1990 PLP 1194 (MLD)

Regular Second Appeal No. 57 BWP and Civil Miscellaneous Application No. 1 and 2 of 1989 decided on 4th November, 1989. ‑‑‑‑Ss. 4, 15 & 21‑‑‑Right of pre‑emption‑‑‑Plaintiff/pre‑emptor in order to succeed, must possess preference on date of sale, at time of filing of pre‑emption suit and finally at date of decision by Trial Court‑‑‑Preference on stated qualification of ownership of estate, on said dates is essence of pre‑emption‑‑ Contiguity was not enumerated as statutory qualification for pre‑empting sale of agricultural land prior to crucial date 31‑1‑1986 but from that date qualification was accepted as statutory one ‑‑‑Plaintiff/pre‑emptor had not claimed preferential right of pre‑emptions on that ground, but his superiority was based on sole ground of his being owner in that estate which had failed to assist him on account of supervening judicial pronouncements, on 31‑7‑1986‑‑ Contiguity although had been accepted as ground of preferential right of pre -emption from 31‑7‑1986, but such acceptance did not apply retrospectively to create a statutory qualification for pre‑emption ‑‑‑Ground of contiguity which was neither claimed earlier nor it existed for superior right of pre‑emption at time of sale and thus could not be of any avail to pre‑emptor in altered circumstances. Ahmad and others v. Abdul Aziz and others PLD 1989 SC 771 and Malik Said Kamal Shah's case PLD 1986 SC 360 rel. Sh. Inayat Ali for Appellant. By sale mutation 282 sanctioned on 17‑12‑1964, Mst. Rabia and others sold 51 kanals of land to Mohammad Bakhsh and Abdul Ghani at the sale price of Rs. 6,

675. Ahmad Din as owner of the estate claimed pre‑emption in respect of the above sale and on 3‑9‑1965 sued to recover possession of the land in dispute. On 15‑12‑1986, application for permission to amend the plaint to add ground of contiguity was dismissed and the plaint in the pre‑emption suit was rejected by the trial Court. Appeal filed from the decision also failed on 10‑9‑1988. It is contended that the trial Court was erroneous to decline the proposed amendment and acted wrongly in rejecting the plaint under Order VII, Rule 11, C.P.C. In support, case of Ahmad and others v. Abdul Aziz and others PLD 1989 SC 771 was relied upon. Appeal has no merits. Pre‑emption was claimed on the sole ground of ownership of the estate. It is common ground that no decree was passed in the pre‑emption suit before 31‑7‑1986 when the judgment in case of Malik Said Kamal Shah P L D 1986 S C 360 came in force. Therefore, plaintiff could claim no preference on the above qualification after the target date i.e. 31‑7‑1986 when it was held repugnant to Islamic injunctions. It is asserted that plaintiff enjoyed preference on the ground of contiguity also which coupled with qualification of ownership of the estate was recognized as a valid qualification for claiming pre -emption in Islam. This is what has been held by the Supreme Court in its recent pronouncement and is binding on all Courts in Pakistan but it does not assist the appellant. It is well‑settled that in order to succeed, plaintiff must possess preference on the date of sale, at the time of filing of the pre‑emption suit and finally, at the date of decision by the trial Court. Preference on the stated qualification on the above dates is essence of pre‑emption. Admittedly, prior to 31‑7‑1986 when the pronouncement in case of Malik Said Kamal Shah took effect, contiguity was not an enumerated statutory qualification for pre‑empting sale of agricultural land. Judgment of the Supreme Court in case of Malik Said Kamal Shah does not apply retrospectively to create a statutory qualification for pre‑emption. Obviously, it operated prospectively. On the date of sale, plaintiff' could not claim superiority on the ground of contiguity coupled with ownership of the estate in respect of sale of agricultural land or village immovable property. His superiority was based on the sole ground of being an owner of the estate. That having failed to assist him on account of supervening judicial pronouncements, the ground which did not exist for pre‑emption at the time of sale cannot avail him in the altered circumstances. In this view, amendment to the plaint even if allowed could be of no material benefit to him. In paragraph 21 of the majority judgment in case of Ahmad and others, it was observed, "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 field". With immense respects and speaking most humbly, retrospective legislation does not appear to be the thread running through the judgment of Supreme Court. Therefore, additional qualification which did not exist at the time of sale does not appear to have been engrafted restrospectively by the Supreme Court, in case of Ahmad and others. Ownership of the estate simpliciter was found repugnant to Islamic injunctions but in case of its being coupled with contiguity, it was a valid preferential qualification in Islamic law of pre‑emption. No legislation having been made by the competent legislature to add anything to the existing qualification, the one found repugnant to Islamic injunctions shall disappear from the statute book with effect from 31‑7‑1986. That is the only logical corollary of the decision in case of Malik Said Kamal Shah. Even otherwise, addition of contiguity to the ground already taken in the plaint after expiry of about 24 years merely to enable the pre‑emptor to dislodge a bona fide vendee from the land purchased by him in 1964 shall not serve the cause of justice. It is in this view that I uphold and affirm the judgments of the Courts below and order dismissal of the second appeal in limine. H.B.T./A‑939/L Appeal dismissed.