SHAKEEL AHMAD, J.- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the judgment and decree dated 29.4.2015 of the Additional District Judge-I, D.I.Khan whereby while accepting the revision petition filed by respondents, he set aside the order of Civil Judge-III, D.I.Khan dated 05.12.2013 by which he had dismissed the application under Order VII, Rule 1 1 C.P .C, and rejected the plaint.
2. The facts necessary for the purpose of this petition, briefly stated are that petitio ner, filed a preemption suit pre- empting the suit property situated at Mauza Thatha Civilian Tehsil Parova, on the basis of being co-sharer contiguity and appendages. After service of summons the respondents put their appearance, respondent Ghulam Jillani contested the suit by way of filing written statement raising therein many factual and legal objections, however , the respondents No.1 to 3 submitted an application for rejection of the plaint on the ground of non- performance of Talbs against the 4 co-vendee namely Muhammad Bakhsh and his non-impleadment as defendants, therefore, the petitioner submitted an application seeking therein amendment in the plaint to challenge the registered sale deed No.479/1 attested on 28.02.2013, correction of area of the land and also to implead Muhammad Bakhsh 4 co-vendee as respondents. After receipt of the reply of both the petitions, the learned trial Court dismissed both the petitions on 05.12.2013. Not contented with the same, respondents No. lto 3 filed revision petition, before the learned Additional District Judge-I, D.I.Khan which was accepted and suit filed by the petitioner was dismissed, hence this constitutional petition.
3. It was argued by the learned counsel for the petitioner that there is nothing on the record to show that the petitioner knew about the sale of the suit property at the hands of 4 co-vendee through registered sale deed No.479/1 attested on 28.02.2013, before 26.9.2013, the day he received the copy of written statement. It was next contended that the petitioner had perform ed jumping demand against the responde nts No.1 to 3 on 16.6.2.013 at 5 p.m. at Thatha Civilian of Chowk in presence of witnesses. On receipt of information of sale, whereafter , he performed Talb-e-Ishhad on 15.6.2013, he made his best efforts to know about 4 co-vendee, but in vain,th th th th however, on receipt of written statement of respondents No.4, he there and then performed Talb-e Muwathibat, thereafter , he also performed Talb-e-Ishhad within stipulated time, therefore, dismissal of suit by the learned revisional Court is illegal and liable to be set aside and case needs to be remanded back to the learned trial Court for decision on merit.
4. Conversely , the learned counsel appe aring on behalf of the respondents vehemently argued that writ petition filed by the petitioner is not competent. He next argued that the dismissal of suit/rejection of plaint is appealable under section 96 CPC. He further submitted that the petitioner failed to perform Talbs against 4 co-vendee in accordance with law and also of Talb-e-Ishhad, therefore, suit was rightly dismissed by the learned revisional Court and prayed for dismissal of the writ petition. On this the learned counsel for the petitioner requested to treat this petition as appeal.
5. I have heard arguments of the learne d counsel for the parties and have gone through the record with their eminent assistance.
6. Adverting to first contention of the learned counsel for the respondents No.1 to 3 that impugned judgment of the learned revisional Court dismissing the suit is appealable. There is no cavil to the proposition that a Court before a writ petition is subjudice may in exercise of its discretion, treat an incompetent petition as an appeal.
So in the interest of justice I treat this constitutional petition as appeal.
