' Through the instant review petition, Imam Bakhsh and others, seek review of the judgment and decree dated 27-10-1984, passed by my learned brother Mr. Abdul Karim Khan Kundi, J. In Civil Revision No,49-D of 1981, whereby he accepted the revision petition filed by Mst. Amiran, respondent herein, set aside the judgment and decree of the Appellate Court dated 15-7-1981 and restored that of the trial Court dated 28-11-1979. Alongwith the review petition, an application bearing C.M.No,145/87 for condonation of delay in filing the review petition has also been filed. This judgment will dispose of both the petitions.
2. The chequered history of the case culminating in the judgment and decree under review is that Qadir Bakhsh and Murad were owners of the disputed property measuring 13 kanals 12 marlas comprising in khasra No,211 situate in mouza Ara, Tehsil and District, D.I.Khan. They entered into an oral transaction of sale of the suit land in favour of Abdul Haleem for a sum of Rs,5,500 and delivered possession to him on the spot. A receipt dated 12-3-1973 regarding the payment of sale consideration was also executed. Abdul Haleem filed a suit for declaration of title in respect of the suit land which was registered as Suit No,433/1. Qadir Bakhsh and Murad, defendants in the said suit, filed written statement wherein they admitted the sale of the suit land by them to Abdul Haleem and also acknowledged the receipt of sale consideration of Rs,5,500 as well as the execution of the receipt dated 12-3-1973 and delivery of possession under the sale to Abdul Haleem. Their statement was also recorded by the Court on the order sheet dated 9-6-1973 wherein they admitted the contents of the written statement and expressed their willingness to the passing of the decree prayed for in favour of Abdul Haleem against them. Their thumb- impressions and signatures were obtained by the Court on their statements, on the basis whereof the learned Judge, who was seized for the case, vide his judgment dated 9-6-1973 passed the decree as prayed for. Ghulam Hussain, predecessor-in-interest of Imam Bakhsh and others, review petitioners, filed Suit No, 336/1 of 1974 for possession through pre-emption of the suit land against Abdul Haleem who had been adjudged as owner on the basis of the consent decree passed in Suit No, 443/1 on 9-6-1973. Abdul Haleem, in his written statement filed on 2-7-1974, admitted the sale transaction in his favour, but denied the superior right of pre-emption of Ghulam Hussain, pre- emptor, and also raised the plea of limitation besides raising other technical objections. However, ultimately, the suit was decreed in favour of Ghulam Hussain on the basis of compromise in lieu of Rs,4,408 vide judgment and decree dated 6-1-1975 of the learned trial Judge. Out of the sale consideration Rs,1,850 were already in deposit and the balance of Rs,2,558 were paid to Abdul Haleem in Court.
3. It appears that on the basis of the original decree in Suit No,433/1, Mutation No,140 (Exh.P.W.2/1) was entered but the' same was rejected, presumably because it was in violation of Martial Law Regulation No,115. The original owners, namely, Qadir Bakhsh and Murad, continued to be recorded as owners in the Revenue Record and on the strength of these entries, a fresh mutation of sale, bearing No,210, copy Exh.P.W.2/2, was entered on behalf of Ghulam Sadiq, Sadiq Hussain, sons and Mst. Amiran, daughter of Qadir Bakhsh's half share and Murad's half share in favour of Ghulam Hussain purporting to be a sale in respect of the suit land for sale consideration of Rs,1,000. The same was, however, attested to the extent of only half share on behalf of Murad in favour of Ghulam Hussain, vide order of the Revenue Officer dated 20-8-1975. Nevertheless, the said order is silent about the other half. Mst. Amiran, daughter of Qadir Bakhsh, alone filed a suit for possession through pre-emption against Ghulam Hussain (since dead and represented by the review petitioners) in respect of half of the suit land mutated in name of Ghulam Hussain, vide Mutation No, 210, referred to above, on the ground that she was a co-sharer in the suit land, participator in the amenities and appendages and ownership of contiguous property.
