2000 PLP 1631 (SCMR)

CH. MUAHMMAD ARIF, J.

On 9-1-1975, a parcel of land measuring 710 Kanals, 3 Marlas situate in Mauza Klair, Tehsil W azirabad, District Gujranwala was sold for a consideration of Rs.5,20,000 by Manzoor-ul-Haq and three others in favour of Allah Rakha and others. Bootey Khan and 12 others, the petitioners herein filed a suit for possession through pre-emption on 9-1-1976 on the ground that they had a right as owner in the estate to pre-empt the aforesaid sale. This stance of the petitioners/plaintiffs was controverted by the respondents/defendants on the plea that they were the tenants over the disputed land and as such had a better claim to purchase the land. An objection was also taken respecting the affixation of court-fee. However, the plaint was rejected under Order VII, Rule 11, C.P.C. on 29-6-1978 on the ground that proper court-fee was not paid. The plaintiff's R.F.A. No.209 of 1978 was accepted on 5-11-1980 and the matter was remanded to the learned trial Judge. This order was challenged before this Court through C.A. 80 of 981, which was dismissed on 4-11-1985.

2. It was after the remand of the case that the petitioners made an application under Rule 17, Order VI, C.P.C. with a view to affecting amendments in their pleadings to the effect that they also possessed the qualifications of contiguity and co-sharership m the ampnittes i.e Shafi Khalit. The learned trial Judge, Wazirabad dismissed the suit vide judgment and decree dated 2-I0-1986 placing reliance upon this Court's Judgment in Said Kamal's case (PLD 1986 SC 360) holding that no decree had been passed in the matter before the target date i.e. 31-7-1986. The judgment and decree of the trial Court was upheld by an Additional District Judge, Gujranwaia vide judgment dated 13-6-1988. Thereafter, the petitioners filed R.S.A. No.260 of 1988 which was disposed of by the High Court on 20- 1-1991 being infructuous.

3. The matter did not end here, The petitioners filed an application under section 36 of the Punjab Pre-emption Act (IX of 1991) seeking restoration of the suit and another application under section 34(2) of the said Act seeking permission to take additional grounds of being Shafi Khalil and contiguity. Even these applications were dismissed by the learned Civil Judge on 27-2-1992. The petitioners' appeal was also dismissed by the learned Additional District Judge, Gujranwala on 18-10-1992 and the same treatment having been meted out to the petitioner's Writ Petition No. 1919 of 1992, they have made the instant petition under Article 185(3) of the Constitution with the following prayer:

"It is, therefore, respectfully prayed that leave , to appeal may graciously be granted to the petitioner(s) against the order dated 13-2-1998 passed in Writ Petition No. 1919 of 1995."

4. Mr. S.M. Tayyab, learned Senior Advocate Supreme Court appearing in support of this petition, has vehemently contended that the petitioners could take up the stand regarding their being Shaft Khalit and also possessing the qualification of having their property situated in contiguity with the property in suit. He has relied upon Ahmed v. Abdul Aliz (PLD 1989 SC 771) in support of his contention. He has referred to the following excerpts from the aforesaid precedent:-- "The effect of the decisions was that as from 1-8-1986 the tenant, the occupancy tenant, the inferior proprietor in that capacity alone - could not enforce any right of pre-emption as they were left with none, the provisions recognizing their right ceasing to have effect. Similarly the prospective heirs of the vendors. The superiority of the claim of co-sharer stood enhanced by deletion of other priority categories and by deletion of expression fourthly. As regards the claim based on the ownership of land in the estate or Patti, this was a very wide category and the judgment in Said Kamal's case had not the effect of effacing it in its entirety or of directing total deletion of this category. The portion underlined in the judgment of Mr. Justice Maulana Muhammad Taqi Usmani and incorporaed as Order of the Court clearly shows that only that part of it was declared to be repugnant to the Injunctions of Islam where ownerhip in the estate or Patti was not coupled with contiguity or co-sharership, a very restricted and a smaller category included within the larger

a part of the whole. The whole having not been struck down, the part remains preserved. The result was that where it was contended or it could be contended that ownership in the Patti or the estate was coupled with contiguity, then such ownership in the estate or Patti continued to be a valid and available ground for pre-empting the sale. For adjudicating this question of fact, opportunity shall be allowed to parties to amend their pleadings, where necessary or required. " A perusal of Ghulam Hussain v. Mushtaq Ahmad (PLD 1994 SC 771), however, shows that this Court finally resolved the question with regard to non-availability of the pleas of similar nature as taken up by the petitioners herein with the following observations:

"In the instant case the suit was filed on 8-7-1974 and was dismissed on 15-3-1987, hence no decree was passed in favour of pre-emptor on or before 31-7-1986, which is target date set in the case of Said Kamal Shah PLD 1986 SC

360. Talb-i-Ishhad and statement about 'Zaroorat' or avoidance of 'Zarar; were conspicuosuly absent in the pleadings. Such suit could not be revived under the new law. Mere demand in the plaint to accept superior right of pre-emption is not sufficient compliance for restoration as contemplated under section 36 of Ordinance XVIII of 1990." To the same effect are the observations made by this Court in Muhammad Anwar v. Hafiz Muhammad Akbar Chughtai (1996 SCMR 749).

5. Moreover, it is not denied that the petitioners woke up from their slumber after more than two decades i.e. 22 years, 10 months and 15 days, when they requested for amendment/s to their pleadings for the first time. The learned trial Judge and the appellate forum have not been shown to be in error in resolving the above controversy against the petitioner. It is not the ,q case of the petitioners that both the trial Court and the appellate forum were not possessed of the jurisdiction to decide the applications of the petitioners at their respective levels. In this view of the matter, the High Court was not wrong in declining to interfere with the judgments/orders passed by the Courts below.

6. No other point was urged.

7. The instant petition is sans merit and is liable to be dismissed. Order accordingly. Leave is refused. Q.M.H./M.A.K./B-15/S Petition dismissed.