7. Admittedly , in a suit for pre-emption notices of Talb-e-Ishhad have to be given to all co-vendees, but in the instant case notice of Talb-e-Ishhad by petitioner was given to Muhammad Bakhsh, co-vendee, had been sent subsequently, as such the same had not been sent in accordance with mandatory requirements of section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
8. In view of the above, it is clear that the mandatory provisions of section 13(3) of the Act have not been complied with in letter and spirit. It is noted that in the instant case transaction had jointly been made by four vendees i.e. Muhammad Afzal, Muhammad Ismail, Muhammad Khalid and Muhammad Bakhsh, but initially, Talb-e Muwathibat as well as notice of Talb-e-Ishhad has been sent only to respondents No.1 to 3 Muhammad Afzal, Muhammad Ismail and Muhammad Khalid, and thereafter , on filing of written statement by the respondent No.4 Ghulam Jilani on 26.9.2013, wherein he categorically stated that suit property was sold to Muhammad Afzal, Muhammad Ismail, Muhammad Khalid and Muhammad Bakhsh jointly through registered sale deed No.479/1 attested on 28.02.2013, no Talb-e-Muwathibat or notice Talb-e-Ishhad had been made by the petitioner immediately with regard to the 4th co-vendee Muhammad Bakhsh, the petitioner was required to make jumping demand immediately with regard to the said vendee. It is pertinent to mention here that initially , the petitioner had only made Talb-e-Muwathibat as well as issued notice of Talb-e-Ishhad to respondents No.1 to 3 as such the said Talbs made by the petitioner cannot be considered in respect of 4 co-vendee i.e. Muhammad Bakhsh as held by august Supreme Court of Pakistan in the case reported as "Munawar Hussain and others Vs. Afaq Ahmad (2013 SCMR721).
9. The stance of the petitioner that he made Talb-e- Muwathibat on obtaining copy of written statement on 26.9.2013 has no force as Talb-e-Muwathibat has not been duly made upon getting knowledge.
10. Contention of the learned counsel for the petitioner that the transaction of sale was carried out clandestinely and that neither the registered sale deed was known to him, nor vendor issued any notice as required under section 12 and 32 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, despite the fact that he had submitted an application on 19.6.2013, through registered AD for issuance of certified copy of the sale deed, but in vain. No doubt section 12 of the Act states about issuance of notice by the vendor before sale of his property to all concerned. Here the question would arise that what will be consequence of non-issuance of notice by the vendor under the ibid section of the Act. Answer to this question was given in the case reported as (PLJ 2011 Peshawar 288), wherein it was held as under:- ""12. Notice of intention to sell... (1) Where any person proposes to sell immovable property in respect of which a right of pre emption exists, he shall give notice to all such persons having such right of the price at which he is going to sell the property .
(2) The notice under sub-section (1) shall be given through any Court within the local limits of whose jurisdiction such immovable property is situated and shall be deemed sufficiently given if it be stuck upon the main entranceth th of a mosque and on any other public place of the village, city or place where the property is situated"
10. A bare perusal of the above cited provision reveals that the vendor has to issue the notice to all the persons who have right of pre-emption and that too through any Court within the local limits of whose jurisdiction the property being sold is situated. The above notice is required to be issued by the vendor prior to the sale transaction. Non-issuing of notice by the vendor would not create any right in favour of petitioner-plaintiff as no consequences have been provided under the said provision. Moreover, non-issuance of notice has no link or having overriding effect over the provisions of Section 31 of the NWFP Pre-emption Act, 1987, wherein the time limit for pre-emption suit is provided. In such eventuality, the delay in filing suit for pre emption is not only apparent but is also admitted by pre-emptor in his replication. As such, any violation on the part of vendor would not be taken as ground by the petitioner plaintiff for extension of time in filing suit, as there is no nexus of provisions of Sections 12 and 31 of the NWFP Pre emption Act, 1987.
Hence, by placing reliance on the above quoted judgment, it is held that non-issuance of notice by the vendor disclosing his intention to sell the suit property would create no right in favour of pre-emptor/plaintif f. Therefore, keeping in mind the above dictum, neither the period of limitation can be enlarged nor the same has any nexus or overriding ef fect over section 31 of the Act, so for as limitation is concerned.
11. Admittedly , in the present case the pre-emptor partially pre-empted the suit property to the extent of 41 kanals 19 marlas out of the total transaction of 71 kanals 3 marlas. Section 19 of the Act places restriction on partial pre - emption. It will be advantageous to reproduce section 19 of the Act, which reads as under:-
19. (1) Save as provided in section 16, the right of pre-emption shall be non-transferable and indivisible.
(2) The claim for pre-emption shall be made on the whole property pre-emptible."
It is by now settled that partial pre-emption amounts to waiver of rights on the part of pre-emptor as provided by section 15 of the Act, which is reproduced as under:- "15. The right of pre-emption shall be deemed to have been waived if the pre-empt or has acquiesced in the sale or has done any other act of omission or commission which amounts to waiver of the right of pre-emption."
