' The bone of contention between the parties is land measuring 3 Kanals 10 Marlas, represented by Khasra No, 557 situated in Mauza Nawan Shehr Janoobi, Tehsil and District Abbottabad, out of which Muhammad Yousaf and his two sisters .List. Noorun Nisa and 41st. Zubaida-Khatoon sold 24/35 share in favour of Ajab Khan. This sale was effected by Mutation No, 4826 attested on 10-5- 1977. Two persons, Abdul Jabbar and Ghulam Hussain, instituted two separate pre-emption suits, bearing Nos. 197/1 and 253/1, against the vendee. Abdul Jabbar pre-emptor claimed that he was possessed of all the qualifications mentioned in the Pre-emption Act, including that of co-share ship, but Ghulam Hussain pre-emptor claimed participation in the immunities and appendages of the suit land and also contiguity thereto. Both the suits were consolidated by the learned trial Judge, who, on the basis of the pleadings of the parties, framed the following issues :- "(1) Whether the plaintiff has got cause of action ?
(2) Whether the suit land is exempt from Pre-emption under section 5(c) of pre-emption Act ?
(3) Whether the plaintiff is estopped by his conduct to bring the present suit ?
(4) Whether the suit is within time ?
(5) Whether the suit is bad for non-joinder and misjoinder of necessary parties ?
(6) Whether the suit is hit by the principle of res judicata ?
(7) Which of the rival pre-emptors has got superior right of preemption ?
(8) Whether a sum of Rs, 36,000 was fixed in good faith or actually paid as sale consideration of the suit land ?
(9) What is the market value ?
(10) Relief.
2. After recording such evidence of the parties as they wished to produce, the learned trial Judge, vide his judgment and decree dated 2-2-1984, holding that the right of Abdul Jabbar pre-emptor was superior to that of the vendee as well as of the rival pre-emptor, decreed his suit on payment of sale consideration of Rs, 35,018/40. The suit of the rival pre-emptor (Ghulam Hussain), who was held having contiguous land to the suit land was, however, dismissed because his learned counsel had stated before the learned trial Judge that the suit was barred by time.
3. Ajab Khan vendee was not happy over the decision of the learned trial Judge. He, therefore, instituted appeal against it in the Court of learned District Judge, who, after hearing the learned counsel for the parties, vide his judgment and decree dated 20-2-1984, dismissed the appeal with costs. He has, therefore, come in revision to this Court assailing therein both the judgments and decrees passed by the learned two Courts below.
4. S. Abdul Salam Sarwar, Advocate appeared on behalf of the petitioner and Haji Ghulam Basit, Advocate appeared on behalf of the respondent. Their arguments were heard and the record carefully gone through with their assistance.
5. The first contention of the learned counsel for the petitioner is that despite the fact that a specific plea was raised by the vendee-petitioner in his written statement that the suit instituted by respondent-pre-emptor was barred under Order II, rule 2, C. P. C. No issue was framed by the learned trial Judge in this respect, and that thereby the vendee-petitioner was prejudiced at the trial when the suit which should have been dismissed on the aforesaid plea was decreed against him. The learned counsel suggested that in its corrective jurisdiction this Court should remand the case to the trial Judge with a direction to frame a specific issue on the plea aforesaid and for re- deciding the whole case in the light of evidence which may be brought on record on this additional issue.
6. I have given my anxious consideration to the contentions raised by the learned counsel for the vendee-petitioner. It is true that specific plea was raised in the written statement filed by the vendee-petitioner that the suit instituted by respondent-pre-emptor was barred under Order II, rule 2, C. P. C. And tnat no issue to that effect was framed by the learned trial Judge. But the record would show that the issues were struck on 28-3-1979 in presence of the learned counsel for the parties and no objection was raised at that time by the learned counsel representing the vendee- petitioner that the aforesaid plea raised by his client was not reflected in the issues. Thereafter, evidence was led by the parties and no attempt was made to bring on record any evidence to show that the A pre-emption suit instituted by respondent-pre-emptor could not proceed on account of the bar contained in Order II, rule 2, C. P. C. No question was even put to the respondent- pre-emptor in that regard when he appeared as a witness in support of his case at the trial. At the time of arguments before the learned trial Judge no such point or objection was agitated. Then, in the grounds of appeal no specific plea regarding the non-maintainability of the respondent-pre- emptor's suit under Order II, rule 2, C. P. C. Was taken, nor was this plea urged before the learned District Judge at the time of arguments, having urged which it would have been reflected in the judgment impugned herein. It would, therefore, be deemed to have been abandoned by the vendee-petitioner before the learned two Courts below. It is at the revisional stage that the objection is being raised and pressed by the learned counsel for the vendee-petitioner in respect of that plea. The plea which may have been abandoned before the two Courts below cannot be permitted to be raised at the revisional stage,] particularly when its success is dependent upon the evidence which is no0 brought on the record. Further, the record relating to the first suit instituted by the respondent-pre-emptor (Suit No, 333/1), which was requisitioned in this Court, would show that suit was instituted in Court on 5-10-1976 and upto that date nothing had happened except the entry of the sale Mutation No, 4826 by Patwari Halqa in the register of mutations. The statement of ladies vendors in respect of sale of the suit land had even not been recorded by the Commissioner appointed for the purpose upto that date, which was recorded on 9-10-1976. The respondent-pre- emptor therefore, had no cause of action to bring a pre-emption suit as by then, no sale in respect of the suit land had been concluded. That being so, the C subsequent pre-emption suit filed by the respondent-pre-emptor was not hit by Order II, rule 2, C. P. C. The contention raised by the learned counsel for the vendee-petitioner, therefore, has no substance.
