' The short background of the instant revision petition is that a suit for possession through the enforcement of the pre-emptive rights qua an area of 63 Kanals and 5 Marlas was instituted by the petitioner in the Court of Civil Judge-III, D.I. Khan. The cause of action was claimed on the basis of Mutation No,1227 attested on 15-12-1997. The suit was filed by the petitioner on 2-1-1998. The defendant appeared in the trial Court who resisted the suit of the plaintiff by filing his written statement on 24-4-1998. However, prior to the filing of the written statement, the respondent/ defendant filed an application on 15-1-1998 under Order 7, Rule 11, C.P.C. For rejection of the plaint on the ground that after purchasing the suit land by the respondent, he struck a bargain with one Ghulam Rabbani Shah son of Ghulam Raza Shah and had statedly delivered possession of the suit land to him on 30-8-1997. An entry was also said to be made about this transaction in the Revenue Record on 31-8-1997. It was addedly averred by the respondent that a power of attorney was also executed by respondent in favour of Ghulam Rabbani Shah vide deed No,1196 on 30-10-1997. The said Ghulam Rabbani Shah thereafter, entered a Mutation No,1308 on 8-12-1997 in favour of his wife Mst. Khurshid Bibi and statement to that effect was recorded on 13-12-1997. However, uptil now, the said Mutation No,1308 remained unattested. Thus, according to the respondent, the suit land having been further sold, the petitioner had no cause of action against the respondent.
2. The learned trial Court after hearing the rival arguments of both the adversaries accepted the application of respondent under Order 7, Rule 11, C.P.C. And plaint of the petitioner was rejected on 30-7-1998 on the ground of having no cause of, action against the respondent. The appeal filed by the petitioner was also fated to its dismissal for the reasons contained in the judgment of the Appellate Court, dated 24-3-1999.
3. The petitioner, feeling aggrieved of such rejection of his plaint, has come to invoke the revisional jurisdiction of this Court under section 115, C.P.C.
4. The learned counsel for the petitioner contended that the rejection of plaint under Order 7, Rule 11, C.P.C. By the learned trial Court and the dismissal of appeal of the petitioner by the learned District Judge, D.I. Khan was legally incorrect and is open to interference by this Court. He contended that the petitioner was equipped with the rights of pre-emption on 15-12-1997, i,e, the day when Mutation No,1227 was attested and after due compliance with the legal requirements of making the requisite Talabs of Mawathibat and Ishhad, the petitioner resorted to Talab-e-Khusumat by filing the instant suit well in time, i,e, 2-1-1998. He further submitted that the "so-called further sale" to Ghulam Rabbani Shah, or for that matter to Mst. Khurshid Bibi as still further sale, was virtually device subsequently, manufactured by the respondent with mala fide intention to deprive the petitioner from his legal right of pre-emption. His sync submission was that the execution of power of attorney in favour of Ghulam Rabbani Shah is not a sale-deed, nor any transaction of sale can necessarily be imported therefrom and, as such, no right of pre-emption can be enforced on the basis of a power of attorney simpliciter. He folded his arguments on the point that Mutation No,1308 was simply entered and that too was kept secret from the petitioner, as both Ghulam Rabbani and the respondent were stead-fastly in pursuit of the accomplishment of their scheme to deprive the petitioner from his legal right of pre-emption. Even if it was known to the petitioner that Mutation No,1308 was entered in the name of Mst. Khurshid Bibi, still it could not give a right of pre-emption to petitioner until the mutation was attested.
5. On the contrary, the learned counsel appearing for respondent defended the impugned orders of the lower Courts on the reasons given therein and submitted that the petitioner had the knowledge of subsequent transaction to what he called sale, but still the petitioner filed the suit against the respondent ignoring the subsequent vendee. Thus, for want of cause of action, the plaint was rightly rejected, said the learned counsel. To a question as to whether Mutation No,1308 was attested by now, i,e, till the hearing of this revision petition, it was answered by the learned counsel for the respondent that due to stay order issued by the trial Court, it was not attested. It is, however, significant and strange that the said stay order stood vacated on the rejection of plaint on 13-7-1998, but uptil this day (15-10-1999), the said mutation remained unattested, notwithstanding the fact that no stay order subsequent to the rejection of the plaint was issued.
6. For the purpose of resolving this issue, a reference can be made to section 5 of the N.-W.F.P. Pre- emption Act, 1987 (Act X of 1987), which speaks that the right of pre-emption shall arise in case of sale. Thus, viewing the instant matter in the light of power of attorney executed by Zulfiqar (respondent) in favour of Ghulam Rabbani Shah, or the ensuing entry of Mutation No,1308, which has not attained the authenticity of attestation by the concerned Revenue Officer, it is not difficult to understand that such document, i,e, power of attorney or a mere unattested mutation would, in the least, import an irresistible conclusion of sale, which undoubtedly is a sine qua non for the enforcement of a right of pre-emption. In any suit of preemption based on a power of attorney, or on a mere entry in the register of mutations, the factum of "no sale" can effectively be pleaded by the defendant. Thus, in such statement of facts and law, I feel no hesitation to hold that the sale effected through Mutation No,1227 in favour of respondent had not been legally transferred or transcribed to some other person, was subsisting for the purpose of pre-emptive rights of petitioner, unless it is proved through cogent evidence that respondent had practically denuded himself of the ownership of suit land by transferring the physical possession thereof to Ghulam Rabbani Shah.
7. It may be observed that the factum of subsequent sale to Ghulam Rabbani Shah could only be determined when the parties were allowed to produce pro and contra evidence and after recording such evidence and its evaluation on the touch-stones of the principles governing the appreciation of evidence. I have noted with concern that both the Courts below have concluded without evidence that the petitioner was in knowledge of subsequent sale and this belief was formed by the trial Court and affirmed by the Appellate Court by looking into the extract from Roznamcha Waqiati (Daily diary of Patwari) with Rapat No,551, dated 31-8-1998 as well as attested copy of the general power of attorney executed in favour of Ghulam Rabbani Shah. No witness was examined in Court to substantiate the Roznamcha Waqiati so that the petitioner could get a chance to cross-examine. No witness was examined to prove the factum of delivery of physical possession to the subsequent vendee.
8. The learned counsel for the petitioner has, in his arguments, conveyed the mind of petitioner that he wanted and still wants to array the said Ghulam Rabbani Shah and his wife Mst. Khurshid Bibi as defendants but the rejection of his plaint frustrated his intention. The above discussion shows that the Courts below have legally erred to be influenced by certain documents which did not assume the legal character. Moreover, the attributing of knowledge to the petitioner qua the transfer of physical possession of the suit land to the statedly subsequent purchaser is not the outcome of any legal evidence. Thus, no consequential responsibility could be placed on petitioner so as to deprive him of his valuable legal right. The rejection of plaint under Order 7, Rule 11, C.P.C. Was an over haste which has resulted into grave miscarriage of justice.
9. I, therefore; in wake of the above circumstances, am obliged to hold that the orders of the two Courts below are tainted with legal infirmities and, as such, I accept this revision petition and remand the case to the trial Court with the direction that the plaint be registered to its original number and trial of the case be conducted in accordance with law by giving full opportunity to both the parties to adduce the evidence of their choice. The office is directed to remit the case file forthwith to the trial Court.