' By mutation No, 17 entered on 29th July, 1974 one Gul Janan sold his share in khata No, 195 to Fazal Muhammad in lieu of Rs, 4,000. Roznamcha Waqiati does not mention of the sale price was paid and possession delivered. By mutation No, 40 entered on 18th July, 1974 one Zarin sold his share in khata No, 195 to Fazal Muhammad for Rs, 4,000 price received. The two mutations were attested on 28th April, 1976 and 29th April, 1976 respectively. Sales effected by separate mutations as above in favour of one and the same vendee were pre-empted by Daulat Khan etc. Co-sharers on 11th January, 1977. Vendee-defendant contested the suit and raised a number of preliminary objections such as of form of the suit, limitation, estoppel, partial pre-emption and misjoinder of causes of action. He further claimed that he himself had become a co-sharer in the suit land before the sale in dispute and was also a tenant in occupation of the suit land prior to the sale. He thus denied the plaintiff's superior right of pre-emption.
2. There were framed the following issues in the case :-
(1) Whether the suit is not maintainable in its present form ?
(2) Whether the suit is within time ?
(3) Whether the plaintiffs have got a cause of action ?
(4) Whether the plaintiffs are estopped to sue ?
(5) Whether the suit is partial, if so, its effect ?
(6) Whether the suit is bad for misjoinder of causes of action, if so, its effect ?
(7) Whether the plaintiffs have got superior right of preemption ?
(8) Whether Rs, 8,000 were fixed in good faith or actually paid as sale consideration ?
(9) Market value ?
(10) Whether the plaintiffs are entitled to the decree as prayed for ?
(11) Relief.
3. The parties adduced evidence for and against the issues. Patwari Halqa was produced by the plaintiffs as P. W. 1 and later on by the vendee-defendant as D. W. I. Copies of the revenue record were exhibited during the course of his statements. Daulat Khan plaintiff-pre-emptor recorded his statements as P. W. 3 while on the other hand vendee-defendant produced one Habibullah Khan, Advocate, as his witness besides recording his statement as D. W. As far as the market price is concerned, there was appointed a Commission who submitted his report per Exh. C. W.1/1 which assesses the value more than the ostensible sale price of Rs, 8,000 and as such the parties accept the market value and the payment of the sale price in the sum of Rs, 8,000.
4. The trial Court decided the issues of form, limitation misjoinder of causes of action, estoppel, partial pre-emptors and superior right of pre-emption in favour of the plaintiffs-pre-emptors and granted them a decree on payment of the ostensible sale price by his judgment and decree dated 5th March, 1978 against which the vendee-defendant as well the plaintiffs both went in appeals before the District Judge, Kohat where also the findings of the trial Court were upheld and both the appeals were dismissed by a judgment and decree dated 24th March, 1979.
5. Vendee-defendant filed a revision petition in this Court and challenged the findings of the Courts below on issue Nos. 1 to 7. However, during the course of arguments he confined his challenge to the findings of the Courts below on issues Nos. 2 and 7. At the outset the learned counsel for the vendee-petitioner referred to PLD 1975 Pesh. 188 and contended that the Courts below had not taken into consideration cogent evidence brought on record by him and had further misread the evidence vis-a-vis the findings on the two issues. He prayed that this Court may, on acceptance of this revision petition, set aside the findings of the Courts below and dismiss the pre-emptors- respondents' suit. On the other hand, the pre-emptors-respondents' counsel raised a preliminary objection to the maintainability of the revision petition and in particular stressed the point that the concurrent findings of the Courts below on point of facts regarding issue Nos. 2 and 7 be not disturbed in exercise of the revisional jurisdiction.
6. Instantly on reading of the pleadings, one comes to a conclusion that the pre-emptors- respondents' claim the transaction effected by mutation Nos. 17 and 40 as one joint transaction allegedly effected in lieu of Rs, 500 and that an ostensible sale price of Rs, 8,000 to have been fictitiously entered into the mutations. On the other hand, the vendee-petitioner alleges that there were two independent transactions effected by mutations Nos. 17 and 40 and that he had earlier become a co-sharer in the suit land by mutation No, 17 with regard to which the pre-emptors- respondents' suit was time-barred while his suit with regard to mutation No, 40 was not maintainable for both the parties were to possess co-sharership rights at par.
