' The only question which has been agitated before me is that the suit of the respondent/plaintiff having been instituted on 19-2-1988 was barred by time because the mutation in question bearing No, 7728 was attested on 14-9-1987, that the respondent/plaintiff had made "Talb-i-Muwathibat" on 21-9-1987 as stated by Ghulam Muhammad (P.W. 3), the attorney of the plaintiff (respondent) as well as Iqbal s/o Abdul Rehman (P.W. 5), that thereafter notice of "Talb-i-Ishhad" (Exh. P.W. 3/7) was sent to the petitioners (defendants) which they had received vide. Acknowledgement Due Exh.P.W.3/3 (defendant Ghulam Nabi), Exh. P.W. 3/4 (defendant Ghulam Akbar), Exh. P.W. 4/5 (defendant Fazal-e-Khaliq) and Exh. P.W. 4/6 (defendant Muhammad Hanif), that the respondent (pre-emptor) was accordingly bound to institute the present suit within 120 days from the date of attestation of the mutation as prescribed under section 31 of the Pre-emption Act X of 1987 (As amended by N.-W.F.P. Pre-emption Act X of 1992). The learned counsel submitted that the present suit should have been filed on or before 14-1-1988 i,e,, 120 days from the date of attestation of mutation or, at best, on 22-1-1988 i,e,, 120 days from the date of "Talb-i-Muwathibat" / "Talb- iIshhad". Since the present suit was instituted on 12-9-1988, therefore, it was hopelessly barred by time and as such the revision petition, in hand, be accepted and the plaint be rejected under Order VII, Rule 11(d), C.P.C. Reliance was placed on case Noor Khan v. Mumtaz Khan etc. Reported in 1994 CLC 1730 wherein His Lordship, Mr. Justice Abdul Karim Khan Kundi, the Chief Justice Peshawar High Court, Circuit Bench, D.I. Khan held as under:- "(a) Pre-emption Act (N.-W.F.P. Act X of 1987)-- ' S. 31 (as amended by N.-W.F.P. Act X of 1992)---Effect of substitution of one year by 120 days as limitation time for filing of pre-emption suit--Amendment Act (1992) has been given effect from 31- 12-1991 and shall be applicable even from date of its commencement to exercise of pre-emption suit by instituting suit within 120 days of sale whether effected before or after 31-12-1991. All suits filed beyond prescribed period of limitation of 120 days shall be deemed to be time-barred. Plaints of such suits shall be liable to rejection under rule 11(d), O.VII C.P.C. As such suits would appear to be barred by law from statement in plaint."
2. On the other hand, the learned counsel for the respondent (plaintiff) submitted that in this case the mutation was attested on 14-9-1987 and the present suit was instituted on 12-9-1988, well within one year from the date of attestation of mutation. Elaborating his argument, he has brought to my notice that when the suit was instituted the law relating to limitation was not changed.
Before the amendment, the period prescribed for filing a suit for pre-emption was one year.
Understood in this sense, the action was not barred by time and the learned lower appellate Court had rightly granted a decree for the possession of the suit land to the respondent/plaintiff.
3. Having gone through the record of the case I respectfully follow the observations and the judgment of My Lord, the Chief Justice, Peshawar High Court, Peshawar in the case cited above. As a result thereof I agree with the contention of the learned counsel for the petitioners (defendants).
The mutation was attested on 14-9-1987 and "Talb-i-Muwathibat" and "Talb-i- Ishhad" were made on 21-9-1987 and 22-9-1987 respectively, therefore, the present suit should have been instituted on or before 22-1-1988. Since the present suit was riled on 12-9-1988, long after the expiry of 120 days, therefore, the suit of the respondent (plaintiff) is barred by time under section 31 of the Pre-emption Act.
4. This revision petition is accepted, the judgment and decree of the learned lower appellate Court is set aside and the plaint is rejected under Order VII, Rule 11 (d), C.P.C. With costs.