' The petitioners' case in brief is that they had purchased the suit property, fully detailed in the heading of the plaint, for a sum of Rs,1,20,000 and that in this respect sale mutation No, 8054 was got entered by the vendor himself with the Patwari Halqa on 29-1-1989, that the mutation in question when presented for attestation in the "Jalsa-e-Aam" on 9-2-1989 the said Revenue Officer recorded the statement of the vendor and the two identifying witnesses on the mutation but did not attest the mutation on that day because the respondent (plaintiff) had also appeared on the same day before the Revenue Officer and had submitted an application dated 8-2-1989 (Exh.D.W.1/2) which was addressed to the E.A.C. Revenue (with powers of the Collector District Mansehra) and was marked by him to the Tehsildar for disposal, vide his order dated 8-2-1989. The Revenue Officer adjourned the attestation of mutation and ordered the Girdawar Circle to enquire into the allegations contained in the said application submitted by the respondent (plaintiff). It appears from the record that the respondent (plaintiff) was asked on 13-3-1989 to produce a stay order and it was made clear to her that if she failed to do the needful, in that case the mutation in question would be attested. The respondent (plaintiff) could not produce any stay order till 8-4- 1989 and as such, in the light of the order dated 9-2-1989, the said mutation was attested. The respondent (plaintiff) thus instituted the present suit (No,85/1 on 7-4-1990) in respect of the said transaction and prayed therein that a decree for possession, through pre-emption, be granted to her.
2. The suit was contested, issues were framed on the basis of the pleadings of the parties and after recording the evidence, the respondent's (plaintiff's) suit was dismissed by the trial Court (S. Asghar All Shah Kakakhel, Civil Judge-II, Mansehra) by his judgment dated 6-6-1993.
3. The respondent (plaintiff) assailed the findings of the learned lower Court before the District Judge, (Syed Yahya Zahid Gilani), Mansehra and the learned Judge while accepting the appeal set aside the judgment and decree of the lower Court and granted her a decree for the possession of the said land through pre-emption on payment of Rs,95,000. Hence the present revision petition by the petitioners (defendants) for the redress of their grievance. They have prayed that the judgment and decree of the learned lower appellate Court be set aside and that of the trial Court be restored and that the suit of the respondent (plaintiff) be dismissed with costs.
4. I have heard Mr. Zeenat Khan, Advocate learned counsel for the petitioners (defendants) and Mr. Abdul Khaliq Khan, Advocate learned counsel for the respondent (plaintiff) and have also gone through the record of the case carefully.
5. The learned counsel for the petitioners submitted at the bar that the respondent's right of pre- emption stood extinguished as she did not comply with the provisions of section 13 (1)(a) of the N.- W.F.P. Pre-emption Act, 1987 (Act X of 1987) inasmuch as she did not declare her intention to exercise her right of pre-emption in the "Jalsa-e-Aam" where the sale mutation No, 8054 (Exh.P.W.4/2) was presented before the Revenue Officer on 9-2-1989 for attestation. It was in that "Jalsa-e-Aam" that the respondent, who was present there herself, had submitted application dated 8-2-1989 (Exh.D.W.1/2) to the Revenue Officer. The Revenue Officer, therefore, adjourned the attestation of mutation and directed the Girdawar Circle to make necessary investigations in respect of the allegations contained in the said application. The learned counsel further submitted that it was accordingly incumbent upon the respondent to have declared her intention to exercise her right of preemption (Talb-i-Muwathibat) on 9-2-1989 in that "Jalsa-e-Aam". He further submitted that after making the "Talb-i-Muwathibat" under section 13(2) of the Pre-emption Act the respondent was also bound to make "Talb-i-Ishhad" by sending notices, in writing, to be attested by two truthful witnesses, by registered post acknowledgement due, to the vendee whereby she should have confirmed her intention to exercise her right of pre-emption. In other words, the learned counsel for the petitioners stated, that the registered notices should have been sent to the petitioners on or before 23-2-1989, in the circumstances of this case. However, in the present case; he stated, the notices Exh. P.W. 4/3 and Exh. P.W. 4/4 were sent to the petitioners on 12-4-1989 and, thus these notices were not within time. He also drew my attention to the fact that the notices contained the names of two attesting witnesses i,e,, Ghulam Muhammad s/o Abdul Ghani and Abdul Aziz s/o Sher Zaman, both residents of Labarkot and alleged that there is nothing on the file to suggest that these two witnesses were present in the "Jalsa-e-Aam" on 9-2-1989, when the sale mutation (Exh. P.W. 4/2) was presented before the Revenue Officer for, attestation. He also took me through the statements of these two witnesses, recorded by the trial Court, and stated that both these witnesses were not "truthful witnesses" as according to him, Ghulam Muhammad (P.W. 4), who is also the special attorney of the respondent, it was on 11-4-1989, when he was sitting in his house alongwith other witness Abdul