2002 PLP 967 (CLC)

Syed Fayyaz Ahmed Sherazi for Respondent. Date of hearing: 4th October, 2001. This civil revision is directed against the judgment and decree, fated 5-10-1994 passed by the Additional District Judge, Gujrat whereby judgment and decree dated 29-7-1990 passed by the trial Court dismissing the suit for pre-emption of the petitioner was upheld.

2. Brief facts of the case are that the petitioner filed a suit for possession through pre-emption on the ground of ownership in the estate and kinship. The suit filed by the petitioner was decreed on 19-1-1978. The decree was passed in favour of the petitioner by applying the provision of Order 8, rule 10, C.P.C.

3. The respondent made an application for, setting aside the decree to the trial Court but the same was dismissed vide its order, dated 1-7-1979. The respondent preferred an appeal against the said order which was accepted by the Additional District Judge, Gujrat vide his order, dated 1-12-1984 and the suit was remanded to the trial Court for decision in accordance with law. The trial Court after framing issues and recording evidence dismissed the suit of the petitioner on 1-12-1987. The pre-emptor/petitioner filed an appeal which was allowed by the Additional District Judge vide his judgment and decree, dated 5-7-1987. Again the case was remanded to the trial Court for decision afresh. The trial Court relying on a judgment reported in PLD 1990 SC 865 dismissed the suit of the petitioner. The appeal was preferred against that judgment and decree which was also dismissed by the Appellate Court.

4. Being aggrieved from the judgment of two Courts below the present revision petition is preferred by the petitioner assailing the judgment of two Courts below.

5. Learned counsel for the petitioner argued that as decree, dated 19-1-1978 was passed before 31-7-1986, therefore, the suit of the petitioner could not be dismissed and the principle laid down by the, Supreme Court in Sardar Ali's case was fully applicable in the case of the 'petitioner.

6. After hearing the parties and examining the record I agree with the plea raised by the petitioner that the rule laid down in Sardar Ali's case PLD 1988 SC 287 was applicable in the case of the petitioner. A decree was awarded in favour of the petitioner on 19-1-1978 before 31-7-1987. The petitioner was entitled to seek the restoration of the decree in his favour on the basis of pre-existing law. The decree passed in favour of the petitioner before 1-8-1986 was protected from the judgment of Said Kamal Shah's case. All further proceedings in connection therewith were to be governed and decided under the provision of Punjab Pre-emption Act, 1913, where decree in favour of pre-emptor though ex parte was passed before 31-7-1986. Reference is made to the case of Bahadur Khan v. Muhammad Yousaf and others 1992 SCMR 2117, Ghulam Rasool and others v. Faiz Rakhsh 1992 SCMR 1328 and Muhammad Salam and others v. Wali Muhammad and others 1997 SCMR

108. In view of my finding hereinbefore I set aside the judgment and decree of the Additional District Judge, Gujrat, dated 5-10-1994 and judgment and decree, dated 29-7-1990 passed by the trial Court and remand the case to the trial Court for decision afresh on merits according to law. S.A.K./N-134/L Case remanded.