2009 PLP 695 (YLR)

MAULVI ANWAR UL HAQ, J.--Vide registered sale-deed dated 14-11-1982 the respondent No.1 purchased the suit-land. On 18-11-1983 the petitioner filed a suit for possession of the suit-land by pre-emption. He claimed to be a collateral of the vendor and co-sharer. He prayed that a decree be passed on payment of Rs.3,000 which amount according to him was actually paid. The respondent No.1 filed a written statement. He asserted that he had paid Rs.8,000 for the land and spent Rs.10,000 on improvements. He denied the superior right of pre-emption and claimed superior right of pre-emption on the ground that he was a tenant in the suit-land. Issues were framed. Evidence of the parties was recorded. The judgment and decree dated 1-11-1987 the learned Trial Court decreed the suit subject to deposit of Rs.8,000.

2. On 13-3-1996 the respondent filed an application under section 12(2), C.P.C. stating that in the light of the decision of the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan in the case of Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), the decree could not have been passed and is liable to the set aside. The petitioner resisted the application by urging that it is hopelessly barred by time. He claimed that he was also a co-sharer in the suit-land as such the decree is valid. The learned Trial Court framed issues and evidence was recorded. It came out during the course of evidence that the pre-emption amount was deposited by the petitioner. It was withdrawn by the respondent. The decree was put into execution and possession was obtained. The learned Trial Court allowed the application vide order dated 31-3-2001 relying upon a judgment of this Court in the case of Aurangzeb v. Massan and 13 others (1993 CLC 1020). A learned A.D.J., Kot Addu, dismissed the revision petition of the petitioner on 7-4-2005.

3. Learned counsel for the petitioner argues that the judgment relied upon by both the learned Court below i.e. 1993 CLC 1020 was set aside in appeal by the Honourable Supreme Court of Pakistan in the case of Muhammad Khan v. Massan and 13 others (1999 SCMR 2464). Learned counsel for the respondent has not much to say in support of the impugned orders.

4. I have examined the available records. I do find that the judgment passed by this Court in Writ Petition No.1566/1993 was set aside by the Honourable Supreme Court in appeal. I find that their Lordships have been pleased to observe that where the decrees and acquiescence in a decree passed after 31-7-1986 it cannot be struck down. It was observed that the act of withdrawing the sale price and delivery of possession of the decree-holders in execution are acts of acquiescence. Similar is case here. In any case, the learned Courts below acted without lawful authority in passing the impugned orders on an application filed after nine years of the inter partes decree and beyond the period of time prescribed by law. The writ petition accordingly is allowed. Both the impugned orders passed by the learned respondents Nos. 2 and 3 are set aside being without lawful authority and as such void and the application filed by the respondent No.1 under section 12(2), C.P.C. is dismissed. However, the parties are left to bear their own costs. H.B.T./M-351/L Petition allowed.