1987 PLP 2016 (CLC)

‑‑‑Ss. 4 & 15‑‑Superior right of pre‑emption‑‑Law laid down by Supreme Court that owners in estate have no right of pre‑emption (PLD 1986 SC 360), held, had no retrospective effect and would not operate to set aside decrees already passed in such cases‑‑Suit of pre‑emptor on basis of their being owners in estate decreed much before law laid down by Supreme Court‑‑Case of pre‑emptor was not hit by ruling of the Supreme Court. Government of N.‑W.F.P. v. Said Kamal Shah P L D 1986 S C 360 ref. Muhammad Ramzan Ayaz for Appellants. Date of hearing: 26th January, 1987. The respondents filed a suit for possession of the suit land through pre‑emption which was decreed by the learned Civil Judge, Multan vide judgment and decree dated 29‑1‑1986 on payment of Rs.2,11,710 with an order that a sum of Rs.59,630 out of the said amount will go to the Agricultural Development Bank of Pakistan, Abdali Road, Multan as there was a charge to this extent on the land in dispute. An appeal filed by the appellants was dismissed by the learned Additional District Judge vide order dated 13‑1‑1987. Hence this second appeal.

2. I have heard learned counsel for the appellants. The learned counsel argued that in view of the law laid down in Govt. of N.‑W.F.P. v. Said Kamal Shah P L D 1986 S C 360 the suit could not be 'decided in favour of the respondent by the learned first appellate Court because by that time the respondent had lost the right of pre‑emption, if any, as their claim was based on the plea that they were owners in the estate. In fact the respondent had alleged that they were collaterals and co‑sharers in addition to being the owners in the estate. However, the learned trial Court found that they had failed to prove that they were collateral/ heirs of the vendor or that they were co‑sharers in the land in dispute. Their plea that they were owners in the estate was upheld by the learned trial Court and confirmed by the learned appellate Court. Therefore, the suit of the respondent has been decreed only on the basis of their being owners in the estate. Obviously, under the law laid down in the said ruling, now and with effect from 1‑8‑1986 owners in the estate have no right of pre‑emption. But the decree in this case was passed by the learned trial Court on 29‑1‑1986, i.e. much before the law laid down therein took effect from 1‑8‑1986. The said law has no retrospective effect and does not operate to set aside the decrees already passed in such cases. Therefore, the law laid down therein has not taken away the right of pre‑emption of the respondent which was affirmed through the said decree dated 29‑1‑1986. The learned first appellate Court had to decide the right as it stood on the day of the said decree i.e. , 29‑1‑1986 and not on the day when the appellate judgment took effect from 1‑8‑1986. Therefore, it was legally justified in holding that the judgment and decree of the learned trial Court was right and valid. A pre‑emptor has to maintain superior right of pre‑emption till the time of the decree is passed in his favour which, as already, was passed on 29‑1‑1986 and the respondents had maintained their superior right of pre‑emption by then. Therefore, their case is not hit by the dictum of the Honourable Supreme Court laid down in the said ruling.

3. Learned counsel for the appellants has also argued that the learned Courts below did not allow any compensation for improvements made by them. The learned Courts below have given a concurrent finding that. case for improvements was not made out and there is no reason to differ with them. He has also argued that the learned trial Court was not competent to withhold an amount of Rs.59,630 for the Agricultural Development Bank of Pakistan. It may be pointed out that a pre‑emptor has to step into the shoes of a vendee. When the vendees held the land in dispute with this charge and subject to payment of the said amount to the said bank the pre‑emptors have also to get the same with the said charge. Instead of passing on the land to them with the said charge the learned trial Court was right in saying that they should deposit whole of the amount in Court out of which the vendees will withdraw the price less the said Rs.59,630 which obviously has to go the said Bank. There is, therefore, no illegality in the judgments under appeal on this point. The appeal is dismissed in limine. M. Y . H . /M‑191/L Appeal dismissed.