7. There is no denial of the fact that per Roznamcha Waqiati Exh. D. 1 mutation No, 17 was entered in favour of Fazal Muhammad vendee-petitioner in lieu of Rs, 4,000 regarding 1/4th share in the suit khata No, 195 on the basis of a statement made by one Gul Janan son of Gul Jhang the vendor. Per Roznamcha Waqiati Exh. D. 2 mutation No, 40 was entered in vendee's favour on the strength of a statement of one Zareen son of Sahib Gul made on 18th July, 1975 to have sold his 1/4th share in the suit khata to vendee-petitioner for Rs, 4,000 price received. On 31st July, 1974, Gul Janan vendor mutation No, 17 had appeared before the Revenue Officer as identified by Darya Khan Lambardar and Habibullah Khan, Advocate, the vendee-petitioner also present, and stated to have sold his 1/4th share in the suit khata in lieu of Rs, 4,000. The attestation of the mutation was deferred to in a general meeting in the 'Maga% On 28th April, 1976 without recording the attendance of the vendor or any body, mutation No, 17 was attested on the strength of the order of the Revenue Officer dated 31st July, 1974 earlier referred to. (Due to misprint it has been recorded as 31st July, 1975). Regarding mutation No, 40 entered on 18th July, 1975 Zareen vendor appeared before the Revenue Officer on 30th January, 1976 duly identified by Lal Khan and admitted to have sold his 1/4th share in the suit khata to Fazal Muhammad in lieu of Rs, 4,000 price since received. On 29th April, 1976, the Revenue Officer had attested the mutation on the strength of the statement of the vendor recorded on 30th January, 1976 without recording his attendance on that day. The Patwari Halqa (P. W. 1) has stated that the two mutations Nos. 17 and 40 were attested the same day on 28th April, 1976 but he had been sufficiently rebutted on the point by the entries of the two mutations and the office Kanungo who stated that the two mutations were attested on 28th April, 1976 and 29th April, 1976 respectively. One of the pre-emptors-respondents appearing as P. W. 3 claimed that he had earlier struck a bargain to purchase the suit land from the two vendors in lieu of Rs, 1,000 which bargain could, however, not get through. He also stated that the two mutations were attested on the same day and that he was present at the time of the transaction and that he had heard that the transaction was effected for Rs, 500. He could not get to know that how much area was sold by the two mutations. He stated that the transaction was negotiated a year before the attestation of the mutations. Vendee-petitioner (D. W. 1) stated that he purchased half of the suit land by mutation No, 17 for Rs, 4,000 from one Gul Janan some 3i years back with regard to which a receipt dated 31st July, 1974 per Exh. D. W. 1/1 was executed in his favour on the same day as written by Habibullah Khan, Advocate. He further stated that he had later on purchased other half of the suit land from one Zareen by mutation No, 40 after 15/16 months of the first transaction and that both the transactions were independent. Habibutlah Khan, Advocate (D. W. 2) stated to have scribed the receipt Exh. D. W. 1/1 on 31st July, 1974. The Courts below had taken notice of the discrepancy between the statements of the vendee-petitioner and Habibullah Khan Advocate, scribe of the receipt as the former said that the receipt was written on the date of the attestation of mutation Nil.
17 while the latter stated that the receipt was written on the date of the recording of the statement of the vendor. There, were also pointed out some other minor discrepancies as the vendee- petitioner stated to have paid the money to Gul Janan vendor of mutation No, 17 in the presence of his family people and not before somebody else while Habibullah Khan D. W. Stated that a part of the sale price was paid in his presence. There are points of similarity in the statements of the vendee-petitioner and the scribe about the place of the execution of the receipt Exh. D. W. 1/1. The date of the execution of the receipt if read in the context of the statements of the vendor and the order of the Revenue Officer dated 31st July, 1974, one would believe into the evidence of the vendee-petitioner that the receipt was executed on the date of the statement of the vendor acknowledging the receipt of money before the Revenue Officer and if an illiterate man in the person of the vendee-petitioner has taken it for date of attestation of the mutation, the same would not amount to a material discrepancy when the vendor was identified by Habibullah Khan, Advocate scribe of Exh. D. W. 1/1 on the said Gate. Thus per mutation No, 17 the transaction was completed on 31st July, 1974 when the vendor admitted before the Revenue Officer receipt of price and the transfer of ownership to the vendee-petitioner. Subsequently there was effected a separate and independent transaction by mutation No, 40 entered on 18th July, 1975 and the transaction was completed on 30th January 1976 when Zareen vendor admitted the receipt of sale price and transfer of ownership to the vendee-petitioner. The two mutations were later on attested on 28th April, 1976 and 29th April, 1976 independent of each other.
