' Petitioner's suit for pre-emption in respect of residential house situated in Mohallah Jalal Shah/Mohallah Kumbaranwala D.I. Khan city bounded by house of Baga and plaintiff/petitioner towards North, public thoroughfare towards south, house of plaintiff/petitioner and thoroughfare towards east and public thoroughfare towards West was rejected under Order 7, Rule 11 (d) of the C.P.C. Vide judgment and decree dated 18-7-1995 of the trial Court. Petitioner preferred an appeal to the Court of District Judge which was heard and dismissed by the Additional District Judge, D.I.
Khan vide impugned judgment dated 22-4-1997. Hence as a last resort this revision petition.
2. It was averred in the plaint that the house under pre-emption owned by respondent No,3(vendor/defendant No,3) was collusively sold away to respondents 1 and 2 (vendees/defendants 1 and 2) secretly and without notice to petitioner against a sale consideration of Rs,24,000 but the transfer of possession was suspended till 30-114993.
3. On 30-11-1993 after getting the knowledge of sale, petitioner announced his intention as 'Talb-e- Muwathibat' to exercise of his superior right of pre-emption immediately but without mentioning the time, place and informer. Subsequently on inquiry it transpired that the respondents/defendants collusively and fraudulently executed and registered an exchange deed instead of a sale on 1-12-1993 and its copy was obtained and on the following day, i.e, 2-12-1993 registered notices to receive sale consideration and relinquish possession to him were executed and sent to each of the respondents/defendants through registered post with A.D. Card on 6-12- 1993 but they refused to receive the same. The original notices were stated to be in possession of vendees/respondents 1 and 2.
4. It was alleged in the plaint that in fact the transaction between the parties is a 'sale' as no property was given to respondent/defendant No,3 in exchange mentioned in the deed, but with intent to defeat the pre-emptive rights of the petitioner, the deed was termed as an exchange deed as a last demand Talb-e-Khasumat. The suit was filed on 12-12-1993 and the cause of action Was alleged to have accrued to him on getting the knowledge of transaction on 30-11-1993 when possession was transferred. Alongwith the plaint, he annexed copy of notices issued to respondents Nos. 1 and 2 and an application for condonation of delay from 17-11-1993 to the date of institution of the suit i.e, 12-12-1993 if the suit was found time-barred. It was contended in the application that the plaintiff/petitioner is serving in the U.B.L. Posted at Miranshah but recently transferred to Bannu Branch. The respondents/defendants did not inform him as required by pre- emption law and the transfer of possession was also suspended till 30-11-1993. Petitioner got the knowledge of sale on 30-11-1993 and thereafter, raised the required demands. As no prior notice was served upon the petitioner, therefore, he could not get the knowledge of registration of the deed and came to know of the sale transaction when possession was transferred on 30-11-1993.
5. The suit was contested by the respondents/defendants through a joint written statement, wherein apart from denying the facts alleged in the plaint, legal objections were also raised which includes the non-availability of cause of action to petitioner/plaintiff against an exchange, non- compliance of required "Talbs" under pre-emption law and that the suit was liable to be dismissed being time-barred.
6. During the proceedings, the defendants/respondents submitted an application for dismissal of the suit being, prima facie, time-barred. The application was resisted by the plaintiff through filing replication on the ground that since the Court has entertained the suit, the petitioner's application for condonation was virtually allowed, that issue of limitation can only be resolved through evidence and that Registrar has not issued any notice regarding disputed deed No,625 dated 20- 74993 as required under section 32 of the N.-W.F.P. Pre-emption Act, 1987.
7. The grounds taken and arguments advanced by respondents/defendants prevailed upon the trial Court who rejected the plaint under Order VII, Rule 11(d) of the C.P.C. Through an elaborate judgment dated 18-7-1997. In appeal too, the learned Additional District Judge found the suit filed beyond the time limit and in addition to that it was held that since plaintiff/petitioner had not mentioned the date, time, place and name of informer in the plaint, the suit was held as not maintainable for want of prerequisites (Talabs) and the appeal was dismissed on 22-4-1997.
8. Mr. Gauhar Zaman Khan Kundi, Advocate, learned counsel for the petitioner contended before me that it was mandatory for the registering authority under section 32 of the N.-W.F.P. Pre- emption Act to have issued a notice within two weeks after registration of the deed. The purpose of section 32 is to inform all the concern and no one should take benefit of concealment of transaction/deed. The non-compliance of section 32 would effect the application of section 31 whereunder a suit for pre-emption is required to be filed within 120 days from the date or Registration of the deed. Therefore, the compliance or non-compliance under section 32 has an impact on the application of section 31. Giving effect to section 31 notwithstanding the provision contained in section 32 would make the provision of section 32 redundant.