12. Coming to contention of the learned counsel for the petitioner that after receipt of copy of written statement on 26.9.2013, he came to know about sale of remaining land when the respondent submitted an application for dismissal of the suit, he at about 11 a.m. made jumping demand in the office of Muhammad Bilal Advocate, after going through its contents in presence of one Faqir Bakhsh, which was followed by notice of Talb-e-Ishhad on 02.10.2013 and he also submitted an application for impleadment of 4 vendee Muhammad Bakhsh, therefore, the suit is well within time. Section 13 of the Act relates into Talbs, which is reproduced as under:- "13. (1) The right of pre-emption of a person shall be extinguished unless such person makes demand of pre- emption in the following order , namely:--
(a) talb-i-muwathibat;
(b) talb-i-ishhad: and
(c) talb-e-khusumat.
Explanation I. "Talbi-muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption.
Note.--Any words indicative of intention to exercise the right of pre emption are suf ficient.
II. "Talb-i-ishhad" means demand by establishing evidence.
III. Talb-i-Khusumat" means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make talb-i- mawathibat.
(3) [10][Subject to his ability to do so, where ] a pre-emptor has made talb-e muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of ribtice under section 11E32], or knowledge, whichever may be earlier make talb-i ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confessing his intention to exercise the right of pre-emption:th Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-i ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of talb-i muwathibat under sub-section (2) and talb i- ishhad under sub-section (3), he shall make talb-i-khusumat in the court of competent jurisdiction to enforce his right of pre-emption."
13. Admittedly , in the instant case sale transaction was carried out through registered sale deed No.479/1 attested on 28.02.2013, thus, the case of the petitioner is hit by section 31 of the Limitation Act, which provides period of 120 days for institution of the suit from the date of registration of the sale deed whereas the suit was filed on 25.6.2013 after 116 days, however , the suit was instituted with regard to partial sale and the whole transaction was not pre-empted, the suit in pursuance of second Talb which has made the third Talb i.e. Talb-e-Khasumat was barred by time, particularly , with regard to limitation in respect of the sale carried out through impugned registered sale deed. In this context reliance can be placed on the judgment reported as "Said Rasool VS. Aslam Khan and others" (PLJ 2012 Peshawar 99 wherein it was observed as follows: - "6. The pre-emptor/petitioner instituted the present suit for pre-emption by referrin g to Mutation No. 5090 attested on 14.4.2003 whereas the sale in question was effected through a registered deed dated 9.9.2002 and this very sale-deed was incorporated in revenue record through above said Mutation No. 5090. The Reference of said registered deed has also been given in the above stated mutation copy of which is Ex.PW -1/3 and the said mutation was attested on the basis of transaction embodied in the said registered deed No. 12 dated 9.9.2002. So, in the circumstances, the date to be considered for computation of period of limitation would be the date of registration of sale-deed i.e. 9.9.2002 and not date of attestation of mutation in question i.e. 14.4.2003. It is a settled provision of law that the effect of registered deed would be a notice to public-at-large and on this analogy, law has also provided the start of limitation from the date of registration of the sale-deed. So, in this view of the matter, a pre-emptor was required to file his suit for pre-emption within 120 days of the registration of sale-deed and not from the date of attestation of mutation. In the Maulana Nur-ul-Haq's case (supra), their Lordships have also settled this controversy in the following terms:-- "The next point for determination relates to the date from which the period of limitation for 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 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 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 pre-emptor 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 provision with regard to issuance of public notice by the Registrar contained in Section 32 has no nexus with the period of limitation prescribed by Section 31 for filing a pre emption suit in respect of a sale transaction effected through a registered sale-deed and is meant to provide an extra source of knowledge for making 'Talb-i-Muwathibat' and an alternate time frame for making Talb-i-Ishhad in accordance with sub-section (3) of Section 13 of the Act."
14. examining the above factual and legal aspect of the case, The learned revisional Court after minutely rightly declined the prayer of the petitioner for amendment of the plaint.
15. For what has been discussed above, I find no illegality or irregularity or jurisd ictional defect in the impugned judgment, therefore, the same is upheld. The petition in hand being bereft of merits is herby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.