1994 PLP 2374 (MLD)

In this revision petition judgment and decree dated 10-2-1988 passed by the learned Additional District Judge, Gujrat, through which the appeal filed by the petitioner against the judgment and decree dated 21-9-1987 passed by the learned trial Court through which the suit filed by the respondent for possession of land through pre-emption had been decreed, was dismissed, has been called in question.

2. The respondent on 18-3-1977 filed a suit for possession of land through pre-emption on the ground that he being Yak Jaddi and co-sharer in the Khata had superior right of pre-emption. This suit was dismissed by the learned trial Court through judgment dated 5-3-1985 on the ground. of deficiency in the court-fee. The appeal filed by the petitioner against the said judgment was accepted by the learned lower appellate Court through judgment dated 15-12-1985 by which the case was remanded to the learned trial Court for disposal on merits.

3. After the remand the learned trial Court through judgment dated 21-9-1987 decreed the suit after holding that the respondent being Yak Jaddi and co-sharer in the Khata had superior right of pre-emption. The petitioner challenged the said judgment and decree in appeal before the learned lower appellate Court Which has been dismissed through judgment dated 10-2-1988. Both these judgments and decrees have been challenged in this revision petition.????? `

4. Learned counsel for the petitioner argued that neither on 21-9-1987 nor on 10-2-1988 the suit of the respondent could be decreed as the law of pre-emption on the said dates ceased to be operative as per rule laid down in judgment reported as Government of N.-W.F.P. through Secretary v. Malik Said Kama] Shah PLD 1986 SC 360 which was interpreted by the Supreme Court that no suit of pre-emption could be decreed after 31-7-1986. Learned counsel for the petitioner also argued that according to the rule laid down in judgment reported as Sardar Ali and others v. Muhammad Ali and others PLD 1988 Sc 287 the suit could be continued after 31-7-1986 by the respondent if at any stage of the proceedings a decree had been passed in favour of the pre-emptor before 31-7-1986 and since in this case no such decree was ever passed before the said date, therefore, the case was not governed even by the said role.

5. Learned counsel for the respondent frankly conceded that according to the rule laid down in Sardar Ali's case the suit could not be decreed after 31-7-1986, therefore, he would not support the impugned judgments and decrees on that score. He, however, submitted that according to section 34(2) of the Punjab Pre-emption Act IX of 1991, the suit could be decreed after 31-7-1986 cause in the earlier round of litigation his suit was once dismissed through ' judgment dated 5-3-1985, as such, his case was covered by the said provision of he Act. In support of his contention he relied upon judgment reported as Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129. This judgment was delivered on 2-12-1991 by the Supreme Court in which after examining the provisions of section 34(2) of the Punjab Pre-emption Act IX of 1991 it was held that in any suit of pre-emption in which judgment and decree was passed before 31-7-1986, whether decreeing the suit of the pre-emptor or dismissing the same the same would fall within the ambit of the said section because the expression "judgment and decree" used in this provision of law did not mean only a decree in favour of the pre-emptor whereas the judgment dismissing the suit shall also be deemed to be a case in which decree had been passed.

6. The legal effect of the rule laid down in this judgment is that in any suit of pre-emption filed before 31-7-1986 under the Punjab Pre-emption Act, 1913, which was decided before 31-7-1986 either in favour of the pre-emptor or the vendee, further proceedings in such suit could be taken, continued and a decree passed under the Pre-emption Act, 1913, notwithstanding the rule laid down in Malik Said Kamal Shah's case and Sardar Ali's case. Learned counsel for the petitioner, however, cited judgment reported as Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445 which was decided by the Supreme Court on 20-1-1992 i.e. later in time of the previous judgment relied upon by the learned counsel for the respondent. In this case provisions of section 35(2) of N.-W.F.P. Pre-emption Act, 1987, came up for consideration. The said provision is identical to the provisions of section 34(2) of the Punjab Pre-emption Act, so far as the question of interpretation of the expression "judgment and decree" used in them is concerned. It has been held in this judgment that the expression "judgment and decree" would mean a judgment through which the pre-emptor's suit was decreed and it did not include a judgment through which the suit was dismissed to bring the case within the purview of the said provisions of law in order to qualify it to be proceeded further and decided under the Punjab Pre-emption Act, 1913. This judgment apart from being later in time has also been delivered by a larger Bench. In this case the judgments and decrees passed in favour of the pre-emptor which were subject-matter of different appeals on 6-5-1988, 11-2-1987 and 31-7-1986 were set aside and such cases 'were held to have not been saved by the provisions of section 35(2) of the Act, as such, the same were set aside. In the present case also decree in favour of the respondent/pre-emption for the first time was passed on 21-9-1987, therefore, to this case rule laid down in 1992 SCMR 445 is fully attracted.

7. The two Courts below while passing the impugned judgments and decrees exercised jurisdiction not vested in them under the law. This revision petition is accepted. The judgments and decrees dated 21-94987 and 10-2-198 passed by the two Courts below respectively are hereby set aside and the suit filed by the respondent is dismissed. There will be no order as to costs. A.A./F-160/L?????????????????????????????????????????????????????????????????????????????????????? Revision accepted