' Through the instant civil revision petition Mashal Khan has questioned the correctness and legality of the judgments and decrees, dated 29-4-1989 and 6-12-1993 passed by the learned Civil Judge, 1st Class, Abbottabad and the learned Additional District Judge, Abbottabad respectively.
2. The breviate of the instant matter is that Munawar Khan the predecessor-in-interest of respondents Nos.1 to 6 had filed a pre-emption suit against the petitioner. The suit was filed on the basis of alleged sale Mutation No,3149 attested on 25-8-1974. It was resisted and the factum of sale and genuineness of mutation was denied by the petitioner. A rival suit for pre-emption was also filed by one Ayub Khan which was dismissed for default but he had not sought any redress and his matter ended there. In the meanwhile a development evented that Karam Dad father of the petitioner (alleged vendor) filed a Civil Suit bearing No,66/1 and obtained a consent decree whereby Mutation No,3149 was cancelled. The present suit was, however, decreed against which the appeal of the petitioner also failed which led to the filing of the Civil Revision No,57 of 1980 in this Court. The civil revision was accepted and the case was recommitted to the trial Court for de novo trial on 8-2-1986. In compliance to the remand order'an amended plaint was filed wherein the legal heirs of Karam Dad were arrayed as defendants. The de novo trial again resulted into the passing of a decree and the appeal of the petitioner was also dismissed as stated above.
3. The learned counsel for the petitioner has vociferously argued that both the Courts below had landed into serious error in passing the impugned judgments and decrees. He argued that the foundation of the suit for pre-emption was the Mutation No,3149 and same having been set aside by a competent Court of civil jurisdiction in Suit No,66/1 there remained no cause of action for the filing of the suit. The decree in Suit No,66/1 was obtained on 3-7-1975 and the suit property, on the death of Karam Dad, devolved on his other legal heirs. He further contended that the factum of sale in favour of the petitioner was not proved at all.
4. On the other hand the learned counsel for the respondents has defended the impugned judgments in his favour and argued that the sale transaction was proved as Mutation No,3149 was duly attested in favour of the petitioner. He contended that the decree of the Court in Suit No,66/1, though had the effect of setting aside the subject mutation, has no bearing on the rights of respondents. He further contended that the decree in Suit No,66/i was obtained by practicing fraud by the petitioner and his father Karam Dad.
5. I have heard the arguments of both the learned counsel and have gone through the record extensively with their able assistance. The right of pre-emption has been dealt with by section 5 of the N.-W.F.P. Preemption Act, 1987 which reads as follows:-- "5. Right of pre-emption.--- (1) The right of pre-emption shall arise in case of sale.
(2) Nothing contained in subsection (1) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale."
' The law is thus clear on the point that pre-emptive rights accrue only against the sale transaction.
The term sale has been defined in N.-W.F.P. Pre-emption Act, 1987 in the following diction:- "`Sale' means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of Hiba-bilIwaz or Hib-bi-Shart al-Iwaz but does not include.-
(i) ..
(ii) ..
(iii) ..
(iv) ..
(v) ...
6. The definition of the word "sale" stipulates two essential elements, i,e, permanent transfer of ownership of an immovable property and in exchange for a valuable consideration. The right of pre-emption arises in case of sale only, in other words, element of sale is sine qua non for accrual of a right of pre-emption. The case before me involves the controversy as to whether Karam Dad father' of the petitioner and respondents 7 to 9 sold the suit land to petitioner through Mutation No,3149 attested on 25-8-1974 and this being a sale transaction was amenable to the pre-emptive rights of Munawar Khan (predecessor, of respondents 1 to 6).
6. The learned trial Court while discussing Issues Nos.4, 7 and 10 had interpreted certain facts against the petitioner which led him to the formulation of an opinion that Karam Dad had sold the land in favour of petitioner during his lifetime and the validity of sale has not been challenged by defendants 2 to 5 (widow and daughters of Karam Dad), therefore, their contention cannot be resolved in a pre-emption suit. At this juncture the learned lower Court appears to be oblivious of the fact that Karam Dad had already obtained a decree in Suit No,66/1 on 3-7-1975 whereby. The Mutation No,3149 was set aside and there remained no need for widow and daughters of Karam Dad to bring any further action against Munawar Khan or for that matter against Mashal Khan. A decree was, however, passed in favour of Munawar Khan preemptor. The learned Additional District Judge while commenting upon Suit No,61/1 (which is in fact 66/1) observed that Karam Dad while challenging the Mutation No,3149 had not impleaded the plaintiff (Munawar) and that Mashal (petitioner) also concealed the decree obtained through Suit No,66/1 and by interpreting this circumstance against the petitioner recorded the finding against him. Consequently, the appeal of petitioner was dismissed. In this case a right of pre-emption was sought to be enforced against petitioner on the strength of Mutation No,3149 which was averred as a sale transaction between the father and the son as vendor and vendee respectively. The factum of sale was denied by both the vendor and the vendee and in Suit No,66/1 referied to above the sale mutation, i,e, subject-matter of the pre-emption suit was set aside as decree was passed in favour of plaintiff (Karam Dad). The basic and D an inescapable duty was cast upon pre-emptor that he should have proved that sale of the suit land had taken place. In order to prove the factum of sale it was bounden duty of Munawar Khan to prove the element of valuable consideration, i,e,, payment of money by Mashal Khan to his father Karam Dad. The record indicates that he badly failed in doing so. In support of his case the plaintiff appeared himself as P.W.2 while Patwari Halqa was examined as P.W.1. No other witness was examined. So much so that even the attesting witnesses of Mutation No,3149 viz. Muhabat Khan and Rehmat Khan were not examined. In his post-remand statement recorded on 7-5-1987 he ventured to prove the sale consideration when said that he was present' at the time of attestation of mutation which according to him was attested at Railway Station Havalian. He claimed that suit lard was purchased by petition for Rs,500 and in his presence, at the time of attestation of mutation, the sale amount was paid. He was, however, confronted with his pre- remand statement to which he answered in the following terms:--- "My statement if any recorded in my previous statement in this suit to the effect that I was not present at the time of mutation is not correct and my statement of today about my presence is correct."