8. May it be stated that the vendors of the two mutations are different persons and they are not brothers inter se. They are simply co-sharers in the suit Khata. Pre-emptors-respondents have not brought evidence that they had jointly sold the suit land to the vendee-petitioner. On the other hand, the overwhelming evidence spelt out from the oral A testimonies of the vendee-petitioner and his witness Habibullah Khan, Advocate and the revenue record prove the fact that there were two independent transactions effected by mutation Nos. 17 and 40 and that in case of half of the suit land, the vendee-petitioner acquired ownership on 31st July, 1974 and in case of other half of the suit land, he became owner on 30th January, 1976.
9. A reference was made to Khasra girdawari to be read in the light of the statement of Patwari Halqa which records the vendee-petitioner in possession of Khasra Nos. 202 and 204 in Rabi, 1976 the cultivation of crop to commence in October/November, 1975. The pre-emptors-respondents have filed the suit on 11th January 1977 while the vendee-petitioner had acquired partial possession of the suit land more than a year before the institution of the suit. Suit Khata comprises ottwo 'mads' and eight khasra numbers. Gut Janan and Zareen vendors are recorded sharers in possession of four khasra numbers namely 202, 204, 206/1 and 239. Khasra No, 202 is tharani' land.
Other three khasra numbers are recorded `ghair-mumkin pahar'. Vendee has been recorded in cultivating possession of Khasra Nos. 202 were and 204 in Rabi, 1976 as having rendered the land cultivable. The other two khasra numbers continued as `ghair-mumkin-pahar' and were not susceptible to physical possession. The vendee thus succeeded to prove his acquisition of physical possession of part of the suit land under the sale completed on 31st July, 1974 by mutation No, 17 in Rabi, 19M commencing in October/November, 1975. Under section 31(1) of the N.W.F,P. Preemption Act, 1950 in case of sale of agricultural land the period of Limitation to enforce a right of pre- emption commences from the date of attestation of mutation or from the date on which the vendee takes physical possession of any part of the land under the sale whichever date is earlier.
In case of sale effected by mutation No, 17 the period of limitation commenced in October/November, 1975 when the vendee took physical possession of part of the suit land under a sale completed on 31st July 1974 by the said mutation Pre-emptors' suit with regard to the said sale is clearly time-barred. Pre-emptors' suit shall also fail in case of sale effected by mutation No, 40 as the vendee-petitioner had by then acquired at par status of co-sharership with the pre- emptors by virtue of sale of mutation No, 17 remaining intact.
10. The upshot of the aforegoing discussion is that the Courts below have been found to have not taken into consideration the documentary as well the oral evidence brought on record by the vendee-petitioner and have further misread the evidence. The overwhelming evidence establishes that there were effected two independent transactions vide mutations Nos. 17 and 40. The transaction of sale per mutation No, 17 was completed on 31st July 1974 while the transaction per mutation No, 40 was completed on 30th January, 1976. There were arisen two independent causes of action to the pre-emptors-respondents in cases of the two sales. C Vendee-petitioner took physical possession of part of the suit land under the sale per mutation No, 17 in October/ November, 1975 and as such pre-emptors' suit with regard to the sale is time-barred. Vendee- petitioner became a co-sharer by the transaction remaining immune from pre-emption and so pre-emptors were not to possess superior right of pre-emption with regard to the transaction of mutation No, 40 qua the vendee-petitioner.
11. As a result, this revision petition is accepted, the judgments and decrees of the Courts below are set aside. The suit of the plaintiffs-respondent is hereby dismissed. In the circumstances, parties are left to bear their own costs.