9. The learned counsel also referred to section 12 whereunder the vendors are made liable to issue notice of his intention to sell, to all those persons who are having a right of pre-emption. The intention of Legislature appears to protect the right of pre-emption against a secret/concealed transaction. He also referred to section 13(3) wherein it is laid down that a pre-emptor shall give a notice of "Talb-e-Ishhad" within two weeks from the date of notice under section 32 or from the date of knowledge whichever is earlier. Thus, the issuance of notice under section 32 is mandatory and not obligatory. In view of this legal position, it was maintained that since petitioner had got the knowledge on 30-11-1993, the limitation will start to run from that date, as neither notice under section 12 nor under section 32 of the Act (ibid) was issued or served upon the petitioner. In support of his contentions reliance was placed on Muhammad Ramzan v. Lal Khan (1995 SCM R 1510) wherein it has been held that under section 31(1) it is incumbent upon the Registration Officers to give public notice in respect of such registration within two weeks. Section 31(1) of the Punjab Pre- emption Act, 1991 is the verbatim copy of the section 32(1) of the N.-W.F.P. Preemption Act 1987 (Act X of 1987). Also relied upon Muhammad Rauf v. Mir Sahib Khan (1992 M LD 1) wherein it was held that under section 32 of the Act X of 1987 the Registrar registering a sale-deed is bound to give a public Notice. Further, argued that limitation is a mixed question of law and fact and the trial Court had rightly framed an issue on the preliminary ,objection of respondent/defendants but the trial Court had illegally and erroneously applied Order VII, Rule II (d) of the C.P.C. Reliance in this context was placed on Ghulam Rasool v. Haroon Khan reported in 1996 CLC 1517.
10. Mr. Dost Muhammad Khan, Advocate, learned counsel for respondents while refuting the contentions of petitioner's counsel submitted that sections 31 and 32 of the N.-W.F.P. Pre-emption Act, 1987 (Act X of 1987) are independent from each other and the non-compliance of section 32 by Registration Officer will not enlarge the time limit in different eventualities given in section 31. The impact of both the said sections had been thoroughly examined in the case of Noor Khan v.
Mumtaz Khan (1994 CLC 1730) which still holds the field. It was held therein that though section 32 cf Act X of 1987 has been coached in the mandatory language but there has not been prescribed and provided for a penalty in case of non-compliance. It was further observed by the then Chief Justice in the cited judgment that registration of the sale-deed, attestation of mutation in the assembly or taking physical possession are knowledge as notice to public at large and for this reason the Legislature had provided in unequival terms that period of Limitation will run from registration of the sale-deed attestation of mutation or physical possession as the case may be from the date of knowledge.
11. Also relied upon Rahim Dad v. Abdul Karim (1992 M LD 2111) wherein it was held that Registration of a deed is by itself a notice to public at large. He further submitted that evidence is required only when there is a dispute on a fact while in the instant case petitioner/plaintiff has admitted that his suit is barred by time, therefore, application for condonation was presented. In such a situation it would be futile exercise to record evidence on the admitted question of law regarding limitation. In such circumstances, the Court can competently exercise powers under Order VII, Rule 11 of the C.P.C. In this respect, he relied upon Sahib Khan v. Mir Adam Khan (1998 SCM R 663) wherein it was held that question of rejection of plaint should be dealt with at the initial stage, and on considering the plain averment of plaint and the details mentioned therein it was held that Court below has rightly rejected the plaint under Order VII, Rule 11 of the C.P.C.
12. After hearing the learned counsel on both the sides and going through the record, the legal provisions on the subject and the cited judgments, I come to the conclusion that this revision petition merits dismissal. It is an admitted fact that the disputed transaction was executed on 20- 7-1993. The allegation that plaintiff/petitioner had come to know of the said transaction on 30-11- 1993 when possession of the suit house was transferred to respondents, the alleged vendees, is no excuse in the eye of law as observed in 1992 M LD 2111 referred to above. The plea of pre-emptor that sale-deed was cancelled by the vendee to prevent him from the exercise of his right of pre- emption cannot be accepted being without substance, because registration of a sale-deed is by itself a notice to public at large.
13. The contention that non-compliance of section 32 by the Registering authority would enlarge the time limit for petitioner to file the suit after getting the knowledge is also baseless. Section 32 is relevant for issuing a notice of "Talb-e-Ishaad" and has got no concern or overriding effect on section 31 which provides a time limit for institution of pre-emption suit, as Talb-e-Khasumat.
