' The facts leading to the filing of this appeal are that Juma Khan (appellant) instituted Civii Suit No, 307/1 of 1973 in the Court of Civil Judge, Mansehra against the defendants-respondents for possession by pre-emption of the land (as detailed in the plaint) situate in village Lughmani Lehari Teetwal, Baffa, claiming superior right of pre-emption against the vendees mainly on the ground of his co-sharer ship in the suit land. Initially the suit was instituted against Suleman and DureAman (respondents) and on account of their absence an ex parte decree was passed in favour of the plaintiff on 18-10-1973. However, the ex parte decree was later on set aside on 1-4-1974 on the application of the defendants. In the written statement filed by the aforesaid vendees they took the plea that the suit land had been transferred by them in favour of Mst. Bibi Sahiba who had an equal right of pre-emption with the pre- emptor. Consequently Bibi Sahiba (respondent No, 1) was impleaded as party and a joint written statement was submitted on behalf of defendants I to 3, taking the plea that the land in suit having been transferred within a period of one year from the date of the original sale in favour of Mst. Bibi Sahiba, who was having an equal right of preemption as against the pre-emptor, his suit was liable to be dismissed.
2. The learned trial Court, after considering the evidence produced in the case, came to the conclusion that the impugned sale having been effected by Mutation No, 6662 attested on 2-1- 1973, the subsequent sale by the first vendees in favour of Mst. Bibi Sahiba was not effected within the prescribed period of one year. The reason given was that the Mutation No, 6656 in favour of the subsequent vendee though entered on 1-10-1973 was later on rejected on 2-1-1974. It was considered that the acceptance of her appeal by the Collector against the rejection of the mutation would make no difference since the order of the Collector for the attestation of the mutation came after the period of limitation had already expired. In this view of the matter the decree prayed for was granted to the plaintiff as he was proved to be a co-sharer in the suit property.
3. Mst. Bibi Sahiba, the subsequent vendee, feeling aggrieved filed an appeal before the District Judge Hazara which was accepted on 3-6-1976 and the decree of the trial Court in favour of the plaintiff was reversed. The learned District Judge concluded that the subsequent sale by the first vendees in favour of Mst. Bibi Sahiba shall be deemed to have taken effect on the date when the sale Mutation No, 6656 was entered with the Patwari on 1-10-1973. It was considered that the aforesaid mutation was not attested in favour of the subsequent vendee for the reason that on the basis of an ex parte decree obtained by the pre-emptor on 18-10-1973, another Mutation No, 6662, regarding the suit land, already stood attested in his favour. But later on, when the ex parte decree was set aside the aforesaid mutation in favour of the pre-emptor was no more in the field and hence there was no hurdle in the way of Mutation No, 6656 being attested in favour of Mst. Bibi Sahiba who, being a co-sharer, was having an equal right of pre-emption as against the pre- emptor.
4. The learned counsel for the appellant argued that since the alleged sale in favour of Mst. Bibi Sahiba was merely entered with the Patwari and no mutation was attested within a period of one year from the original sale, she was not clothed with any right to contest the plaintiff's claim of superior right of pre-emption. It is contended that the mere entry of the mutation would not amount to a completed sale unless the mutation was duly attested in accordance with law. I am afraid, this argument of the learned counsel would not prevail for the reason that the period of one year is to commence from the date of the sale or when the transaction of sale is completed. The title in the property would pass to the vendee when the sale is made and would not be postponed till the attestation of mutation in the revenue record. Under section 31 A of the N.-W. F. P. Pre- emption Act, 1950 the period of limitation of one year for a pre-emption suit is to commence from the attestation of the sale mutation or from the date of physical possession under the sale but this would have no application to a subsequent sale effected by the first vendees in favour of another person in recognition of his equal or superior right of pre-emption. The learned counsel then contended that out of the original vendees only Suleman informed the Patwari about the sale and not Dure Aman the other vendee and therefore, the share of Dure Aman in the suit property would not be deemed to have been transferred in favour of Mst. Bibi Sahiba on the day of the entry of the sale mutation. It is also contended that in fact there was no sale in her favour because, after the entry of the sale in her favour with the Patwari on 1-10-1973, no application for setting aside the ex parte decree was moved on her behalf and instead the .Original vendees applied on 25-10-1973 for setting aside the ex parte decree passed in the case. This fact would show that the subsequent sale was a collusive and fraudulent transfer, for, had there been any genuine sale in favour of Mst.
Bibi Sahiba, she must have applied for setting aside the ex parte decree and for being impleaded as a party to the case. However, it may be mentioned that from Mutation No, 6656 entered on 1-10- 1973 at the instance of Suleman, it is evident that the entire area purchased by both the vendees was transferred in favour of Mst. Bibi Sahiba and there is nothing to show that Suleman purported to transfer only his own share in the suit property. Further, there is nothing to show that Dure Aman ever objected to the B entry of the sale with the Patwari in favour of Mst. Bibi Sahiba, rather by his conduct, he had fully supported the sale thus made in her favour. Regarding the objection that Mst.
Bibi Sahiba did not apply for setting aside the ex parte decree or for being impleaded as a party to the case, it may be mentioned that the ex pane decree was passed against Suleman and Dure Aman and only they were competent to apply for setting aside the ex parte decree. It is evident that after the decree was set aside, Dure Aman and Suleman submitted their written statements wherein they had specifically mentioned that within the period of one year from the original sale they had transferred the suit land in favour of Mst. Bibi Sahiba who was a necessary party to the case. Resultantly she was impleaded as a party and in the joint written statement again the question of subsequent sale in favour of Mst. Bibi Sahiba, in recognition of her equal right of pre- emption with the pre-emptor, was raised. In these circumstances the aforesaid objection of the learned counsel would not prevail, for, in law the pre-emptor can be defeated by any legitimate means or by adopting a device which is not unlawful. There is nothing to show that the subsequent transfer was a disguise and in fact no sale was made in favour of defendant No,
3. Thus, in the circumstances the first vendees were within their right to have transferred the suit land in favour of Mst. Bibi Sahiba within one year of the original sale and she being a co-sharer in the suit property, having an equal right of pre-emption, could successfully defeat the pre-emption suit.
5. For the aforesaid reasons, this appeal being without any merit is accordingly dismissed but with no order as to costs.