Saranjam son of Nasar Ali Khan r/o Latambar, Tehsil and District Karak brought a pre-emption Suit No.468/1 of 1990 against Abdur Raziq son of Gulab Shah of the same village that was decreed in tire Court of learned Senior Civil Judge, Karak on 27-2-1994 and maintained by the learned District Judge, Karak in Civil Appeal No.43/13 of 6-10-1994 and hence this revision by Abdur Raziq vendee.
2. Abdur Raziq vendee had purchased 27 Kanals 1 Marl. Of disputed, land from one Piao Khan for a sum of Rs.1,80,000 vide Mutation No.4062 of 12-10-1989. The pre-emptive right was claimed by Saranjam Khan on grounds of contiguity and participation in amenities and appendages. After having allegedly made `Talb-e-Muwathibat' on 20-10-1989 and `Talb-e-Ishhad' on 22-10-1989 the suit was brought on 9-10-1990. Both the Courts were of the view that the pre-emptor had a superior right and had performed the `Talabs' in accordance with law. The decree was granted on payment of Rs.25,263.90 as sale consideration.
3. The learned counsel for the petitioner challenged the decree on the ground of limitation, alleging that in view of N: W.F.P. Act X of 1992 the suit was barred having been brought beyond the period of 120 days. In support Mr. Mazullah Barkandi, Advocate placed reliance upon Ghulam Nabi etc. v. Mst.
Amreezan (1995 CLC 541) wherein the sale transaction had taken place on 14-9-1987 while the suit was brought on 12-9-1988. The learned Judge of this Court had held the same to be beyond limitation while basing his decision on the previous ruling of Peshawar High Court titled Noor Khan v. Mumtaz Khan reported in (1994 CLC 1730). A perusal of both the judgments would reveal that the principle of retrospectively of N: W.F.P. Act X of 1992 laid down in Noor Khan v. Mumtaz Khan was not properly appreciated by the Hon'ble Judge in subsequent decision in Ghulam Nabi etc. v. Mst. Bibi Amreezan.
4. In N: W.F.P. Pre-emption Act of 1987 the period of limitation was fixed as one year. By promulgation of N.-W.F.P. Act X of 1992 enforced on 16-10-1992, the period of limitation was reduced to 120 days and the same was to take retrospective effect from 31-12-1991. This can be put to the only interpretation that hence the limitation of 120 days shall be considered for all suits brought on or after 31-12-1991. This was the interpretation given in Noor Khan v. Mumtaz Khan 1994 CLC 1730 of this Court and the pre-emptors were non-suited because they had brought suits on 16-3-1992 and 30-5-1992 i.e, much after the crucial date provided by Act X of 1992 in retrospectivity.
5. Although the Hon'ble Judge in Ghulam Nabi etc. v. Mst. Bibi Amreezan (1995 CLC 541) had followed the principle laid down in Noor Khan v. Mumtaz Khan rq994 CLC 730 but had riot properly applied the same to the case before him because in the case that pre-emption suit was instituted on 19-2-1988 i.e. Much prior to the crucial date 31-12-1991. The correct interpretation of the retrospectivity involved is that a period of limitation of 120 days and the provisions of N.-W.F.P. Act X of 1992 shall not apply to a pre-emption suit instituted prior to 31-12-1991. The pre-emption suit in Ghulam Nabi etc. v. Mst. Bibi Amreezan was instituted on 19-2-1988 and hence was beyond the brunt of Act X of 1992.
6. In view of the above discussion, the present suit instituted on 9-10-1990 would be deemed to be covered by a limitation of one year 4rrd not 120 days and hence is perfectly within time from the attestation of mutation on 12-10-1989.
7. The second attack of the learned counsel for the petitioner was with regard to the fulfilment of `Talb-e-Muwathibat' and `Talb-e-Ishhad' etc. As it is a pure question of fact, therefore, one would revert to the pleadings as well as the evidence in accordance therewith. The mutation having been attested on 12-10-1989, the pre-emptor claims to have had attained the knowledge on 20-10-1989 when he announced his intention to pre-empt. According to the plaint, it was at Latambar but, it was never mentioned as to what gathering it was, as to who were the persons present around and who was the one who brought the news of the sale transaction. All that was suppressed by the pre- -emptor in order to make necessary arrangements at the relevant time in accord with his own convenience.
8. Keeping in view the aforesaid suppressions in the plaint, one comes to observe in the evidence that two witnesses namely Ishaquddin and Ayub Khan are introduced as witnesses of `Talb-e- Muwathibat', without having been mentioned in the plaint. Let us see as to how they and the pre- emptor have conducted in the witness-box.
9. Saranjam Khan pre-emptor has appeared as (P.W.2). From the opening paragraph of his statement-in-chief it appears that he alongwith some other persons was sitting in Latambar Adda when somebody informed about the sale mutation whereupon the pre-emptor made `Talb-e- Muwathibat'. Here too he never disclosed the name of informer and he never disclosed that this `Talb-e-Muwathibat' was made in presence of P.Ws. Ishaquddin or Ayub Khan. According to him he subsequently came to Karak and got a notice of `Talb-e--Ishhad' drafted and it was here at Karak that Ayub Khan and Ishaquddin signed the same. From the examination-in-chief of Saranjam Khan pre-emptor one can make the only conclusion that the above two witnesses were the witnesses to the notice of `Talb-e-Ishhad' and not to the factum of `Talb-e--Muwathibat'.
10. According to pre-emptor, after having made `Talb-e-Muwathibat' on 20-10-1989 at Latambar he had gone, on duty to Bannu the next day on 21-10-1989 and then to Karak still the next day on 22-10-1989 when he got the notice scribed. P.W. Ishaquddin contradicts the pre-emptor by saying that the next day the latter came to his house and took him to Karak, meaning thereby that they had gone to Karak on '21-10-1989. He further adds that P.W. Ayub Khan was with them. He also does not remember the name of the informer. This forgetfulness on part of the pre-emptor as well as P.W. Ishaquddin is not believable because, according to Ishaquddin, the same people who were sitting in the meeting at Latambar together, were the one who used together daily, rather, they have been so gathering even up to his statement in Court. It is not known as to how every one forgot the names of such close friends who regularly got, together for fun.
11. P.W. Ayub- Khan,, another so-called witness to the factum of `Talk-e---Muwathibat', has completely demolished the pre-emptor's case by alleging that the said gathering, the furnishing of information and the making of `Talk-e---Muwathibat' had all happened on the same day when the revenue officer had come on tour and when the sale mutation in question Was attested. He added that various people had straight come to their gathering at Adda Latambar from the meeting of the Revenue Officer. It means that the pre-emptor had attained the knowledge of the transaction on the very day i.e. 12-10-1989 when the mutation in dispute was attested. He himself alleges that he had made `Talb-e-Muwathibat' on 20-10-1989 and not on 12-10-1989 when the mutation was attested. Obviously the making of 'Talb-e-Muwathibat' is delayed by eight days from the knowledge of sale transaction and hence is not at all immediate and quickly refluxed.
12. By failure to make immediate demand, the pre-emptor happens to 8 lose the right of pre- emption. Both the lower Courts have utterly failed to appreciate the evidence on record. It has been a case of non-reading as well as misreading of evidence.
13. The revision petition is accepted, the impugned judgments and decrees of both the Courts below are set aside and the pre-emption suit of pre-emptor Saianjam is hereby dismissed. Parties to bear their own costs.