P L D 1994 Supreme Court 870 (PLP)

SAJJAD ALI SHAH, J.‑‑‑Muhammad Ali son of Miran Bux sold 6 Kanals and 18 Marlas of land in District Sialkot to Mushtaq Ahmad and Muhammad Razzak vide Sale Deed registered on 4‑1‑1974. Muhammad Shari (predecessor‑in‑interest of the petitioners) filed suit on 8‑7‑1974 for possession through pre‑emption on the basis of being Shareek‑e‑Khata and being brother of Muhammad Ali. The suit was dismissed on 15‑3‑1987. The appeal before the District Judge was dismissed in view of the judgment in the case of Said Kamal Shah PLD 1986 SC 360.

2. Against the decision of the District Judge, Revision No.1550/89 was filed in the High Court and during the pendency of that revision, petitioners filed an application under section 36(1) of the Punjab Pre‑emption Act, 1990 before Civil Judge praying that the judgment and decree dated 15‑3‑1987 be treated as cancelled and the suit be restored and decreed on the merits. The application was contested and dismissed on 24‑4‑1991 in view of the judgment in the case of Muhammad Ismail v. Sakina Bibi PLD 1991 Lahore

60. Against dismissal of application, revision was filed before Additional District Judge which was dismissed on 24‑5‑1991 and the same was challenged in the High Court in the Writ Petition No.8805/91. The Lahore High Court heard together Civil Revision No.1550/89 and Writ Petition No.8805/91 and dismissed both for the reasons stated hereunder:- "It is common ground that no decree in the pre‑emption suit was ever passed on or before 31‑7‑1986, the target date set in the case of Malik Said Kamal Shah reported as PLD 1986 Supreme Court

360. Therefore, as held by the Supreme Court in number of its subsequent pronouncements, no fresh decree on the enumerated preferences could be made. Performance of Talb‑i‑Ishhad and the statement about `Zaroorat' or avoidance of `Zarar' were conspicuously absent in the pleadings and also the proof given at the trial of the pre‑emption suit could not be revived for a trial afresh under the new law. The result is that both the civil revision and the writ petition directed towards the same end are bound to fail for want of any merit in them. They are dismissed accordingly with no order as to costs in this Court."

3. We have heard at length learned counsel for the petitioners but are not able to find any flaw or legal infirmity in the judgment passed by the High Court. The correct legal position, which has emerged after judgment in Said Kamal Shah's case PLD 1986 SC 360, is that in any suits for pre‑emption in which decrees were passed in original, appellate revisional forums before 31‑7‑1986, such proceedings are to be regulated according to pre‑emption law A then in force but in suit in which decree has not been granted in favour of pre emptor before the target date, the same cannot be decreed thereafter. In the instant case the suit was dismissed on 15‑3‑1987, which was after the target custom of pre‑emption was not proved, otherwise issue of Shank‑e‑Khata was decided in favour of the petitioners. This will not make such difference for the reason that the legal. position is well settled by the case‑law. Dismissal of suit is not a decree in favour of the plaintiff. It was held in the case of Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 by two learned Judges of this Court that words "judgments and decrees" as used in section 34(2) of the Punjab Pre‑emption Act IX of 1991 covered both cases .v. those passed for or against the plaintiffs pre‑emptors. This case is distinguishable for the reason that it was so said as in that case plaint was rejected under Order 7, Rule 11, C.P.C end, therefore, such rejection of plaint was considered to be at par with a decree. Secondly, plea of being a co‑sharer in Khata was yet to be determined as neither the Appellate Court nor the High Court had decided the same. In such circumstances the case was remanded. This judgment in thereported case mentioned above is dated 2‑12‑1991 and is reported in 1992 "' SCMR 1129 and was not noticed in the case of Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445 in which judgment is rendered by five learned Judges of this Court and after consideration of case‑law on the subject it has been held that the words "judgments and decrees passed by the Court. have become final" in subsection (2) of section 35 of N: W.F.P. Pre‑emption Act (X of 1987) mean those judgments and decrees wherein the suit of pre emptor has been decreed by the Courts rendering it. Word "final" is further defined as determining rights of the parties concluding controversy so far a; particular authority or forum is concerned notwithstanding the fact that order may be open to challenge in appeal.

4. Another important point decided in the case of Rozi Khan supra it that requirement to Talab being a sine qua non for the enforcement of the right of pre‑emption recognised by the Muslim Law, its non‑eompliance. has the effect of extinguishing the pre‑emptive right of all such pre‑emptors.

5. Facts in the case of Ghulam Hamdani v. Muhammad Iqbal and S others, reported in 1993 SCMR 1083 are different and distinguishable for the reason firstly that in that case suit to enforce right of pre‑emption was filet after 31‑7‑1986, which was after the date on which decision was given by the Supreme Court in the case of Said Kamal Shah. Secondly that suit was file within one year according to the provisions of subsection (2) of section 35 any order of rejection of plaint was passed before 28‑3‑1990, hence plaintiff could apply for revival of the suit within sixty days but could not do so as the matte was sub judice in the Supreme Court. Thirdly, in the suit right of pre‑emptioi was claimed on the basis of contiguity and participation in immunities and appendages and Talb‑i‑Ishhad was made in presence of witnesses as was mentioned in paragraph four of theylaint. In such circumstances the case was remanded to the trial Court for decision on merits and according to the new law of pre‑emption. 15‑3‑1987, hence no decree was passed in favour of pre‑emptor on or before i 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 conspicuously 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.

7. For the facts and reasons stated above we are of the view that no interference is warranted and resultantly leave is refused and these petitions are dismissed as being without merits. M.BA./G‑476/S Petition dismissed,