' On point of payment of sale price in his pre-remand statement to a Court question he answered in the following words:-- "I was not present at the time of bargain, attestation of mutation or the payment of consideration.
My statement in connection with the payment of money is based on what I had heard. I had heard it from Muhabat Khan who was present at the mutation."
' Since he was confronted with his earlier statement, therefore, its effect cannot be ignored and has to be taken into consideration for evaluating his testimony. This is a statement not only bald and isolated, finding no support of the least degree from other evidence, but is contradicted by the mutation itself which bears an eloquent endorsement that it was attested at Takia-Sheikhan. It means that it was not attested at Havelian which is a distinct and different Mauza having no nexus with the suit land. The infirmities with which the statement of the plaintiff is fraught certainly I reduces its evidentiary value to a cipher before a digit.
8. The subject mutation also does not stand the test of section 42 of the Land Revenue Act, 1967.
Subsection (7) of the said section imperatively demands that except in cases of inheritance or where the acquisition of right is by a registered deed or by or under an order or decree of a Court the Revenue Officer shall make the order under subsection (6) in presence of the person whose right has been acquired after such person has been identified by two respectable persons, preferably from the Lambardar or Member of the Union Committee, Town Committee or Union Council concerned, whose signatures or thumb-impression shall be 'obtained by the Revenue Officer on the register of mutations. The mutation in question does not contain the signature of vendor which goes a long way to speak about his (vendor's) absence at the time of attesting the mutation.
9. Thus from the above statement of facts and law it follows that the subject mutation, which did not contain the signature/thumb impression of Karam Dad the alleged seller, the attesting witnesses were not produced in Court in support thereof and the payment of sale amount was not proved and the factum of sale was denied by both the seller and purchaser, could not be legally made the basic of a preemption suit. The suit filed on the basis of such mutation was doomed to failure.
10. Another striking feature of the case is that it was remanded by this Court on 8-2-1986 and thereafter an amended plaint was filed on 25-3-1986 wherein serious grievances were demonstrated by the plaintiff against the decree passed in Suit No,66/1 and it was averred that the said decree being the outcome of fraud and collusion was null against the rights of plaintiff and was liable to cancellation. Significantly by that time subsection (2) of section 12 had been legislated and occupied its place in the Code of Civil Procedure. This subsection was added by Ordinance No,(X) of 1980 which is to the following effect:- "(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
11. A plain reading of the above-quoted subsection makes it clear that the validity of a judgment, decree or order on the specified grounds shall be called in question by making an application to the Court which passed the final judgment, decree or order and the filing of a separate suit was clearly barred. Admittedly, the plaintiff did not file any application under section 12(2) of C.P.C. And challenged only its effectiveness qua his right in the pre-emption suit. Thus, the decree having not been set aside through an application under section 12(2), C.P.C. By the Court which passed it was alive and effectively holding the field. The Mutation No,3149 had no existence as both the decree in.
Suit No,66/1 and the said mutation could never co-exist. Thus in view of the non-existence of the Mutation No,3149 there was no foundation for the suit of pre-emption filed by Munawar Khan.
12. The subject mutation, obviously, does not contain the signature or the thumb-impression of the alleged seller, the attesting witnesses thereof were not examined in Court, the payment of sale amount was not proved, the factum of sale/purchase was denied by the alleged seller and purchaser, therefore, such a mutation could not beget a right of preemption. Thus a suit filed on the basis of such mutation was doomed to failure.
13. In view of the foregoing circumstances I firmly hold that after the decree in Suit No,66/i there was no cause of action for the preemptor to file a pre-emption suit and the decrees and judgments passed by the two Courts below cannot be maintained. Consequently, I accept this civil revision petition and set aside the judgments and decrees of both the Courts below. No order as to costs.