1990 PLP 265 (CLC)

5. The learned counsel for the petitioners assailed the impugned decisions on the ground that the rule laid down in Sher Muhammad and another v. Allah Dittah and 2 others (P L D 1988 S.C. 412) and Ghulam Oadir v. Nawab Din (P L D 1988 S.C. 701) is no longer a law in view of the rule laid down in Ahmad and others v. Abdul Aziz and others (P L D 1989 SC 771). On the strength of this argument it has been contended that the judgments and decrees passed by the Courts below cannot be sustained.

6. I am afraid, I do not subscribe to the argument put forth by the learned counsel for the petitioners. The rule enunciated in Ahmad and others v. Abdul Aziz and others P L D 1989 SC 771 is not applicable to the facts of the case. In this case a number of petitions came up for consideration to determine the effect and scope of judgment in Government of N.W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 interpreted subsequently in Sardar Ali and others v. Muhammad Ali and others P L D 1988 SC 287; Muhammad Shojb and others v. Member (Revenue) and others P L D 1988 SC 355; Sher Muhammad and others v. Allah Dittah and others P L D 1988 SC 412 and Ghulam Oadir v. Nawab Din PLD 1988 SC 701.

7. While examining the scope of the aforesaid judgments his Lordship Mr. Justice Shafiur Rahman summarized, the following provisions of laws enforcible in Punjab were held to be repugnant to Injunctions of Islam. (i)???????? The whole of clause 3 (d) of para. 25 of Land Reforms Regulation 1972 conferring on the tenant of the land the first right of pre‑emption; (ii)??????? Section 15, clauses (a) and (b) with all the first three preferences, of the Punjab Pre‑emption Act, conferring on the persons in order of succession, who but for such sale would be entitled on the death of the vendor to inherit the land or property sold, the right to pre‑emption; (iii)?????? Section 15 clauses (a) and (b) preference expression "fourthly" because a co‑sharer cannot be made to rank fourth in the matter of preference or priority; (iv)?????? The whole of clause (c) of Section 15 of Punjab Pre‑emption Act in so far as it allows, irrespective of contiguity and co‑sharership ownership in the Patti, estate and to a tenant or to an inferior proprietor a residual right of pre‑emption; and (v)??????? Section 30 of the Limitation Act in so far as it allows a period of one year for filing of pre‑emption suit:'

8. While interpreting its effect in the context of doctrine of Talab, it was held as follows:‑‑ "One thing that stands out in the scheme of chapter 3‑A of Part VII of the Constitution is that the Court has been given the power of applying the test of repugnancy, of giving a prospective declaration of repugnancy and of striking down prospectively a provision of the law under challenge or under examination. The Court has not been given any power whatsoever to legislate, to engraft its observations, findings, or declarations on the law not held to be repugnant, and otherwise allowed to hold the field. The Talabs, even if sine qua non for advancing successfully every claim based on Islamic Law of Pre‑emption, cannot be imported or engrafted into the left over statutory provisions of Pre?emption Law not challenged, not examined and allowed for the time being to remain intact." 9.???????? In the background of aforesaid enunciations of law it is clear that the judgment of the Supreme Court has laid down that the doctrine of Talab by the principles of Islam is not be to read into the remaining provisions of the Punjab A Pre‑emption Act. As far as the right arising from being a legal heir or being a tenant or being co‑owner in the estate is concerned, the relevant provision of Section 15‑C of the Punjab Pre‑emption Act stands declared repugnant to Islam 1 and is not enforcible.

10. Applying the aforesaid principle to this case it is quite clear that the petitioners in all the suits for pre‑emption mentioned above claimed their superior right of pre‑emption on the ground of being legal heirs, co‑owners in the estate‑‑the right which is no longer available in view of the rule laid down in I Government of N: W.F.P. v. Malik Said Kamal Shah P L D 1986 SC 360.

11. Learned counsel for the petitioners frankly conceded that the claim of the petitioners is based upon the ground of legal heirs and co‑owners in the estate; that they are not claiming their right on the basis of being co‑sharers.

12. In result I find no merit in these petitions. The judgment and decree of the first Appellate Court as well as of the trial Court are not open to any exception warranting the exercise of revisional jurisdiction. Accordingly these revision petitions are dismissed in limine. M.BA./A‑837/1,????????????????????????????????????????????????????????????????????? ??????????? Petitions dismissed.