Section 13 provides for making demands in a given sequence/order. The first demand of Talb-e- Muwathibat is required to be made in the same sitting/Majlis in which the pre-emptor came to know of the sale whether through registered deed, mutation, transfer of physical possession or otherwise. Then it follows the second demand of Talb-e-Ishaad, which is to be made not later than two weeks from the date of knowledge or from the date of notice under section 32 by the Registrar who had been made liable to issue notice of any sale registered within two weeks. The pre-emptor shall issue notice attested by two witnesses of his desire to pre-empt the sale within two weeks from the date of knowledge of notice which ever is earlier. Non-compliance of section 32(1) is a relevant consideration for issuing a notice of Talb-e-Ishaad. If it is alleged and established by pre- emptor that no notice under section 32 was issued by Registrar and he has served the notice within two weeks of getting the knowledge would be sufficient compliance of requirement. But in the instant case, the issuance of Talb-e-Ishaad is not a matter is issue. Then comes the third stage of institution of the suit which is governed and controlled by section, 31 as follows:- ' "Section 31. Limitation.--The period of limitation for a suit to enforce a right of pre-emption under this Act shall be one hundred and twenty days from the date (a) of the registration of the sale- deed; or (b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or
(c) On which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or
(d) of knowledge by the pre-emptor, if the sale not covered under Paragraph (a) or paragraph (b) or paragraph (c) or paragraph (c).
' It is incumbent upon a pre-emptor to file a suit for pre-emption within 120 days from the date of registration of the sale, if effected through a registered sale- deed.
14. As observed in the cited judgment 1994 CLC 1730 that though the language of section 32(1) is mandatory but no penalty had been prescribed for non-compliance thereof. For determination that whether Talb-i-Khasoomat/institution of suit was made within time, the Court has to see to the form of transaction, and not the date of notice of Talb-i-Muwathibat or Talb-eIshaad. If the sale transaction is effected through registered sale-deed, or mutation the specified time limit of 120 days shall be counted from the date of attestation of sale-deed or mutation as the case may be If the sale is effected by transfer of physical possession, then the suit must be filed within 120 days from the date of physical possession. In all the three cases noted above, knowledge of pre-emptor is immaterial. If the sale is effected by any other means not falling under the aforesaid three categories then the suit could be filed within 120 days from the date of knowledge.
15. The purpose of enactment of Order VII, Rule 11 of the C.P.C. Is to provide safeguard against vexatious claim and to maintain writ of the Court. The power under the aforesaid provisions of law can only be exercised in a suit where question of limitation is being raised and the suit is found barred by limitation on the face of it. The instant suit was filed on 12-12-1993 after 145 days of the registration of disputed deed on 20-7-1993. The delay in filing suit was not only apparent but also admitted by submitting an application for condonation of delay. Had the petitioner/plaintiff not considering his suit barred by time he should not have applied for condonation. It was observed by this Court in the judgment referred to above (1994 CLC 1730) as follows:- ' "True, section 32 read with section 13 pertaining to Talabs, pre-emptor has been required to make Talabs on gaining of the knowledge of the transaction. But the registration of a sale-deed and the attestation of sale mutation in an assembly and the taking of the physical possession of the property are acknowledged as a notice to public at large including the pre-emptor and the legislature has perhaps for that reason provided in unequivocal terms that the period of limitation shall run first from the date registration of sale-deed, second from the date of attestation of mutation and third from the date of taking of physical possession and only in the absence thereof the period limitation shall run from the date of knowledge of the transaction."
16. In the instant suit even the non-compliance of section 32 by the Registrar, has not been alleged in the body of the plaint and, thus, it shall be presumed that Registrar has given the required public notice, as it is not the requirement that notice of registration shall be served upon pre-emptor but if it is struck up on the main entrance of the mosque and on any other public place of the village, city or place where property is situated shall be considered sufficient compliance. It was observed by their Lordship of the Supreme Court in the case reported as 1995 SCM R 1510 as follows:- ' "Section 31(1) of the Act, provides that it is incumbent upon the officer registering the sale-deed or attesting the mutation of sale to give public notice in respect of such registration or attestation within two weeks as the case may be. Subsection (2) thereof envisages that the notice given under subsection (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of a mosque and on any other public place of village or the place where the property is situated. Presumption of regularity is attached to all official acts. It is not the case of the appellant that no notice was ever served by the registering authority nor evidence contrary to that has been brought on record. It would, therefore, be presumed that the appellant had due knowledge of the attestation of the mutation of sale of the disputed land within two weeks from the issuance of notice under section 31 of the Act. In the present case, the appellant had failed to make Talabs in accordance with law, therefore, the right of pre-emption is not available to him."
17. In the instant case, plaintiff/petitioner has not only failed to mention the time, place and informer but has brought the suit much after the required time limit. In these circumstances, the trial Court has rightly rejected his suit and the appellate Court has also correctly and rightly maintained the same in appeal. I, therefore, see no reason to interfere in the findings arrived at by both the Courts below and dismiss the revision petition with no order as to costs.