2000SCMR941 (PLP)

CH. MUHAMMAD ARIF, J.

Leave to appeal is sought against judgment, dated 22-2-1999 passed by a learned Judge in Chambers of the Lahore High Court, Multan Bench, Multan dismissing the present petitioners' Civil Revision No. 3 D of 1999 with the result that the judgment, and decree, dated 26-11-1998 passed by the learned District Judge, Layyah observing (1) that (Old) Punjab Pre-emption Act, (No. 1 of) 1913 was to hold the field, (2) that the pre-emption suit of the respondent Mst. Nasima Faiz was in order and (3) that her suit is not hit by the lack of Talabs, was maintained.

2. The background in which this petition has come to be made by the petitioners is that respondent/plaintiff Mst. Nasima Faiz filed a suit for possession through pre-emption against the -petitioners/vendees regarding land measuring 398 Kanals situated in Chak No.357-A/TDA, Mauza Lohanch Thal Kalan on the ground that she was a collateral of the vendors as also a co-sharer in the Khata. The suit was decreed by a Civil Judge III Class, Muzaffargarh on 7 2-1976, although he lacked pecuniary jurisdiction in that it related to the sale of the suit land for a sum of Rs.49,000 through a Registered sate-deed, dated 12-11-1968. 1st round 2-A. The petitioners successfully appealed against judgment and decree, dated 12-11-1968 before the learned District Judge, Layyah and the, matter was remanded to the trial Court on 23-12-1986. The respondents filed Civil Revision No.113 of 1987 and the same was dismissed on 23-4-1993. Thereafter, the suit was placed before the Trial Court and- was dismissed on 26-9-1994. 2nd round

3. Respondent Mst. Nasima Faiz filed an appeal against judgment and decree, dated 26-9-1994 and the same was, accepted by the learned District Judge vide order, dated 28-11-1995 and the case remanded to the trial Court which obliged the petitioners to file FAO No.55 of 1995. The High Court, allowed FAO No.55 of 1995, set aside the remand order, dated 28-11-1995 and directed the learned District Judge to decide the appeal himself in accord lance with law applicable in the facts and circumstances of the ease. This happened in September, 1998.

4. The case was again placed before the learned District Judge, Layyah who decreed the suit of the respondent vide judgment and decree, dated 26-11-1995'.

5. Judgment and decree, dated 26-11-1998 was impugned by the petitioner in the High Court through Civil Revision No.3-D of 1999 which has been dismissed by the learned Judge in Chambers vide judgment, dated 22-2-1999 with the result that the judgment and decree, dated 26-11-1998 passed by the learned District Judge, Layyah favouring respondent Mst. Nasima Faiz with the observation that her suit is to be governed under the Act and the same is not hit by lack of "Talabs", was upheld.

6. Hence this petition.

7. After hearing Mr. Ch. Muhammad Abdus Salim, learned Senior Advocate Supreme Court in support of this petition as also Mian Atta-ur- Rehman, learned Advocate Supreme Court for the respondent/caveator, we are inclined to grant leave to consider the following questions: (1) Whether the right of pre-emption was at all available with regard to the suit land as the same vested in the Thal Development Authority and proprietary rights had not been conferred as yet upon the private parties? (2) Whether the right of pre-emption was available against Colony Land under the (OLD) Punjab Pre-emption Act (No.1 of) 1913 as the satire stood exempted from pre-emption under section 8 of the said Act? (3) Whether a Civil Judge III Class was possessed of the pecuniary jurisdiction in the matter and if the answer to this question is in the negative then whether the entire superstructure thereon is not liable to be struck down? (3-A) Whether the judgment, dated 24-10-1993 passed by the High Court in. Civil Revision No. 1-13 of 1987 has not been lost sight of in that this case has not been tried by a Court of competent jurisdiction both at the trial and appellate stages? ' (3-B) As the judgment and decree passed by Civil Judge III Class had been reversed, whether the suit was not liable to be: processed under the provisions of the (Old) Punjab Pre-emption Act (No. I of) , 1913? (4) Whether the respondent-plaintiff was not required to prove her right of pre-emption by entering the witness-box as a P.W.? (5) Whether the case reported as Government of N.-W.F.P. through Secretary, Law Department v, Malik Said Karnal Shah (PLD 1986 1 SC 360) is not attracted to the Instant case ?

8. Status quo to be maintained, meanwhile. M.B.A. /A-16/S Leave granted.