2006 PLP 1774 (CLC)

SYED SAKHI HUSSAIN BOKHARI, J.

This revision petition is directed against the judgment dated 1-6-1992 passed by learned Additional District Judge, Kasur whereby appeal brought by petitioner against the judgment and decree, dated 7-2-1989 passed by learned Civil Judge, Kasur was dismissed.

2. Relevant facts for the disposal of this revision petition are that Fazal Din, petitioner filed suit for possession through pre-emption against the respondents and stated that Lal Din son of Shahabo was owner of suit-land (measuring 9 Kanals, 15 Marlas situated in Village Bahadurpura Tehsil and District Kasur) and he transferred the same in favour of defendants/respondents vide registered sale-deed dated 16-8-1972. He further stated that being co-sharer in Khewat in question he has superior right of pre-emption qua the defendants/respondents. Learned trial Court framed issues, recorded evidence and dismissed the suit brought by petitioner vide judgment dated 7-2-1989 on the ground that since suit had not been decreed in favour of petitioner/pre-emptor till 31-7-1986, therefore, in view of PLD 1986 SC 360 suit cannot be decreed after 31-7-1986. The petitioner filed appeal thereagainst which was dismissed 'vide judgment, dated 1-6-1992 passed by learned Additional District Judge; Kasur. Hence this revision petition.

3. I have heard the arguments and perused the record.

4. As mentioned above, the petitioner had filed suit for possession through pre-emption regarding the suit-land purchased by respondents/ defendants vide registered sale-deed, dated 16-8-1972. He filed the suit on 27-7-1973 but plaint was rejected vide order, dated 2-2-1981. The plaintiff tiled appeal there against which was accepted vide judgment dated 13-10-1985 and case was remanded for decision afresh in accordance with law. Thereafter suit was decreed in favour of petitioner vide judgment dated 15-11-1987. The respondents filed appeal there against and appellate Court remanded the case vide judgment, dated 1-7-1988 with the direction that appellants be provided opportunity to bring on record "Jainabandi" for the year 1967-68. Learned trial Court recorded evidence and after hearing the parties dismissed the suit brought by petitioner vide judgment dated 7-2-1989 on the ground that suit had not been decreed in favour of petitioner/pre-emptor till 31-7-1986, therefore, in view of case of Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 the suit cannot be decreed in his favour. His appeal was dismissed vide judgment dated 1-6-1992 passed by learned Additional District Judge. The case of the petitioner is that earlier on case having been decided on 2-2-1981, therefore, further proceedings were required to be regulated under the Punjab Pre-emption Act, 1913, in view of the provision contained in section 34 of the present Act. For which proposition reliance has been placed on the case of Muhammad Sharif v. Muhammad 1992 SCMR 1129 and it has been argued that impugned judgments are liable to be set aside. However, the case of respondents is that suit had not been decreed in favour of pre emptor/petitioner till 31-7-1986 therefore, the suit could not be decreed in his favour after 31-7-1986. As stated earlier the suit was filed on 27-7-1973 and it had not been decreed in favour of petitioner/pre-emptor before the target date of 31-7-1986. The suit was decreed in favour of pre-emptor for the first time on 15-11-1987 therefore, learned Courts below have rightly dismissed the suit. Reliance can be placed on the case of Zaheer-ud-Din Babar and another v. Allah Lubhaiya 2004 SCMR 1338 and Sh. Hukmat Khan v. Hashim Khan and 2 others PLD 2004 SC

15. The judgment, dated 1-6-1992 shows that learned Additional District Judge has decided the appeal brought by petitioner after appraisal of entire material available on record. Paras Nos.3 and 4 of the said judgment, read as under:-- "(3) Learned counsel for the appellant contends that impugned judgment and decree are not sustainable in the eye of law as having been passed against the requirements of law because the suit so tiled by the appellant/plaintiff in 1973 was to proceed in accordance with old Pre-emption Act and that earlier the said suit was decreed on 15-11-1987 and as a result of appeal preferred by the respondents/defendants the said judgment and decree were set aside and the case was remanded for fresh decision after recording additional evidence vide judgment and decree, dated 11-7-1988 passed by learned Additional District Judge, Kasur, therefore, after the remand learned trial Court was not competent to dismiss the suit in view of the esteemed judgment referred (supra). On the other hand, it is argued that impugned judgment and decree are perfectly legal and does not suffer from any inherent legal infirmities and flaws. Reliance has been placed in this behalf upon the esteemed judgment reported as PLD 1991 Lah. 60,1988 SCMR 1800 and 1988 SCMR 1933. (4) I have considered the arguments addressed by the learned counsel for the parties and I do not feel myself in agreement with the learned counsel for the appellant because instant suit for pre-emption was filed in the year 1973 and in view of the wisdom so laid down in the esteemed judgments referred (supra), the suit was rightly dismissed by the learned trial Court because no decree could be passed in the said suit in view of the esteemed judgments of the superior Courts as the said suit was not fulfilling the requirements of Islamic principles of Pre-emption i.e. requirement of Talbs." The impugned judgment is just and proper. There is no illegality or infirmity in the impugned judgment, therefore, there is no justification to set aside the same.

5. For what has been discussed above I am of the considered opinion that this revision petition has no force and the same is accordingly dismissed. No order as to costs. S.M.B./F-34/L Petition dismissed.