Aziz (P.W. 5), when in the meantime the respondent came there and informed them that she had come to know about the sale in question on that day and that she intended to pre-empt the said transaction and that, therefore, "Talb-i- Muwathibat" was made by her in his presence. This witness further stated that on the very next day i,e,, on 12-4-1989 the plaintiff sent two separate notices (Exh. P.W. 4/3 and Exh.P.W.4/4) to the petitioners. The learned counsel for the petitioners then read out the statement of other attesting witness of the notice, Abdul Aziz and stated that Abdul Aziz (P.W. 5) in his examination-in-chief had stated that it was in his house, where Ghulam Muhammad (P.W. 4) was sitting, when in the meantime, the plaintiff arrived there and informed them that she has been told about the sale of the suit land and that she intended to pre-empt the transaction in question. That in that way the respondent made "Talb-i-Muwathibat". The learned counsel further stated that this witness went on to say that, on the following day, he approached Syed Abdur Rehman Shah, Advocate, on behalf of the respondent/plaintiff and that the notices (Exh.P.W.4/3 and Exh. P.W. 4/4) were prepared/scribed by the said Advocate Syed Abdur Rehman Shah and despatched to the petitioners (defendants) through registered post. The learned counsel for the petitioners contended that both these witnesses were residing in different houses and that both of them had stated that the "Talb-i-Muwathibat" was made by the respondent (plaintiff) in their houses. In this respect he took me through the cross-examination of Abdul Aziz (P.W.5) who admitted as under:-- "The distance between my house and that of Ghulam Muhammad will be about 20/25 yards.
Ghulam Muhammad (P.W. 4) was sitting in my house I and Ghulam Muhammad were sitting in my house at about 2-30 p.m. When Mst. Bibi Amrezan came to my house and there she had heard about the attestation of mutation When Mst. Bibi Amrezan came to my house, at that time besides me and Ghulam Muhammad many other persons/inmates of the house were present there. After about 10/15 minutes of the arrival of the plaintiff Mst. Bibi Amrezan, I and Ghulam Muhammad accompanied her to the suit property. There she uttered the words that she will pre-empt the suit property."
6. The learned counsel for the petitioners stated that both these witnesses were not at all truthful witnesses as they have contradicted each other; on oath, in respect of the place where the respondent (plaintiff-preemptor) had made the "Talb-i-Muwathibat" and, therefore, their evidence could hardly inspire confidence and had to be discarded straightaway. He further submitted that under section 31 of the N.-W.F.P. Pre-emption Act, as amended by Act X of 1992, the respondent (pre-emptor) was bound to institute the present suit within 120 days from the date of attestation of mutation i,e,, on or before 8-4-1989, that the present suit was instead instituted on 7-4-1990 and is hopelessly barred by time. In this respect, he placed reliance 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, Peshawar, has held:-- "(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 preemption 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. [pp. 733, 734]."
7. On the other hand, the learned counsel for the respondent (plaintiff) submitted that the respondent had made "Talb-i-Muwathibat" on 11-4-1989 in the presence of Ghulam Muhammad (P.W.4) and Abdul Aziz (P.W. 5), who were truthful witnesses, and that on the very next date (12-4- 1989) notices (Exh. P.W. 4/3 and Exh. P.W. 4/4) were sent to the petitioners/defendants. He further alleged that the present suit was instituted on 7-4-1990 well within one year from the date of attestation of mutation in question and that when the suit in hand was instituted the law relating to limitation was not changed. According to him, at that time, the period prescribed for filing a suit for pre-emption was one year. He stated understood in this sense the action was not barred by time.
He further stated that the respondent/plaintiff, who is admittedly a co-sharer, having a superior right of pre-emption was rightly granted a decree for the possession of the suit land through pre- emption on payment of Rs,95,000 by the learned lower appellate Court. He prayed that this revision petition, being devoid of any substance/merit, is therefore liable to be dismissed with costs.
8. Having gone through the record of the case and the case-law cited, at the Bar, I respectfully follow the observations and the judgment of My Lord, A the Chief Justice, Peshawar High Court, Peshawar in the above-cited case. As a result thereof I agree with the contention of the learned counsel for the petitioners (defendants) and hold that the respondent (plaintiff) had failed to make "Talb-i-Muwathibat" on 9-2-1989, when she appeared before the Revenue Officer in the "Jalsa-e- Aam" in person and submitted application (Exh. D.W. 1/2) before him. That she had also failed to institute the present suit on or before 9-6-1989 (within 120 days of the attestation of impugned mutation) and as such her suit is badly barred by time.
9. This revision petition is accordingly accepted, the judgment and decree dated 3-5-1994 of the learned appellate Court is set aside and the plaint is rejected under Order VII, Rule 11(d), C.P.C. With costs.