' Sher Afzal Khan and one Hidayatullah Khan filed two separate suits for possession through pre- emption of land measuring 32 Kanals 5-1/2 Marlas situated at Tarnab Tehsil and District Charsadda in the Court of learned Civil Judge Charsadda against the petitioners. The said suits were contested by the petitioners by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed both the suits vide judgment and decree dated 14-3-1984. Respondents Sher Afzal Khan and others filed appeal against the judgment and decree of the learned trial Court in the Court of learned Additional District Judge Charsadda which was partially accepted. The judgment and decree passed by the learned trial Court was modified vide judgment and decree dated 20-3-1985.
2. Hidayatullah Khan did not file any appeal against the judgment of the learned trial Court.
3. The petitioners being aggrieved of the judgment and decree dated 20-3-1985 passed by the learned Additional District Judge Charsadda, filed Civil Revision No,724 of 1985 and 761 of 1985 in this Court. Both the revision petitions were accepted vide judgment/decree dated 26-3-1994. The impugned judgment/decree was set aside and the case was remanded back to the learned Appellate Court with the directions to decide the appeal afresh after recording additional evidence of the parties. The learned Appellate Court recorded the statement of Patwari Halqa and after hearing the learned counsel for the parties accepted the appeal vide judgment and decree dated 26-9-1995. The judgment and decree passed by the learned trial Court was modified. Being not satisfied with the said judgment and decree, the petitioner has filed Civil Revision No,15 of 1996 whereas Sher Afzal Khan and other have filed Civil Revision No,28 of 1996. I shall decide both the C.Rs, through this single judgment as both emanate from the common judgment and decree dated 26-9-1995.
4. Mr. Mazullah Barkandi, Advocate the learned counsel representing the petitioners in Civil Revision No,15 of 1996 and respondents in Civil Revision No,28 of 1996 argued that Sher Afzal and other plaintiffs had no superior right of pre-emption at the time of filing of their suit and this fact was also acknowledged by the learned trial Court while dismissing their suit. They claimed to have acquired land by virtue of inheritance Mutation No,4056 attested on 20-1-1979. Reliance in this regard was placed on Behram Khan v. Sher Akbar Khan (PLD 1960 Peshawar 1). If however, during the pendency of the suit, they have acquired any right of pre-emption they could not be granted decree on the basis of these rights.
5. It was also argued that the learned Appellate Court has misread and non-read the evidence in the partial decree has been granted on the basis of contiguity. Khasra Nos.395 and 1402 for land comprising Khasra Nos.1795/1398 and 1797/1399 but the Goshwara Mulkiat Exh.P.W.1/3 show that respondent Sher Afzal Khan and others/plaintiffs were owners of land comprising Khasra Nos.1395 and 1402. In the said exhibit Khasra No,1395 has been shown to be in the ownership of Shah Wali Khan and others and Khasra No,1402 of Azizur Rehman and others. This document was conveniently ignored by the learnd Appellate Court.
6. It was further argued that at the spot Khasra No,1797/1399 does not exist any more. The said Khasra number was bifurcated and was given No,"1797/13991". The newly carved Khasra was later on allotted to one Azad Khan during the land Reforms Proceedings as is clear from Exh.C.W.1/3.
7. It was further argued that the impugned Mutation No,5030 was attested on 8-5-1975 Exh.D.W.2/2, whereas the suit was filed by respondents on 7-5-1976 which was barred by two days.
8. On the other hand Mian Muhammad Younis Shah the learned counsel for the respondents argued that the suit filed by the respondents/plaintiffs was within time that is the reason that no issue with regard to the time limitation was framed by the learned trial Court. Moreover, the limitation was to be calculated under section 25 of the Limitation, according to the English Calendar.
9. It was also argued that the respondent was co-sharer in Khasra No,1,400 also. It is on record that through Land Reforms land belonging to Hidayatullah was taken by the concerned authorities.
Even if the land of the vendor/vendee was also taken in land Reform, the respondent would not be deprived of the right of pre-emption because in such an eventuality, the respondent would be entitled to the right of preemption in the lands given to the vendor/vendee in lieu of the acquired land.
10. We have heard the learned counsel for the parties perused the record.
11. The argument of the learned counsel for the petitioners that the respondents/plaintiffs had no right of pre-emption at the time of filing of their suit because inheritance mutation of Mukaram Khan No,4056 was attested on 20-1-1979, whereas the suit in hand was filed on 7-5-1976. This argument of the learned counsel has no force at all. Perusal' of the record shows that inheritance mutation of Mukaram Khan No,4056 was attested on 10-5-1973 as is clear from Fard Jamabandi for the year 197071 Exh.P.W.1/1. Suit in hand had been filed on 5-7-1976 i,e, much after the inheritance of Mukaram Khan deceased had devolved upon his L.Rs,
12. The argument that the suit filed by the respondents/plaintiffs was barred by time also has no force. Perusal of the record shows that the impugned mutation Exh.D.W.2/2 bearing No,5030 was attested on 8-5-1975, whereas the present suit was filed by respondents/ plaintiffs 7-5-1976 i,e, within one year of the period of limitation prescribed by law. It is by now settled law that as per section 25 of the Limitation Act, 1908, time is to be computed with reference to Gregorian Calendar.
