Jawhar Rehman vs Aminullah

2012 Y L R 2225

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

JAWHAR REHMAN---Petitioner

Versus

AMINULLAH and others---Respondents

Civil Revision No.341 of 2011, decided on 2nd April, 2012.

(a)Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.31---Suit for pre-emption---Defendant/vendee, claimed that sale in his favour was effected in the year 1998, when he made payment of earnest money; and then sale consideration was completed through instalments in the year 2005; whereafter sale-deed was executed in his favour in 2005---Vendee had further contended that as possession of the suit property had been delivered to him in 2002, suit filed by the plaintiff/pre-emptor in the year 2006 was barred by limitation and was liable to be dismissed on that ground---Validity---Entire evidence of the defendant was silent with regard to actual date and manner of delivery of physical possession of suit property at the spot---Defendant was bound to prove with cogent evidence the actual date of delivery of possession of suit property to him, but such evidence in that regard was deficient--- No specific date and mode having been brought on the record regarding delivery of physical possession of suit property to the vendee, mere assertion in the dead or pleadings, would not be sufficient---Under provisions of S.31 the time would start running after the date of registration of the sale-deed; attestation of mutation; delivery of physical possession of suit property; and in the absence of all such three modes, then time would start running from the date of knowledge by

the pre-emptor under S.31(d) of Khyber Pakhtunkhwa Pre-emption Act, 1987--- Petitioner/vendee having failed to prove the actual day of physical possession of property, suit filed by the plaintiff within prescribed period of limitation from his knowledge, was within time and was not barred by time---Same was rightly decreed concurrently by the Trial Court and Appellate Court below.

Muhammad Shabhan and others v. Mir Qadam Khan and others 2001 MLD 1716 distinguished.

(b)Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of High Court---Scope---Factual controversy could not be attended to by the High Court in exercise of its revisional jurisdiction, unless the findings of the two courts below, were the result of jurisdictional defect/error or any other legal infirmity.

Muhammad Hanif Khan for Petitioner.

Farman Ali for Respondent.

Date of hearing: 2nd April, 2012.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The present petitioner, being defendant of a suit for pre-emption, through instant revision petition, has questioned concurrent findings of the two Courts below whereby suit of the plaintiff/ respondent was decreed in his favour by the Civil Judge/Illaqa Qazi, Malakand at Dargai vide his judgment and decree dated 17-5-2010, and appeal thereagainst of the present petitioner was dismissed by the Additional District Judge/Izafi Zilla Qazi, Malakand at Dargai, vide his judgment and decree dated 15-7-2011.

2.Learned counsel for parties were heard and record of the case was perused.

The only question urged before this Court was with regard to limitation of the preemption suit filed by the plaintiff/respondent. The learned counsel for petitioner also placed reliance on the case of Muhammad Subhan and others v. Mir Qadam Khan and others reported, in (2001 MLD

3.The perusal of the record would reveal that a sale on the basis of an unregistered sale- deed dated 25-7-2005, copy of which Exh.DW-2/1, was pre-empted by Aminullah respondent No.1, who is the brother of vendor of the present petitioner, namely Habibullah. The suit of the pre-emptor was initially decreed in his favour and appeal of the present petitioner was dismissed by the Additional District Judge vide his judgment and decree dated 4-11-2010. These findings of the two Courts below were impugned through C.R. No.1974 of 2010 before this Court and this Court partially accepted the revision petition by maintaining the judgment and decree of the trial Court and set aside the findings of the appellate Court on issue No.3 with regard to limitation, as the petitioner had alleged that sale in his favour took place much before the date of sale deed i.e. 25-7-2005 and suit by the pre-emptor was filed beyond the prescribed period of limitation of 120 days. The case was then sent back to the appellate Court to decide the question of limitation in view of the observation made by this Court. The appellate Court after remand, once again dismissed the appeal of petitioner by3 holding that the suit of the plaintiff/ petitioner was within the prescribed period of limitation.

4.The perusal of evidence on the record would reveal that the petitioner has alleged that sale in his favour was effected in the year 1998 when he made payment of some earnest money and then sale consideration was completed through installments in the year 2005, where after the sale deed dated 25-7-2005 was executed in his favour. But has further alleged that the possession of the property was delivered to him in the year 2002, so, the suit of plaintiff which was filed on 24-3-2006, was barred by the limitation. But the entire evidence of petitioner is silent with regard to actual date and manner of delivery of physical possession at the spot. The petitioner was bound to prove with cogent evidence the actual date of delivery of possession. But his evidence in this regard is deficient. Apparently, it appears that the suit of the pre-emptor was filed beyond prescribed period of limitation of 120 days, but in fact it is not so because the vendee/petitioner failed to prove the actual date of delivery of physical possession of the suit property to him which he has alleged in the year 2002. If there is evidence of specific date of delivery of possession, then in that situation, the period of limitation of 120 days would start running from the date of possession as delivery of possession at the spot is equally termed as notice to public-at-large as in the case of registered sale deed or mutation and when there is no physical possession of the property under sale or registered sale deed or mutation, then in that case, the period of limitation would start running from the date of knowledge of the pre-emptor, as provided in section 31(d) of the N.W.F.P. Pre-emption Act, 1987.

The period of limitation provided in the Act ibid is governed by Section 31 which reads as under:--

31.Limitation.---the period of limitation for a suit to. enforce a right of pre-emption under this Act shall be one year 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 is not covered under paragraph (a) or paragraph (b) or paragraph (c).

A look at the above provision of law would reveal that the time starts running after the date of registration of the sale deed, attestation of mutation, delivery of physical, possession of the property and in absence of all the above, then it starts running from date of knowledge.

5.Now reverting back to the facts and circumstances of the case in hand, the case of the petitioner is covered under clause (d) of the above provision of law, as the vendee failed to prove the actual day of physical possession of the property. To cover his case under clause (c) of the above-quoted provision of law, he was bound to prove the actual date of delivery of physical possession and he failed to discharge the said burden. No specific date and mode was brought on the record regarding delivery of physical possession of the suit property. When so, mere assertion in the deed or pleadings would not be sufficient. The reliance placed on the case of Muhammad Subhan and others (Supra) would not be help to the petitioner as the question discussed therein was with regard to the completion of sale and question of limitation as herein

was not even discussed. Besides above all, factual controversy could not be attended by High Court in exercise of revisional jurisdiction unless the findings of the two Courts below are the result of jurisdictional defect/error or any other legal infirmity.

So, in this view of the matter, petitioner failed to prove his case, hence this revision petition, being meritless, is dismissed as such.

H.B.T./193/P Petition dismissed.