4. Ghulam Hussain, predecessor-in-interest of the review petitioners, contested the suit and in his written statement specifically alleged that he had become full-fledged owner of the suit property through decree in Suit No,336/1 decided on 6-1-1975 for a sum of Rs,4,408 and that no fresh sale transaction was finalized through Mutation No,210 to give rise to the present pre-emption suit. The alleged right of pre-emption of Mst. Amiran was also denied. Necessary issues, keeping in view the pleadings of the parties, were framed and after recording evidence pro and contra, the learned trial Judge, vide his judgment and decree dated 28-11-1979, decreed the suit to the extent of half of the suit khasra number in the sum of Rs,500. Not contented with the same, Imam Bakhsh and others, heirs of Ghulam Hussain, preferred an appeal before the learned District Judge, who vide his judgment and decree dated 15-7-1981 accepted the same and while setting aside the judgment and decree of the trial Court, dismissed the suit of Mst. Amiran. Dissatisfied with the same, Mst.
Amiran approached this Court in revision which was accepted as discussed in the earlier part of this judgment.
5. Under the rules and orders of this Court, review is normally fixed and disposed of by the same Judge against whose order review is being sought. But when the same learned Judge is not available for more than six months for some reasons, there is no embargo on any Judge of the same Court to decide the review petition. Similar is the situation in the case in hand, as my learned brother, Abdul Karim Khan Kundi J, has since been posted as a Judge of the Federal Shariat Court for two years and, as such, the present review petition is being disposed of by me.
6. Arguments of the learned counsel for the parties have been heard and record of the case thoroughly scrutinized.
7. It is worthwhile to mention here that the review-petitioners had gone to the august Supreme Court against the impugned judgment under review, but on coming to know that the order of the Revenue Officer on Mutation No, 210 had specifically been reviewed by the Collector, vide his order dated 17-5-1978, they sought the permission of the august Supreme Court for withdrawal of C.P.
No,16- P of 1985 in order to file the instant review petition. Consequently, their request was allowed and their Lordships of the august Supreme Court were pleased to pass the following order:- "States that on discovery of new facts, the petitioners would file a review. They may be allowed to withdraw with permission to file again if their review fails. Request is fair and, therefore, allowed.
Disposed of accordingly." {{TABLE}} Peshawar, 17th November, 1987, (Sd.)
Muhammad Afzal Zullah, J.
(Sd.)
Saad Saood Jan, J.
(Sd.)
Mian Burhanuddin Khan J." {{TABLE}}
7. The instant review petition was submitted soon thereafter and the same was placed before my learned brother Abdul Karim Khan Kundi, J. In motion, who vide his order dated 28-1-1989, while admitting the review petition to full hearing and issuing notice to the respondents in C.M. No,145 of 1987 seeking condonation of delay in filing the review petition, ordered maintenance of status quo.
8. Dealing with the application for condonation of delay, the review petitioners, at the very outset, filed C.P. No,16-P of 1985, seeking leave to appeal and after excluding the period spent in prosecuting the same, the petition for review is held to be within the statutory period of limitation prescribed therefor under the law. I, therefore, allow C.M.No,145 of 1985 and condone the delay occasioned in filing the review petition in hand.
9. The main ground, on which the review of the impugned judgment is sought, is the order of the Collector Consolidation dated 31-3-1978, whereby the order of the Revenue Officer dated 1-8-1975 on Mutation No,210, referred to above, was reviewed and attestation of mutation in the name of Ghulam Hussain, on behalf of Ghulam Sadiq, Khadim Hussain and Mst. Amiran (heirs of Qadir Bakhsh deceased, half share) was ordered, in compliance of which the Assistant Consolidation Officer exercising the powers of Revenue Officer, attested the said mutation on 17-5-1978 in favour of Ghulam Hussain, predecessor-in-interest of the review-petitioners. The scanning of the original file shows that no reference whatsoever, of the review proceedings or the orders of the Collector Consolidation and the Assistant Consolidation Officer was made, either by the Patwari Halqa or any other person. All the Courts, including this Court, have not taken into consideration this material aspect of the case while delivering their judgments in the present case. The plea of the petitioners that they had no knowledge of the review proceedings by the Consolidation Staff or reversal of the original order dated 1-8-1975 on Mutation No,210 and its attestation, by the Assistant Consolidation Officer, vide his order dated 17-5-1978, on the strength of the order of review passed by the Consolidation Officer, appears to be plausible and stands to reason. The august Supreme Court too having been influenced by the aforementioned circumstance, permitted the petitioners for filing the instant review petition and allowed them a right for filing fresh civil petition if their prayer for review is declined. As such, I deem it just and proper to reconsider the main Civil Revision No,49-D of 1981.
