1992 PLP 445 (SCMR)

NASIM HASAN SHAH, J.

This judgment will dispose of all the above-noted appeals as the same questions arise for determination therein. In fact, the result in each of these appeals depends on the answer given to the following two crucial questions: (a) What is the impact of the repeal section namely Section 35 of the N.-W.F.P. Pre-emption Act, 1987 (X of 1987) on suits and appeals which were instituted under the N: W.F.P. Pre-emption Act, 1950 but were still pending when the above-mentioned Act X of 1987,was enforced on 28-4-1987? (b) Who are the persons who can exercise the right of pre-emption under the provisions of Act (X of 1987)? So far: as the, first, question is concerned, some' assistance, we note, is available from this Court's decision in the case of Ghulam Sarwar v. Abdul Jalil (PLD 1991 SC 500) as it also involved, inter alia, the interpretation of section 35 of the new Act (X of 1987). The facts of Ghulam Sarwar's case, so far as relevant for the purposes of the question now under examination were, that the trial Court had dismissed the suit for pre-emption filed by the appellant therein. This suit was filed on the ground of being a co-sharer and a participator in the immunities and . appendages and also owner of the contiguous property. The appeai, however, was allowed by the Additional District Judge and the suit was decreed on 16-5-1983. However, the High Court on revision vide judgment dated 16-5-1987 reversed the findings of the learned Additional District Judge and restored those of the learned trial Court. The suit, resultantly, was dismissed. In the meanwhile, on 28-4-1987, N.-W.F.P. Pre-emption Act (Act X of 1987), hcroinafter soave times referred to as the Islamic Law of Pre-emption, was enforced and the question, inter alia, arose as to impact of the provisions of the Repealing Section namely section 35 of the new Act on the said pending case. Section 35 of the Act is in the following terms:

35. Repeal.--(1) The North-West Frontier Province Pre-emption Act, 1950 (N.-W.F.P. Act XIV of 1950) is hereby repealed. (2) In the cases and appeals tiled under the law referred to in sub section (1) in which ,judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases, and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not covered under subsection (2) instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act." While considering this question this Court observed that "this section envisages pendency of appeals and cases against the judgments and decrees which have become final". And the question arose as to what is the true meaning of the word "final"? After referring to the meaning assigned to the word "final" and the meaning given to the expression "final decision" in Black's Law Dictionary the conclusion reached was that the word "final" in this section meant the ' judgment 'or decision which terminates action in Court which renders it". This word was understood in the same sense by this Court even in an earlier case (Rizvi v, Maqsood Ahmed : PLD 1981 SC 612) and this Court had given a similar meaning to these words: It was said in that case: "An order maybe final, if it determines the-rights of the parties. concludes the controversy so far as a particular authority or, forum is concerned notwithstanding that such an order may be open to challenge in appeal etc." Reverting to Ghulam Sarwar's case we observe that their Lordships did not consider it necessary in the circumstances of the said case to decide the question whether the judgment or decree "which terminates the; action in the Court which renders it" must be a decree in favour of the pre-emptor or any other final type of judgment, as this question did not at all arise in that case because to quote the learned Judge:-- "When the North-West Frontier Province Pre-emption Act, 1987 came into force the final judgments and decrees of the two Courts existed and indeed there was a decree in favour of the pre-emptor by the first appellate Court. Therefore, this was a matter which was rightly dealt with by the High Court under the North-West Frontier Province Pre emption Act, 1950 and subsection (3) of section 35 of the North-West Frontier' Province Pre-emption Act, 1987 was not attracted." As a matter of fact, the decree in favour of the pre-emptor by the appellate. Court was passed on 16-5-1983 much before the enactment of the N: W.F.P: Pre-emption Act, 1987 and also much earlier to this Court's judgment in the case of Said Kamal Shah (PLD 1986 SC 360) as a result whereof the provisions of the N.-W.F.P. Pre-emption Act, 1950 became ineffective, from 31-7-1986. However, even the learned Judges did note in their judgment that: "On the question of law the learned counsel for the respondents contended that consistent with the decisions of this Court, the word "final" while the appeal is still pending should be given the same meaning which have been given by the Supreme Court in its decision in Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC ?87). Where a decree had been passed in favour of the pre-emptor only then the proceedings would continue to ~e governed by the law which stands repealed." In view of the foregoing we are inclined to hold that the words "judgments and decrees passed by the Courts have become final" in subsection ('?) of section 35 mean "those judgment and decrees wherein the suit of the pre-emptor has been decreed by the. Courts rendering it" In so thinking we are fortified by the circumstance that this Court has always understood and consistently expounded the concept of finality in Pre-emption Statutes on this premises. (See, inter alia, Bibi. Jan v. R.A. Monny PLD 1961 SC 69 at pages 75/76; Sardar Ali v. Muhammad Ali PLD 1988 SC 287 at page 354). In the light of the foregoing, the effect of the provisions of section 35 of the new Islamic Law of Pre-emption, in our opinion, is that if at the time of the enforcement of the Islamic Law of Pre-emption (i.e. 1-8-1986 when the principles of the Islamic Common Law became applicable in the absence of any statutory law or after 28-4-1987 when Act X of 1987 was promulgated) a final decree in the sense explained above (namely a decree in favour of the plaintiff/pre-emptor decreeing the suit for pre-emption) had already been passed and an appeal against it was pending (which is a further proceeding relating to the case in which the decree was passed), the said further proceedings shall be governed and decided under the provisions of the old Act (N.-W.P.P. Pre-emption Act, 1950) and the provisions of Act X of 1987 would not be attracted. Similarly, if a final judgment (decreeing the suit of the plaintiff/pre-emptor) had been passed before the aforesaid dates and the said judgment was being challenged before the revisionsal Court or the High Court in its writ jurisdiction such proceedings too shall be governed by and decided under the provisions of the old Pre-emption Law enacted in the 1950 Act. The submission that only such a decree can be considered to be a final where all the legal remedies provided for its challenge and in fact resorted to, have been exhausted and is not confined to the judgment and decree of the Court rendering it or in other words a final judgment implies the judgment or the decree of the highest forum to which the case is taken cannot be accepted. Indeed such an interpretation would defeat the provisions of subsection (2) of section 35 of the 1987 Act. This subsection provides that "further proceedings if any relating to such cases and appeals shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof'. Now, if the highest forum has finally decided a case nothing would remain to be done thereafter except, perhaps, the attestation of mutations and the execution of the decree, However, for such proceedings distinct procedure has been laid down in other statutes such as the Land Revenue Act and Civil Procedure Code. This brings us to the second question namely who are the persons who can exercise the right of pre-emption under the provisions of newly promulgated Act (X of 1987). We observe that in subsection (3) of section 35 it is provided that other cases and appeals not covered under subsection (2) and instituted under the Act of 1950 which were pending before a Court before the commencement of the Act of 1987 shall lapse 'and suits of pre-emptors shall stand dismissed, except those in which the right of pre-emption is claimed under the provisions of Act X of 1987. Now the right of pre-emption under the' Act of 1987 has been conferred by the provisions of section 6 thereof. And according to this section, the right of pre-emption vests in the following persons, namely:.. "

6. Persons in whom the right of Pre-emption vests.--The right of pre -emption shall vest-- (a) firstly in Shafi-Sharik; (b) secondly in Shafi-Khalit, and (c) thirdly in Shafi-Jar. 1. "Shafi-Sharik" means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons. II. "Shafi-Khalit" means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation. 111. "Shafi-Jar" means a person who has a right of per-emption because of owning an immovable property adjacent to the immovable property sold." However, section 13 of the Act lays down that the right of pre-emption being claimed by a person will be extinguished unless such person makes a demand for pre-emption. This section is in the following terms:-- "

13. Demand of pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:-- (a) Talb-i-Muwathibat; (b) Talb-i-Ishhad, and' (c) Talb-i-Khusumat. 1. "Talb-i-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know' of the sale declaring his intention to exercise the right of pre-emption. Note.

