1989 PLP 1302 (SCMR)

SHAFIUR RAHMAN; J-‑-The vendees who‑ were defendants in a pre emption suit seek ‑leave to appeal against the judgment of the Lahore High Court, Lahore, dated 25‑1‑1988 whereby following the decision of the Full Bench in, Abdul Ghaffar Khan v. Saghir Ahmed Aslam P L D 1987 Lah. 358, the claim made by the petitioners was rejected and the revision petition dismissed.

2. The pre‑emptors respondents in the appeal arid the plaintiffs in the civil suit claimed to be owners of the Patti from which sale had taken place in favour of the petitioners. The sale yeas sought to be pre‑empted on payment of Rs.33,575 but for the purposes of court‑fee and jurisdiction the suit was valued at Rs.1,

275. The suit was contested and as many as nine issues were framed but it is not necessary to reproduce them all. The suit was held to be ‑time‑barred by two days. It was found to be deficiently stamped for the purposes of court‑fee and no prayer was made at any stage for making up the deficiency. On these findings, the trial Court dismissed the suit on 11th of March, 1982. 3.On appeal the findings were set aside and it was held that the suit was within trine. and on the question of court‑fee' the following order was passed:‑‑ "Resultantly I would set aside the judgment and the decree, dated 11‑3‑1982 and would allow the appeal; although with no order as to costs. I would remand the case to the lower Court, the Presiding Officer of which presently is Mr. Tarid Iftikhar Ahmed, Civil Judge 2nd Class, Chunian, who will proceed to determine the amount payable as court‑fee by plaintiffs, and will, afford them an opportunity to deposit court‑fee stamps of requisite value by a particular date. If they fail to do so, they will‑be non‑suited; otherwise their suit will be decreed, without re opening discussion in respect of any other issue. Parties may be called upon to adduce their evidence with regard to issue No.6‑B, which will be re‑determined. Fate of the suit will depend on this issue alone. Parties shall appear in the Court below for further proceedings on 8‑9‑1986." This judgment of the District Judge is, dated 20‑7‑1986.

4. On remand the Civil Judge by his judgment, dated 29‑1‑1987 held that the value for the purposes of court‑fee was Rs.14,245 and the deficiency was ordered to be made up within fifteen days from the announcement of the judgment. There was an objection taken with regard to the relief to be granted and it was disposed of in the following words by the trial Court:‑‑ "Now I come to the matter relating to petition moved by the defendants under Order 7, Rule 11, C.P.C. The learned counsel has argued that in view of authority P L D 1986 S C of Pakistan (Shariat Appellate Bench) page 360 the plaintiffs have no cause of action for the present suit. He suggested that the suit of the plaintiffs may be dismissed. On the other hand it is contended by the learned counsel for the plaintiffs that the jurisdiction of this Court is limited only to the extent as directed by the learned appellate Court while remanding the suit. He further contended that the previous finding of the trial Court respecting superior right of plaintiffs has been endorsed by the learned appellate Court. He relied on authority P L D 1987 Lah. page 71 and P L D 1986 Lah. page

546. I have seen both these authorities and 1 am of the considered opinion that the matter relating to superior right is lying with the learned appellate Court, if appeal is preferred it would be seen at that stage. With these observations, the application is dismissed."

5. An appeal was taken to the District Judge and the objection left for the appellate Court was decided in the following words:‑‑ "Such findings were not challenged during the hearing of the appeal that was decided by the learned District Judge, Kasur on 20‑7‑1986. It was admitted fact between the parties that the judgment and decree, dated 20‑7‑1986 passed by the learned District Judge, Kasur were not challenged further nor the same were set aside or varied up to this time by any competent Court of law. Learned counsel for the appellants had nothing to say about the findings recorded by the learned Trial Judge under Issue No.6‑B vide the impugned judgment and decree. Such findings contained in the impugned judgment and decree appeared to be in accordance with law and the evidence available on record. The same are upheld." 6 The High Court dismissed the Revision Petition by reference to the decision in Abdul Ghaffar's case.

7. Notices had issued in this petition to the respondents to appear and address the arguments as in view of the decisions given by this Court m Sardar Ali and others v. Muhammad Ali and others (P L D 1988 S C 287) it was likely to be converted into an appeal and disposed of as such.

8. Mr. M.Salim Shahnazi, Advocate, the learned counsel for the respondents Nos.l and 2 has appeared in response to the notice to the respondents and supported the view taken by the District Judge and the High Court on the ground that by the judgment, dated 20th July, 1986, i.e..before the crucial date 31‑7‑1986, the adjudication with regard to the superior right of pre-e mption had taken place and a decree to that effect had been passed and nothing more was to be done except to determine the deficiency in court‑fee and allowing the pre‑emptors to make up the deficiency. As soon as the deficiency was made up, the decree was to follow in terms of the adjudication of the District Judge, dated 20‑7‑1986. On this ground it is contended that the right had come to vest in the pre‑emptors and the decision given in Said Kamal's case (P L D 1986 S C 360) which became operative from 31‑7‑1986 cannot interfere with it. The judgment and decree in favour of the pre‑emptors could be taken to that of the District Judge of 20th July, 1986 and not of the Civil Judge of dated 29th January, 1987.

9. The decision of the High Court on which the impugned judgment of the High Court places reliance has been set aside by this Court in the case of Sardar Ali and others. However, the contention of the learned counsel for the pre -emptors cannot succeed because what the District Judge has done by his judgment, dated 20‑7‑1986 was to have recorded the findings with regard to superior right of pre‑emption of the plaintiffs, and such findings are invariably recorded and either remain intact or get altered in the hierarchy of appeals. The vested rights arise not by the nature of the findings recorded and their fate in the hierarchy but with formal adjudication, which takes place as in the case of a decree passed and capable of being executed and enforced against a particular party. That stage had not certainly been reached because a determination, which related to the controversy had still to take place after 20‑7‑1980 and it took place on 29‑1‑1987 allowing fifteen days time for perfecting or completing the right. In the circumstances, the pre‑emptors cannot claim a right as has been recognized in Sardar All's case on the basis of findings recorded by the District Judge on 20‑7‑1986. As no pre‑emption decree of possession had been passed by 31st of July, 1986 and as the ground taken up by the plaintiffs‑respondents was not available for enforcing the right of pre‑emption after that date, the decree could not be passed in terms in which it was passed.

10. In the circumstances, the petition is converted into an appeal and is allowed, setting aside the judgments of all the three Courts. The result will be that the suit of the plaintiffs‑respondents seeking the possession of the land shall rid dismissed with no order as to costs. A.A/A‑44 7/S Appeal allowed.