1908)--- ----S. 115--Revision---Plea of limitation---Concurrent findings of facts by the Courts below--- Interference by High Court in exercise of jurisdiction under 5.115, C.P.C.---Scope---Since plea of limitation which was a legal and factual plea was not legally dealt with and evidence on record was also misread by the Courts below High Court was justified in interfering with the concurrent findings which were on the face of record illegal---High Court had rightly interfered with the concurrent findings so as to see that complete justice was done to the party who was made to suffer on account of illegality of the two. Courts below---Power of High Court in the revisional jurisdiction was limited but in the present case both the Courts below had acted in the exercise of jurisdiction illegally and had misread the evidence on record, therefore, interference by the High Court was justified and legal--Supreme Court declined to interfere with the judgment passed by High Court in exercise of jurisdiction under S. 115, C.P.C. in circumstances."
Its now absolutely clear that even exercising revisional jurisdiction in order to arrive at a justified and legal conclusion of the fate of this revision petition, the findings under the issue of limitation are open to this Court.
8. The petitioner herein (befbre called as plaintiff) in the very opening Para of his plaint has admitted that the house measuring 4 Marla has been alienated through an unregistered deed for an exaggerated amount of Rs. 80,000/-. This deed when was exhibited in the statement of DW-1 Raj Bahadar as EXDW-1/2, it was not objected meaning thereby that neither only its contents were admitted rather this sale transaction was pre-empted. This unregistered deed was further admitted of its contents in a suit Bearing No. 159/1 decided on 24.04.2009 in between Mat. Zarina vs Bakht Zamin. It also finds mention in the statement of DW-1 Raj Bahadar. Now when it is an admitted fact that the transaction pre-emptable in this suit is the sane unregistered deed the suit instituted as requirement of Talb-iKhusumat on 14.04.2008, is hopelessly time barred as by this time more than 8 months and 10 days were over passed. Hence, this suit is miserably time barred.
9. The other important issue is Issue No. 5 (whether the plaintiff fulfilled the requirement of Talbs as per Section 13- of the NWFP Pre-emption Act, 1987). This issue has come under very hot discussion.
Learned counsel for the petitioner herein (before called as plaintiff) while referring to the statement of PW-3 Bakht Afsar that sooner after getting the knowledge from Tila Muhammad who has been examined as PW-4 then in his presence and in the presence of his brother PW-5 Jehan Afsar, the requirement of Talb-i-Muwathibat were duly complied with. There is no effective cross- examination as to pin point any discrepancy in the statement of PW-3 Bakht Afsar in B comparison to the statement of PW-4 Tila Muhammad and PW-5 Jehan Afsar, as all are in consonance to the jumping demand of Talb-i-Muwathibat at the relevant time and day on which this announcement was made, followed by the requirement of Talb-i-Ishaad which has been signed by this two truthful witnesses. It has been further endorsed by PW-2 Sardar Ali Postmaster, in whose statement the registered letter has been exhibited as Ex.PW2/1. Conversely these arguments were repelled by the learned counsel for the respondents. As per the dictum contained in 2015 SCM R 222(Daim Khan vs. Muslim Khan), 2015 SCM R 394 (Muhammad Abidullah vs. Ijaz Ahmad), PLD 2015 Supreme Court 69(Subhan- ud-Din vs. Peer Ghulam), 2015 M LD 1122(Fazal Faqir vs. Said Haroon Khan), 2012 YLR 1039(Zahid Ullah vs. -Muhammad Ishaq), 2010 YLR 1190 (Dr. Nosheen Latif vs. Shamim Akhtar), 2011 SCM R 762(Bashir Ahmad vs. Ghulam Rasool), 2007 SCM R 1105 (Muhammad Bashir vs. Abbas AU Shah), 2012 YLR 2403 (Faiz Muhammad vs. Ghulam Shabbir), 2009 M LD 433 (Muhammad Hayat Khan vs. Din Muhammad), 2009 CLC 259(Muhamtnad Hayat vs. Muhammad Jafar), 2014 M LD 1168 (Nazi?. Ahmad vs. Rehmat Ali), 2014 SCM R 852(Daud Shah vs. Waris Shah), 2015 YLR 1042(Muhammad Din Alkjurn vs. Muhammad Latif) and PLD 2010 Supreme Court 965 (Muhammad Wall Khan vs. Gul Samar Khan).
It is now without exaggeration lay it on thick that the suit of the petitioner herein (before called as plaintiff) has been held under discussion in Para Nos. 6, 7 & 8 to be hopelessly time barred.
Therefore, making of Talb-i-Muivathibat. or Talb-i-Ishaad would of no significance, as even if assumed for a while to be veridical it will not serve the purpose for the grant of any decree.
10. No other point was agitated before this Court, hence this revision petition stands dismissed.