7. The next argument of the learned counsel for the vendee-petitioner is that the suit instituted by the respondent-pre-emptor was hit by limitation. He contends that the possession of the suit land had been delivered to the vendee-petitioner long before the entry of sale mutation by Patwari Halqa in the register of mutations and that this fact was admitted by the ladies-vendors when their statement was recorded by Girdawar Circle (Commissioner) on 9-10-1976. The learned counsel submits that the respondent-pre-emptor could have instituted this suit within one year from the date of delivery of possession of the suit land to the vendee-petitioner or if no positive date in that respect was proved, then within one year from the date of statement the ladies-vendors was recorded by Girdawar Circle (Commissioner) wherein they admitted having handed over possession of the suit land to the vendee-petitioner. The suit having been instituted much after one year from either of the two dates mentioned above was barred by limitation under section 31 of the N.-W. F. P. Pre-emption Act, the learned counsel maintains. The learned counsel for the respondent- pre-emptor, however, contends that there was no evidence on the record to show on which date the possession of the suit land had been delivered to the vendee-petitioner, that the copies of Khasra Girdawari placed on file would show that in the Girdawari of Kharif 1977, which was done on 5-10-1977, the name of vendee-petitioner was for the first time entered as having purchased the suit land and that even in that Gardawari the possession of the suit land was shown to be with one of the vendors. He also contends that in the previous suit instituted by respondent-preemptor (bearing No, 333/1) for declaration of title and for possession of share) the vendee-petitioner and his co-defendants had filed joint written statement on 13-6-1977 wherein it was claimed that the possession of the suit land was with other defendants and not with the vendee-petitioner and that this admission by vendee-petitioner himself established that the possession of the suit land was not delivered to him by his vendors upto the date when the statement of the ladies vendors was recorded. He further submits that as admitted by the 'Makiaim' of the vendee-petitioner in his statement in Court that the vendee-petitioner was in Saudi Arabia, the question of delivery of physical possession of the suit land to him did not arise.
8. I have given my anxious consideration to the arguments of the learned counsel for the parties in the light of the evidence brought on record. In my opinion the arguments of the learned counsel for the respondent-pre-emptor have much substance in them. There is absolutely no evidence on the record as to the date on which the possession of the suit land was delivered to the vendee- petitioner. The copies of Khasra Girdawari placed on file do not support the claim of the learned counsel") for the vendee-petitioner that his client had obtained physical possession of the suit land much earlier than the date of attestation of sale mutation. The respondent-pre-emptor was not present at the time when the statement of the, ladies-vendors was recorded by Girdawar Circle (Commissioner) on 9-10-1976, nor had he notice of that statement. He was, therefore, not bound by what was stated by the ladies-vendors in that statement in respect of delivery of possession of the suit land to the vendee-petitioner, which was also factually incorrect. He could also ; in the circumstance, not be attributed with possessing the knowledge of a concluded contract of sale in favour of the vendee-petitioner earlier than the date of attestation of sale mutation. Under section 31 of the N.-W. F. P. Pre-emption Act, the vendee-petitioner, in order to non-suit the pre-emptor on the basis of limitation, had to prove the actual date on which physical possession of the land purchased by him was delivered to E him and the suit was instituted by the pre-emptor after one year of such date He failed to bring cogent evidence on the record in this regard. In such circumstances, the only date which was material for the purpose of deciding the issue of limitation was the date of attestation of sale mutation. From that date the suit instituted by respondent-pre- emptor was within one year, hence within time. This contention of the learned counsel for the vendee-petitioner is also without substance,
9. There being no merit in this revision petition, it is hereby dismissed with costs.
Revision .