10. As fully explained in the earlier part of this judgment, Qadir Bakhsh and Murad had already alienated the suit land measuring 133 Kanals and 12 marlas in favour of Abdul Haleem, which ultimately came in the ownership of Ghulam Hussain, the review petitioners, on the basis of consent decree. It is not understandable as to why Ghulam Hussain who had already acquired indefeasible title in the suit land through a decree of the Court agreed to purchase the suit land from the heirs of Qadir Bakhsh and Murad who were left with no interest in the suit land.
Considering Mutation No,140 which was rejected on account of M.L.R.No,115 and Mutation No,210, conjointly one is apt to conclude that Mutation No,210 was a device to correct the Revenue Record according to the decrees of the Court and not an independent sale transaction in favour of Ghulam Hussain on behalf of Ghulam Sadiq and others named above. Ghulam Hussain deceased in his written statement denied the existence of any fresh transaction of sale and it was, therefore, the responsibility of the plaintiff, Mst. Amiran, to have led independent evidence to establish that the earlier decree passed in the suit land had been set aside or abandoned and that Ghulam Hussain had entered into a fresh agreement of sale for a paltry sum of Rs,1,000 in spite of the fact that the earlier decrees had been passed in lieu of muchmore consideration. The learned Appellate Court, taking these important factors into consideration, arrived at the conclusion that through the suit Mutation No,210, no fresh transaction of sale had been finalized and, in consequence, by setting aside the decree of the trial Court dismissed the suit of Mst. Amiran, plaintiff.
11. After the review of Mutation No,210, the facts in issue had undergone a material change. On review of the original order passed on Mutation No,210 and its attestation in favour of Ghulam Hussain on behalf of Ghulam Sadiq and others including Mst. Amiran, she too is left with no title in the suit land and, as such, the basis, on which she claimed her superior right of pre-emption, had vanished prior to the passing of the decree by the trial Court on 2S-11-1979. Additionally, the share of her brothers and co-heirs namely, Ghulam Sadiq and Khadim Hussain in the suit land allegedly inherited by them from Qadir Bakhsh (though in fact he had no heritable right at the time of his death) also stood transferred in the name of Ghulam Hussain on the review of mutation by the Collector Consolidation. They have not challenged the correctness of the order of Collector Consolidation so far with the result that the same had attained finality. The present suit was filed only with regard to half share of Murad incorrectly mentioned in his name (in) the Revenue Record.
Even if it is held that mutation No,210 embodied an independent transaction even then the review petitioners would be deemed to be co-sharers in the suit land on the date of sale on the basis of acquisition of alleged rights of Ghulam Hussain and Khadim Hussain and they having equal right of pre-emption, the pre-emption suit filed by Mst. Amiran was liable to dismissal on this score too.
12. Nevertheless, learned counsel for the plaintiff/respondent herein stressed that the original transaction in favour of Abdul Haleem being in violation of M.L.R. No,115 was void ab initio and the pre-emption decree passed in favour of Ghulam Hussain against the void transaction did not confer any right upon the petitioners and that Mst. Amiran being the daughter of Qadir Bakhsh, had a preferential right of pre-emption against the fresh transaction of sale vide Mutation No,210. I am afraid, this submission of the learned counsel has no substance. There is nothing on the record to show that the original transaction offended against the provisions of M.L.R.No,115. The mere fact that the Revenue Officer has refused to attest the said mutation on the basis of the Court decree would not, per se, nullify the decree of the competent Court of Law. The only forum, which has the power to declare certain transaction in violation of M.L.R.No,115 is the Land Commission, or the Officer exercising powers under the Regulation itself. It is neither alleged nor proved that any such effort was made by the original vendors, Qadir Bakhsh and Murad. Even if it is presumed that Abdul Haleem was not an owner in the village and could not acquire property, still when he was substituted by Ghulam Hussain through a legal exercise of right of pre-emption, an owner in the village, hindrance in the incorporation of the consent decrees in the Revenue Record no longer remained. This objection of the learned counsel for the petitioners, being without any meritable consideration, is, therefore, overruled.
13. The upshot of the above 'discussion is that I accept the instant review petition and by reviewing the impugned judgment dismiss the civil revision with the result that the suit of Mst. Amiran,