Yaqub plaintiff-respondent herein filed a suit for possession of land measuring about 101 kanals 11 marlas situated in village Maira Khairo, Tehsil Haripur through pre-emption on the ground of being a co-sharer and contiguous owner and participator m the rights of easements etc. Ali Zaman petitioner --defendant contested the suit. Finding the parties at variance on a number of issues including that of limitation, the learned trial Court after recording such evidence as is adduced by the parties in support of their pleadings, dismissed the suit vide its judgment dated 8-10-1980. On appeal preferred by Yaquob, the learned District Judge, Mansehra reversed the findings of the learned trial Court, accepted the appeal and decreed the suit of the plaintiff-petitioner on payment of Rs.60,000. Hence this revision petition.
2. I have heard Qazi Abdur Rashid, advocate learned counsel for the petitioner-defendant and M.H.
Lughmani, advocate learned counsel for the plaintiff-respondent at length and also perused the record with considerable degree of care.
3. It is contended by the learned counsel for the petitioner that the pre--emption suit was barred by time and the finding on this point given in the impugned judgment of the learned appellate Court is not in consonance with the facts on the record and the law of limitation relevant thereto. In this regard he submitted that the plaintiff-respondent, whose superior right of pre-emption has not been denied, could file the suit within one year of the date of the earlier attestation of the mutation by revenue officer or from the date on which the vendee took physical possession of the suit property, whichever is earlier, and added that on both the scores, the suit of the plaintiff is barred by time under section 31 of the N.-W.F.P. Pre-emption Act, 1950 and while the trial Court has rightly held so, findings of the learned appellate Court are ill-founded and liable to be set aside with consequent restoration of the judgment and decree of the trial Court.
4. At this point, I will like to refer briefly the factual aspect of the case which is pertinent for giving a conclusive decision on the point of limitation. The suit land was sold to the petitioner by one Sher son of Mohammad Ali vide a receipt of the sale consideration of the suit land purportedly on 19-5- 1974 which also states. On the same date, however, a Mutation No. 102 was entered with the local Revenue Authorities but was assailed and the matter was taken to the Additional Deputy Commissioner, Hazara by Ali Zaman petitioner in an appeal, who, finding the attestation defective in law, accepted the appeal and remanded the matter back for fresh attestation in accordance with section 42 of the West Pakistan Land Revenue Act.
5.The learned counsel for the plaintiff/respondent herein thus submitted that the first mutation having been found by a competent forum as violative of the provision of section 42 of the West Pakistan Land Revenue Act, the time for pre-- emption, as set in section 31 of the N: W.F.P. Pre- emption Act, 1950, shall run from the later lawfully attested mutation dated 4-2-1976 and thus the suit was clearly within the prescribed time of one year. So far as taking over the physical possession of the suit land is concerned, the learned counsel for the plaintiff-- respondent submitted that it is without any consequential effect inasmuch as the so-called sale-deed has not been registered and as such for the purpose of limitation, Article 120 of the Limitation Act will be applicable which prescribes the period of 6 years.
6. In this context of the matter, the question that falls for determination is as to whether the period of limitation, prescribed in section 31 of the N.W.F.P. Pre-emption Act, 1950 shall be computed with reference to the earlier attestation dated 25-5-1974 or the later attestation dated 4-2-1976.
Additionally on the point of possession of the suit property, it is further to be examined whether the document executed in the form of receipt can be treated as a sale-deed, and even if so, whether such an unregistered instrument can be made a basis of reckoning the limitation prescribed in section 31 of the N.W.F.P. Pre-emption Act, 1950 or for that matter under Article 10 of the Limitation Act.
7. 1 have given my serious consideration to the point in issue.
8. From the perusal of the record, it is an admitted fact that the transaction of sale of the suit land has taken place not by any means of formal conveyance of a sale-deed, the question of its non- registration notwithstanding, but by means of a mutation attested initially on 25-5-1974 and later on 4-2-1976 when earlier mutation was found by the appellate authority as suffering from legal infirmity in that it was not attested in compliance with the requirement of section 42 of the West Pakistan Land Revenue Act.
9. 1, therefore tend to agree with learned counsel for the plaintiff-defendant and also subscribe to the finding of the learned District Judge, Mansehra, vide impugned judgment in that for the purpose of reckoning the period of limitation, it is only the mutation which should be lawfully attested and not the one which has been held by a competent forum as violative of the relevant law. Giving effect to the earlier mutation, therefore, in the context of the point of limitation in the A instant litigation, would tantamount to perpetuate an illegal order.
10. 1 have thus no hesitation in holding that in so far as the period of filing this suit for pre-emption with reference to the relevant mutation is concerned, it would be only the lawfully attested mutation that will be considered for computation of the prescribed period and accordingly the suit of the defendant --respondent herein cannot but be held within the time prescribed by section 31 of; the N.-W.F.P. Pre-emption Act, 1950.
11. On the second score, namely, the time running from the execution of the so-called sale-deed indicate at the fag-end thereof that the contention of the learned counsel for the petitioner in this behalf also does not advance his case much, for obvious reasons that at the first instance it is not a sale-deed but is simply a receipt of sale consideration of Rs.55,000 out of the total B sale consideration of Rs.60,000. And at the second instance it is an unregistered instrument. Such being the case neither Article 10 nor section 31 of the N.-W.F.P. Pre-emption Act 1950 would be applicable thereto. In my considered opinion the relevant provision of law applicable is Article 120 of the Limitation Act which prescribes a period of 6 years for filing such a suit as the instant one.
12. Reference in this regard may be made to a decision of this Court in case of Luqman v. Allah Diwaya and others (PLD 1967 Peshawar 166).
13. Be that as it may, the fact of the matter is that we are examining this case under section 115 of the Code of Civil Procedure in revisional jurisdiction of this Court which is primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction. It is contended on behalf of the petitioner that the learned appellate Court having failed to apply its mind to the question of limitation qua the taking over physical possession of the suit land tantamounts to misreading of evidence and as such the learned appellate Court failed in the exercise of its jurisdiction illegally. Proceedings, however on the assumption that the contention of the learned counsel is not ill-founded, this Court can and, in fact has made, the correction of this so-called illegality, if any, in exercise of its revisional jurisdiction by examining the question thread bare. A decision of Supreme Court in the case of Mohammad Zaman v. Zaffar Ali Khan reported in PLD 1986 SC 88 lends support to this view of mine.
14. Viewed the matter in the perspective as discussed above, this revision petition is found devoid of any merits and is dismissed hereby with no order as to costs.