1996 PLP 1372 (MLD)

secondly‑‑‑in the co‑sharer, if any, who are agnates in order of succession; thirdly‑‑‑in the persons, not included under firstly and secondly above, in order of succession, who but for such sale, would be on the death of the vendor entitled to inherit the land or property sold: fourthiy‑‑‑in the co‑sharers. If no person have a right of pre‑emption under clauses (a) and (b) exercises it then‑‑‑ firstly‑‑‑in the owners of the mahal wherein such agricultural land or property is situate; secondly‑‑‑in the tenants having the right of occupancy within the property or agricultural land that is being sold. Explanation.‑‑‑In the case of a sale by a female of land or property, to which she has succeeded for her life tenure through her husband, son, brother or father, the word agnates in this section shall mean the agnates of the person to whom she has to succeeded. " "

2. Amendment of section 14 Act II of 1993 (Bikrami).‑‑‑In the Right of Prior Purchase Act, 1993 (Act II of 1993 Bikrami) for section 14 the following shall be substituted, namely:‑‑‑ ' 14.‑‑‑(1) Subject to the provisions of section 13, the Right of Prior Purchase in respect of agricultural land and village immovable property shall vest,‑‑ (a) firstly in Shafi Sharik; (b) secondly in Shafi Khalit; and (c) thirdly in Shafi Explanation.‑ 1. "Shafi Sharik" means 2. "Shafi Khalit" means .. .. .. .. .. 3. "Shafi Jar" means .. .. .. .. (2) Where all the clauses ... ... ... ... ... (3) Where there are more ... ... ... ... ... (4) Where there are more ... ... ... ... (5) A participator in the ... ... ... ... ...

8. The survey of the Full Court judgment in Fazal Dad's case referred to above, ends the controversy involved in pending cases where decree has been passed or not by the trial Court or the persons in whose favour the right already accrued before the amendment was brought into existence, It would be appropriate to reproduce the relevant observation which is in the following words: "‑‑‑The result of the foregoing is that section 14 on which grounds Nos.(i) and (ii) of the plaint (being a 'Yakjadi' and ownership in the village) were based has been repealed but it continues to be operative for pending cases and the suit will be continued and decided in light of the repealed provisions. However, the position about grounds Nos.(iii) and (iv) still remain to be examined. These grounds were based on contiguity, commonness of thoroughfare and water source. These grounds were not recognised by un-amended section 14 and were incorporated by way of substitution on 13th of March, 1993. It means that these rights were not recognised by law when the sale‑deed was executed and the suit was filed. As discussed elsewhere the effect of substitution of section 14 is that the new section shall be deemed to have been legislated on 13th of March, 1993 when the Amendment Act was enacted. Since the law was not in force when the sale‑deed under dispute was executed, the rights granted by the new section cannot be made available to the respondent‑plaintiff. The fact that respondent‑plaintiff had in his plaint included these grounds does not make any difference in legal position."

9. Keeping in view the observation made by the Supreme Court in the above‑referred case, it can safely be resolved that the law holding the field before its amendment remains applicable and the rights of the parties shall be determined accordingly. According to old section 14 of the Right of Prior Purchase Act, the prior right of Mst. Maneeza Bi, plaintiff‑appellant is not disputed, rather it is admitted in the written statement and the learned counsel in the course of arguments, also did not dispute the above relationship of the appellant and a right under that law. Therefore, both the judgments of the District Judge and Sub‑Judge are against the spirit of the Supreme Court's judgment. The point raised by the learned counsel for the respondent with regard to the establishment of a right at 3 stages has been sufficiently met by the Supreme Court in its judgment and the cases referred to by the learned counsel for the respondent have also been discussed. Therefore, the point merits no consideration, as such the appeal of Mst. Maneeza Bi, plaintiff‑appellant is accepted and the orders of District Judge and Sub‑Judge to her extent are set A aside. The suit of Mst. Maneeza Bi, plaintiff‑appellant stands decreed against the defendant‑respondent on payment of Rs.5,00,000, the sale price and other expenses of the sale‑deed as there is no dispute about the cosideration amount. The above amount shall be deposited with the trial Court, if not deposited earlier within 60 days from the date of announcement of this judgment, otherwise the suit shall be deemed to be dismissed. However, the appeal of Muhammad Yusuf fails as the plaintiff‑appellant, according to law applicable to his case, has failed to substantiate his case and rightly conceded so by his counsel, with no order as to costs. A.A./81/AJ&K Order accordingly.