1. ' INAYAT ELAHI KHAN, J.--The dispute in this revision relates to the sale of equity of redemption of 100/983 shares out of Khasra No. 781/52 measuring 49 Kanals 3 Marlas situate in village Tannan Tehsil Abbottabad which was purchased by Mir Afzal (petitioner) by mutation No. 2103 sanctioned on 23-3-1980 for a sale consideration of Rs, 40,000. The sale was pre-empted by Ali Asghar (respondent) mainly on the ground that he was a co-sharer in the suit property. It was alleged that the real sale consideration was Rs, 5,000 but the enhanced price of Rs, 40,000 was fictitiously mentioned to defeat the superior right of pre-emption of the plaintiff. In the written statement Mir Afzal defendant denied the superior right of pre-emption of the plaintiff and averred that the sum of Rs, 40,000 was fixed and paid in good faith. It was also alleged that there were two residential houses in the land in suit, the value whereof was Rs, 40,000. Besides alleging that the plaintiff's suit was barred by limitation it was also stated that the plaintiff by his conduct has waived his superior right of pre-emption. In view of the evidence produced by the parties the learned trial Court came to the conclusion that the plaintiff being a co-sharer had a superior right of pre-emption. For the market value of the land, in the absence of any other evidence, one yearly average prepared by Patwari was relied upon and it was fixed at Rs, 14,826.85. The suit was held to be within time and the plea of waiver raised by the defendant was also answered in the negative. In appeal filed by the vendee the learned Addition District Judge, Abbottabad affirmed the findings of the trial Court and held that in the absence of any positive evidence about the payment of Rs, 40,000 as sale consideration the trial Court has rightly fixed the market value of the land on the basis of one yearly average prepared by the Patwari. The superior right of the plaintiff was also upheld and on the question of waiver it was found that there was no cogent evidence to prove active participation of the plaintiff in the sale transaction with the result that the appeal filed by the vendee was dismissed on 12-11-1984. Hence this revision.
2. In support of the revision it is contended that the plaintiff's suit was barred by limitation as physical possession of the land was taken by the vendee prior to the attestation of the sale mutation ; that since the plaintiff had taken active part in the completion of the sale transaction he had waived his superior right of pre-emption and that the market value of the land has been wrongly assessed at Rs, 14,826.85 on the basis of one yearly average prepared by the Patwari instead of Rs, 40,000 which amount was actually paid by the vendee to the vendor. However, the .
2. Superior right of pre-emption of the plaintiff is not disputed by the petitioner.
3. 3.. Regarding the question of limitation the learned counsel referred to the statement of the plaintiff wherein he admitted that the sale transaction was effected one day prior to the attestation of the sale mutation and the possession was also delivered to the vendee. The sale mutation was attested on 23-3-1980 and according to the plaintiff the possession was taken by the vendee on 22-3-1980 which would mean that the suit instituted on 22-3-1981 was well within time. The limitation period for a pre-emption suit provided under section 31 of the N.-W. F. P. Pre-emption Act, 1950 is one year from the date of attestation of the sale by a Revenue Officer or from the A date on which the vendee takes under the sale physical possession of any parts of such land or property, Section 12(I) of the Limitation Act, 1908 provides, that In computing the period of limitation prescribed for any suit, appeal or application, the date from which such period is to be reckoned shall be excluded. The contention of the learned counsel that the Limitation Act, 1908 being a general law would not apply when the case was covered by special law, i. e. The N.-W. F. P. Pre- emption Act, 1950 is without any force, for, section 29 (2) (a) of the Limitation Act provides that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of section 4, sections 9 to 18 and section 22 shall apply in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
4. Thus, in the absence of any express provision to the contrary in the Pre-emption Act, section 12 of the Limitation Act would be applicable to the present case and the date on which physical possession of the land was allegedly taken by the vendee was to be excluded in reckoning the period of one year. Both the lower Courts had, therefore, rightly concluded that the suit was not barred by limitation. In support of the plea of waiver raised by the vendee it was held by the Courts below that there was as no convincing evidence to establish active participation of the plaintiff in the Sale transaction. In this regard the evidence of the two witnesses, namely, Muhammad Farid son of Muhammad Sharif and Muhammad Farid son of Ghulam Jan produced by the vendee has rightly been discarded as their evidence did not inspire confidence. Regarding the payment of Rs, 40,000 as sale consideration the vendee again relied upon the evidence of the two witnesses mentioned above and this evidence being insufficient and not convincing has been rightly excluded from consideration. Both of them had shown ignorance about the actual amount paid to the vendor by the vendee as the money was not counted in their presence. The learned counsel also referred to and relied upon three other sale mutations in support of his contention. Out of them, it may be mentioned, that sale Mutations Nos. 2046 and 2040 have been included in the one year average (Exh. P. W. 1/1) prepared by the Patwari Haiqa. The contention that the one yearly average does not relate to the same kind of land as in dispute is also without force, for, the one yearly average is based on different mutations relating to the land of the kind of Bari, Rakkar, Maira and unculturable whereas the land in suit is 100/983 shares out of a joint Khasra number measuring 49 Kanals 3 Marlas comprising of 4 Kanals Bari, 2 Kanals Rakkar, 33 Kanals 16 Marlas Maira, 9 Kanals Bana and 7 Marlas Ghair Mumkin Bandi. In this view of the matter and in the absence of any other convincing evidence about the payment of the sale consideration of Rs, 40,000 the learned Courts below appear to have rightly relied upon the one yearly average prepared by the Patwari. Regarding the contention that there were two houses built in the land in suit it may be mentioned that the evidence of the vendee and his witnesses is absolutely silent on this point. The plaintiff in his cross-examination stated that the land has been sold out of the joint property which has not yet been partitioned between the co-owners and that the residential houses belonged to him. This assertion finds support from an entry in the Khasra Girdawari of Kharif 1977 wherein it is mentioned that {{URDU TEXT}} ' This entry is repeated in the Khasra Girdawaris of the subsequent crops. In view of these facts it is clear that no illegality has been committed by the Courts below in assessing the market value of the suit land. Further, is not a case in which the lower Courts acted without jurisdiction or faile to exercise jurisdiction or acted with any illegality or material irregularity in the exercise of their jurisdiction. The revision is accordingly dismissed The parties are, however, left to bear their own costs.