' The question requiring determination in this revision petition is if the transfer effected by the original vendee in favour of a person having equal right of pre-emption with the pre-emptor, before the institution of suit but after the expiry of period of one year, will result in non-suiting the pre-emptor?
It arises in the circumstances detailed below :- '
2. Lal son of Gulab was owner of 1/3rd share in the Khasra Nos. 524, 526 and 527 measuring 45 Kanals 13 Marlas situate in the area of Mamrial. Through sale Mutation No, 261 dated 5-8-1978 he sold the said land in favour of Gulab son of Niaz All for ostensible sale consideration of Rs, 11,000. On the foot of Mutation No, 305 attested on . 0-8-1979, the said Gulab in turn transferred the mentioned land in favour of Sherzaman son of Nawab.
3. The civil Courts, it is not disputed remained closed for summer recess in the month of August, 1979. Abdul Karim, claiming preferential right of pre-emption brought suit for possession of the land on the opening day of the civil Courts I e. 1-9-1979, though the period of limitation of one year expired on 4-8-1979. Originally he sued Gulab alone but afterwards having come to know of the transfer in favour of Sherzaman, he amended his plaint to implead him also as a defendant, though he questioned the validity of the transfer in his favour. It was stated that the said mutation was fictitious and only effected to create hurdle in his way to successfully pre-empt the sale in favour of Gulab.
4. The defendants resisted the claim of the pre-emptor and raised various pleas in their defence including the one that the pre-emptor lacked right of pre-emption against the transferees. Issues arising from the pleadings were framed and evidence for and against recorded.
5. The learned trial Court on the strength of section 26(2) of the Preemption Act held that the sale in favour of Sherzaman having been effected after the expiry of the period of limitation (one year after the attestation of the sale mutation), would not in any way affect the right of pre-emption of the pre-emptor. In other words that the second sale having been effected after the expiry of one year would not in any way adversely affect the right of pre-emption of the pre-emptor. -The other objections raised were also rejected and consequently, on 3-6-1981 the pre-emptor was granted decree for possession of the land on payment of Rs, 9,124.92.
6. Aggrieved, the defendant-vendee filed an appeal in the Court of Additional District Judge,.
Haripur, who vide his judgment dated 20-8-1981, in consequence of his finding on issues 1 and 6, dismissed the appeal and hence the present revision petition.
7. It was argued by the learned counsel for the petitioner that the case in question was covered by section 17(1) of the Pre-emption Act, therefore, the suit land having been transferred to a person having equal right of pre-emption with the pre-emptor respondent, hence the claim of the preemptor was liable to rejection.
8. In order to follow his contention, it may be necessary to reproduce section 17(1) of the N.-W. F. P.
Pre-emption Act. It reads : "17(1). No suit for pre-emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having- a right of pre-emption equal or superior to that of the plaintiff."
9. On the other hand it was contended by Mr. Muhammad Rafiq Awan, learned counsel for the defendant-respondent, that but for the closure of civil Courts on account of Summer recess during the month of August, 1979, the suit would have been instituted on or before 4th of August, 1979, therefore, for the purposes of section 17 of the Pre-emption Act, the spit is to be considered as pending and as such, the transfer effected by the first vendee in favour of the second transferee after the expiry of one year, would not in any way adversely affect the right of pre-emption of the pre-emptor, despite the fact that the second transferee has got equal right of pie-emption. In support be relied on lkramullah Khan and others v. Said Jamal (I), wherein it has been observed that :- "As to the contention that during the pendency of the suit the land was sold to petitioner Asmatullah who had an equal right with plaintiff, and therefore, no decree for pre-emption could be made in favour of the respondent, it is to be noticed that the sale under pre-emption was made on the 3rd of August, 1973 and the sale in favour of Asmatullah was made on the 19th of August, 1974, i,e, after expiry of the limitation period of one year permitted by section 31 of the Pre-emption Act. It was contended by the learned counsel for the petitioners that although the sale in favour of Asmatullah was made after the expiry of one year from the date of the original sale in favour of the first two petitioners, yet it was within the period of limitation in terms of section 4 of the Limitation Act, as the civil Court was closed on the 3rd of August, 1974 and the suit could only be filed on its re- opening on the 1st of September, 1974. In other words, the sale in favour of Asmatullah took place, according to the learned counsel for the petitioners, during the extended period of limitation as permitted section 4 of the relevant statute.
' It seems to us that the learned District Judge was right in observing that section 4 of the Limitation Act, does not extend the period of limitation prescribed under the law ; it simply permits a suit, appeal or application to be filed on the reopening of the Court, if the period of limitation expires on a day when the Court is closed. The language of section 4 itself speaks of the expiry of the period of Limitation, and the principle underlying the section is that this plaintiff or the applicant should not be prejudiced by the act of the Court, namely, its closure on the day when the limitation expires.
Section 4, therefore, does not extend the period of limitation, but merely provides a device to overcome the closure of the Court on the day the limitation expires. Such being the case, the sale made in favour of petitioner Asmatullah by the other two petitioners after the expiry of the period of limitation of one year would be of no avail to the vendees in terms of section 16 of the Pre-emption Act."
10. To my understanding, the authority cited above provides complete answer to the objection raised on behalf of the petitioners. The section sale having not been effected within the period of one year during which a suit) {{FOOT NOTE}}
(1) 1980 SCM R 375 {{FOOT NOTE}} of pre-emption was competent, and the vendee could transfer the property in favour of a person having equal rights with the prospective pre-emptor to defeat his right of pre-emption, the transfer would not affect in any way the right of pre-emption of the plaintiff-pre-emptor.
11. In result the question raised is to be answered in the negative. The revision petition fails and is to.
Be dismissed. However, keeping in view the legal point involved, the parties are to be left to bear their own costs.