Land measuring 92 Kanals and 10 Marlas, situated in the area of village Rajowal, the detail of which is given in the head-note of the plaint of suit for possession through pre-emption, was sold by its owner Muhammad Fazil son of Karam Dad, resident of Kakrali, Tehsil Kharian, District Gujrat, in favour of Muhammad Ashraf (defendant) in consideration of Rs.3,92,000 vide Mutation No.1803 dated 10-7-1989. As soon as, Muhammad Hussain (plaintiff) came to know about the sale, he immediately made Talb-e---Muwathibat and Talb-e-Ishhad and announced in presence of witnesses that he having superior right of pre-emption exercises his right. This suit was contested by Muhammad Ashraf by filing the written statement, wherein, some preliminary objections including the non-fulfillment of Talbs as required under the law and that the suit being barred by time, were raised and on merits; it was contended that Muhammad Hussain (plaintiff) had knowledge of the sale on the very first day and that the suit-land was sold in consideration of Rs.4,92,000. Besides other issues, Issue No.4 "whether the suit is time-barred" was also framed.
Evidence of the parties was recorded. Finding on Issue No.4 was as under:-- "As per contention of the plaintiff asserted in para.2 of the plaint, the impugned sale mutation was attested on 10-7-1989. The present suit was instituted on 22-5-1990. Period of limitation as provided in section 30(b) of Punjab Pre-emption Act, 1991, is 4 months for such-like suits. Since this suit was instituted after 29-3-1990, therefore, it cannot get any benefit of section 35(2) of the Pre-emption Act. Even otherwise, section 35(2) of the Act has been declared as repugnant to the Injunction of Islam by the Shariat Bench of Honourable Supreme Court vide case cited as PLD 1994 SC 1. The present suit was instituted beyond 4 months, as such, the same answered is miserably time- barred. The issue is therefore, against the plaintiff."
2. Since finding on Issue No.4 was a deciding factor, therefore, it was observed by the learned trial Court that there remains no need to decide the other issues in terms of Order XX, rule 5 of C.P.C. The suit was dismissed vide judgment dated 23-1-1994.
3. While disposing of the appeal, learned Additional District Judge agreed with the finding of the learned trial Court that the suit is barred by time. Even there is no need of record of his findings on other issues. Consequently, the appeal was dismissed vide judgment dated 10-10-1994. Hence this revision petition.
4. The learned counsel for the petitioner/appellant argued that the issue of limitation was a mixed question of law and facts, therefore, without recording the evidence of the parties, the controversy could not be resolved. Even otherwise, the suit was not barred by time; that eleven issues were framed, therefore, all of the issues besides Issue No.4 should have been disposed of in the light of the provision of Order XX, rule 5, C.P.C.; that the judgment passed by the learned Court below suffers from the defect of misreading and non-reading of material on the record, therefore, the judgment passed by the learned trial Court cannot sustain in the eyes of law.
He referred to the cases reported in Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 Supreme Court 1, Mst. Bashiran s Bibi v. Muhammad Kashif Khan and others PLD 1995 Lahore 200, Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and others PLD 1968 Supreme Court 101 and Muhammad Khan v.
Subah Sadiq and another 1999 YLR 923 in support of his arguments.
5. Whereas, the learned counsel for the respondent opposed these arguments and submitted that on the question of limitation, findings of both the Courts below are in accordance with law which calls for no interference. He referred to the case of Haji Rana Muhammad Shabbir Ahmad Khan v.
Government of Punjab Province, Lahore PLD 1994 SC 1 in support of his contentions.
6. The arguments advanced by the learned counsel for the parties have been taken into consideration and it appears that the transaction of sale took place on 10-7-1989 vide Mutation No.1803. The suit for possession through pre-emption was filed on 22-5-1990. Therefore, the point for determination is as to whether this suit would be treated within any limitation or beyond that.
Section 35 of the Punjab Pre-emption Act, 1991, provided that all the decrees, judgments or orders dismissing the suit for pre-emption, instituted or pending between first day of August, 1986 and the 28th March, 1990, in which the right of pre--emption was claimed as is available under this Act, shall be of no legal effect, and such suits, have to be decided afresh on an application made by the aggrieved person, and in case of such suits, the period of limitation shall be one year and it would be sufficient if the pre-emptor establishes that he had made "Talb-e-Ishhad" in presence of two truthful witnesses. The instant suit was filed on 22-5-1990. Meaning thereby, after the period as given in section is established that the entire provision of section 35 of the Punjab Pre-emption Act, 1991, therefore, this section 35 of the Act supra is not applicable in this case. Certainly, the question worth examination is as to what is the period of limitation in such suit for possession through pre- emption which have been filed after 28-3-1990. The answer is very simple because on 22-5-1990 the Punjab Pre-emption Ordinance (V of 1990), had come into force at once. Meaning thereby, this suit was to be governed by section 30 of the said Ordinance which provided the period of limitation to be 4 months from the date of attestation of the mutation.
It may be clarified that in case of other suits, filed after coming into force of the Punjab Pre- emption Act, 1991, the period of limitation is also 4 months from the date of attestation of the mutation as provided under section 30 of the said Act. Now this Act overrides all other laws as provided in section 4 of the said Act. The Punjab Pre-- emption Act, 1913, has been repealed as provided under section 34 and that the Punjab Pre-emption Ordinance (IX of 1991) has also been repealed. Meaning thereby, firstly section 35 of the Punjab Pre-emption Act, 1991, is not applicable in any suit which was filed after 28-3-1990 and if the suit was filed after 28-3-1990, the period of limitation was governed by the Punjab Pre-emption Ordinance and if for the sake of arguments, Punjab Pre-emption Act, 1991, is presumed to be applicable is such-like cases, even then, the period of limitation would be 4 months from the date of attestation of mutation.
7. When the date of filing of the suit i.e. 22-5-1990, is an established fact, therefore, there was no need to record any evidence of the parties on Issue No.4. The suit for possession through pre- emption from all angles was barred by time and both the Courts below arrived at a correct conclusion. Therefore, the judgments passed by the Courts below being consistent on a crucial point call for no interference. Even when the findings on Issue No.4 was fatal for the entire case, there was no justification to proceed further in deciding the other issues.
8. In view of the above discussion, judgment dated 23-1-1994 passed by the learned trial Court and judgment dated 10-10-1994 passed by the learned Additional District Judge, are upheld and this revision petition being without merit is hereby dismissed.