1989 PLP 2395 (CLC)

This civil revision has arisen out of a suit brought by one Jan Muhammad against the peitioners, Kamla and another, for possession of certain land, through pre‑emption. The land was sold by respondent No.4, Rohila, in favour of the petitioners. It was alleged by the plaintiff that he was real brother of the vendor and also a co‑sharer of the land in dispute. The suit was dismissed by a Civil Judge on 24th September, 1983. On this, Jan Muhammad (plaintiff) went in appeal before an Additional District Judge but died during pendency of the appeal whereupon respondents Nos.l to 3, Faqir Muhammad and others, were brought on the record as his legal representatives. Learned Additional District Judge accepted the first appeal and decreed the suit on 23rd December, 1986. Hence this revision by the petitioners.

2. When I took up the civil revision for hearing, a preliminary objection was raised by the learned counsel for the petitioners that in view of law laid down in Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 (Shariat Appellate Bench), Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287, Sher Muhammad and another v. Allah Ditta and 2 others PLD 1988 SC 412, Ghulam Qadir v. Nawab Din PLD 1988 SC 701 and Mst. Safia Begum v. Ibrahim and 4 others PLD 1989 SC 314, the respondents could not succeed even if their predecessor‑in‑interest, Jan Muhammad (plaintiff) was a collateral of the vendor or a co‑sharer of the disputed land. Argument proceeds that qualification of being a collateral was not recognised by Muslim law of pre‑emption as spelt out in the case of Government of N.‑W.F.P. through Secretary, Law Department and that since he did not make requisite Talabs (demands) under that law he could not win even as a co‑sharer because no decree was passed in his favour before 31st July, 1986.

3. In reply, it was submitted by learned counsel for respondents Nos.l to 3, hereinafter referred to as the respondents, that for the purpose of dictum in the case of Sardar Ali and others, a decree by which a plaintiff is non‑suited is as good as a decree by which the relief claimed by him is granted. His argument was that since in the case in hand decree dismissing the suit was passed by the learned trial Court before 31st July, 1986, this case would be governed by law as prevailing before the pronouncement made in the case of Government of N.‑W.F.P. through Secretary, Law Department and as such the suit could be decreed on the basis of qualifications claimed by the predecessor‑in‑interest of the respondents without bothering about the requirement of Talabs. In other words, according to him, this case deserved to be decided according to the provisions of the Punjab Pre‑emption Act, 1913, as existing before decision of the case of Government of N: W.F.P. through Secretary, Law Department.

4. In the case of Government of N.‑W.F.P. through Secretary, Law Department, certain provisions of the Punjab Pre‑emption Act were struck down by Shariat Appellate Bench of the Supreme Court for being repugnant to the injunctions of Islam. It was also directed by the learned Shariat Bench that its decision in that case would take effect on 31st July, 1986. In the case of Sardar Ali and others it was held that dictum in the case of Government of N.‑W.F.P. through Secretary, Law Department will not apply to pre‑emption cases in which decrees were passed before 31st July, 1986. This view was expressed by the Supreme Court in the context of the plea that in order to make a successful claim of right of pre‑emption, the pre‑emptor should establish that he had such a right not only at the time of the sale of land pre‑empted by him but also at the time of filing the suit for pre‑emption as well as at the time of disposal of the suit. While dealing with this plea, it was held by the Supreme Court that if "a pre‑emption decree has been passed in his favour before the 31st July, 1986 the law as in force before the decision of the case of Government of N.‑W.F.P. through Secretary, Law Department would apply to his matter but if the position is otherwise, the matter would be governed by the law laid down in the case of Government of N: W.F.P. through Secretary, Law Department and thereafter. In this view of the matter, decree envisaged in the case of Sarder Ali and others is a decree in favour of the petitioner and not a decree against him. I am, therefore, unable to accept i the contention of learned counsel for the petitioners that the decree of the learned trial Court by which the pre‑emption suit of the petitioners was dismissed by the trial Court is a decree within the meaning of pronouncement made in the case of Sardar Ali and others. To hold otherwise, would make the requirement of decree of no consequence.

5. Since no decree was passed in favour of the respondents or their predecessor‑in‑interest before 31st July, 1986, they cannot succeed on the basis of relationship with the vendor even if it was there, because that qualification is not recognised by Muslim law of pre‑emption as spelt out in the case of Government of N.W.F.P. through Secretary, Law Department. Qualification of being a co sharer is so recognised but it cannot be made use of without making necessary Talabs. This is what has been held by the Supreme Court in the aforementioned cases of Sher Muhammad and another, Ghulam Oadir and Mst. Safia Begum. It is not the case of the respondents that these Talabs were actually made nor there is any evidence in this regard. Qualification of being a co‑sharer is also, therefore, of no avail to them.

6. In view of what has gone above, it is hardly necessary to look into the correctness of the findings recorded by the learned appellate Court on question of fact touching the right of pre‑emption. They are, accordingly, not examined.

7. In result, I hold that the suit giving rise to this revision cannot succeed even if the plaintiff (pre‑emptor) who was predecessor‑in‑interest of the respondents, possessed the qualifications claimed by him. Judgment and decree passed in favour of the respondents (successors‑in‑interest of the plaintiff) by the learned Additional District Judge, are, therefore, not sustainable. This civil revision is, accordingly accepted, judgment and decree passed by the learned appellate Court are set aside and those passed by the learned trial Court restored. Parties are, however, left to bear their own costs. AA./K‑204/L Revision accepted.