The perusal of the written statement filed by the respondents shows that they did not raise the objection with regard to period of limitation and that was the reasons that the learned trial Court did not frame any issue as to whether the suit filed by the respondents/plaintiffs was within time or not?. Since the question of limitation is mix question of facts and law, therefore, the same should have been raised at the initial stage so that the Courts below had thrashed the same, but as mentioned above, no objection was taken by the petitioners, therefore, no evidence was led by the parties with regard to the time limitation. However, when we calculated the time period, we came to the conclusion that the suit was within time.
13. The argument of the learned counsel for the petitioners that the judgment of the learned Appellate Court is based on misreading/nonreading of evidence and on the spot Khasra No'.1797/1399 does not exist has no force at all. Perusal of Aks Shajara Kishtwar Exh.P.W.1/2 shows that Khasra No,1399 exists on the ground. The learned Appellate Court while appreciating the evidence of the parties and documents produced on record more specially Aks Shajara Kishtwar Exh.R.W.1/10 and Goshwara Mulhiqa Malikan Exh.R.W.1/6 can. To conclusion that respondents/plaintiffs Sher Afzal etc. Had been recorded as owners of Khasra Nos.1395 and 1400.
Khasra No,1395 was adjacent to Khasra No,1398 whereas Khasra No,1402 was contiguous to Khasra Nos.1399 and 1400. The respondents/plaintiffs were granted partial decree to the extent of 8/16 shares in Khsara Nos.1795/1398 and 1797/1399, but they were not given decree for land comprising Khasra No,1400 as the same has been assumed by the Land Collector under the Land Reforms Regulation and had been transferred to Azad Khan vide Mutation No,1580 Exh.R.W1/13. At this stage a question arises as to whether the respondents/plaintiffs were entitled for grant of decree for the land comprising Khasra No,1400 when the same has been found contiguous with their land and whether the assumption and its transfer to any other person would make any difference, answer to this question is that if land comprising Khasra No,1400 had been assumed by Land Collector under the Land Reforms Regulation and transferred to Azad Khan, the same would not disturb the pre- existing right or other encumbrances in respect of land assumed by the Collector. The pre-emption suit had to be decided on merits in respect of disputed land notwithstanding the assumption by the Collector under the Land Reforms Regulation. After the decree is passed in favor of pre-emptor he can chase the land allotted to judgment-debtor under the Land Reform Regulation in lieu of preempted land and for this purpose the pre-emptor was not required even to seek amendment of the plaint or modification of the decree. Reliance in this regard is placed on Muhammad Shafi and 2 others v. Boota through Legal Heirs and another (1994 CLC 1065) in which it was held:- "After hearing learned counsel for the parties, I find that arguments of the respondents' learned counsel carry considerable weight. The disputed property was sold by Mst. Rasool Bibi out of the joint Khasra which remained subject to pre-emption notwithstanding its partition through consolidation proceedings. The consolidation operations/do not disturb the pre-existing rights or other encumbrances in respect of the land allotted during consolidation operations. The pre- emption suit had to be decided on merits in respect of the disputed land notwithstanding the commencement of consolidation proceedings. After the decree is passed in favor of the pre- emptor, he can chase the land allotted to the judgment-debtor during consolidation proceedings in lieu of the pre-empted land. For this purpose the pre-emptor is not required even to seek amendment of the plaint or modification of the decree.
14. Similarly in Qaim Din v. Said Ahmad and another (PLD 1967 Lahore 1171) it was held:-- "The burden and benefit of a right of pre-emption are incidents annexed to the land belonging respectively, to the vendor and the pre-emptor and is not the right merely one of re-purchase, which a neighbour or co-sharer enjoys under Muhammadan Law, and which he can enforce personally against the vendee in whom the title to the property has already vested b, sale.
' To the same effect are observations of Clark, C.J. In Faqir Ali Shah v. Ram Kishan and others (133 P.R. 1907) where he held that it is a right or burden which runs with the land. Also see Mirza Sadiq Hussain and another v. Muhammad Karim and others (70 I.0 53 (Oudh) for the same and also Muhammad Ayub Khan and another v. Rure Khan and others (95 P.R. 1901). If this view is correct, then I have no hesitation in holding that the right of pre-emption being a burden on the old land it must fall on the new land according to section 13 of the Consolidation Act."
15 Keeping in view the above discussion, I dismiss Civil Revision No,15 of 1996 (Akbar Khan and others v. Sher Afzal Khan and others) and partially allow Civil Revision No,28 of 1996 (Sher Afzal Khan and others v. Akbar Khan and others) and modify the judgment and decree dated 26-9-1995 passed by the learned Additional District Judge, Charsadda and hold Sher Afzal Khan etc., entitled to 8/16 shares of land comprising Khasra Nc.1400. They can chase the land allotted to vendees in lieu of land assumed by Collector under the Land Reforms Regulation of Khasra No,1400. The rate of the land shall be the same as fixed by the learned Additional District Judge, Charsadda. There shall, however, be no orders as to costs.