Any words indicative of intention to exercise the right of pre emption are sufficient. II. "Talb-i-ishhad" means demand by establishing evidence. III."Talb-i-Khusumat" means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre=emptor through any source, he shall make Talb-i-Muwathibat. (3) Where a pre-emptor has made Talb-e-Mawathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 34, or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-e-Ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of Talb-i -Muwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption." According to subsection (3) of section 35 suits and appeals which were instituted under the Act of 1950 and which immediately before the commencement of the Act of 1987 were pending before a Court will lapse in which the right of pre-emption is not claimed under the provisions of the new Act of 1987. Thus, those wits in which the right of pre-emption is claimed under the provisions of the Act of 1987 will not lapse. Now the question is whether under the subsection in which the pending suits are saved are the suits ' in which the right of pre-emption is claimed under the provisions of section 6 but it is the suits of those persons only who are not only vested with the right of pre-emption under section 6 but have also made the Demand of Pre-emption (Talabs) as required by section 13? In order to determine the true intent of the above provisions it should be noted that in the judgment of this Court in the case of Said Kamal Shah (PLD 1986 SC 360) it was also observed that "if possible a consolidated law of pre-emption be enacted accordingly till 31-7-1986" In pursuance of this judgment, the Government of N.--NV.F.P. framed a new law of pre-emption (though not by 31-7-1986 but a few months thereafter) entitled the N.-W.F.P. Pre-emption Act, 1987 which was passed by the Provincial Assembly on 21-4-1987 and after the assent of the Governor published in the Official Gazette on 28-4-1987. Thus, the Act of 1987 was adopted to give effect to the Islamic Law of pre-emption, as explained by this Court in the case of Said Kamal. Herein this Court on the question of demand of pre-emption (Talabs) observed that the requirement of Talab being a sine qua non for the enforcement of the right of pre-emption recognised by the Muslim Law, its non-compliance had the effect of extinguishing the pre emptive right of all such pre-emptors. Accordingly, the suits filed by them in which the Talab was not made and a decree has not yet been passed in their favour (i.e. not passed by 31-7-1986) would fail. In this connection, the following passages occuring in the judgment of M.Taqi Usmani, J. full clarify this point. In para. 102 (p. 459) in the judgment of Said Kamal, the learned Judge observed:-- "A law of Shufa devoid of this essential element would be against the Sunnah." Hence against the Injunctions of Islam. In other words, the demand of pre-emption is an integral part of the right of pre-emption. The upshot of this discussion is that only such suits, which were pending before the commencement of the Act 1987 will not abate where the right of pre-emption is claimed by such pre-emptors in whom the right of pre-emption vests under section 6 of the said Act and they have made a demand of pre-emption (Talab) as required under the provisions of section 13 thereof. We can now proceed to dispose of the above appeals in the light of these answers. CA. No. 20-P/90 (Gul Rahim v. Maula Khan etc.) CA. No.47-P/90 (Sardar Ali Khan etc. v. Talib Gul etc.) CA. No.58-P/90 (Nasrullah Jan v. Haji Khana Mir etc.) CA. 59-P/90 (Nasrullah Jan v. Haji Khana Mir etc.) CA. 60-P/90 (Nasrullah Jan v. Haji Khana Mir etc.) CA. 61-P/90 (Nasrullah Jan v. Haji Khana Mir etc.) CA. 62-P/90 (Nasrullah Jan v. Haji Khana Mir etc.) CA. 63-P/90 (Said Ahmad v. Mir Azam and another). CA. 64-P/90 (Maqbool Shah v. Mst. Phool Begum etc.) CA. 98-P/90 (Muhammad Afzal v. Abbas Khan). CA. 43-P/91(Gul Nabi v. Dr. Hamidullah etc.) CA. 44-P/91(Baz Muhammad v. Habibullah etc.) In these cases no decree for pre-emption has been passed so far and in the light of the views expressed above, while disposing of the common points, these appeals fail and are dismissed hereby. CA. No. 1-P/89 (Rozi Khan etc. v Syed Karim Shah); The decree in favour of the pre-emptor/plaintiff in this case was granted for the first time on 6-4-1988. In view of the foregoing discussion made above, the decree, dated 6-4-1988 cannot be sustained. This appeal must succeed. The impugned decree of the High Court dated 6-4-1988 is, accordingly, set aside and the appeal allowed but without any order as to costs.` CA. No: 16-P/89 (Suleman Shah v Mian Afzal Shah): In this appeal the respondent succeeded in obtaining the decree for possession through pre-emption of the disputed land for the first time on 11-2-1987 from the High Court. As discussed above a decree for pre-emption could not be granted after 31-7-1986. This appeal must succeed and be allowed and the impugned judgment dated 11-2-1987 set aside. CA.No. 66-P/89 (Ghulam Allah M. Jaffar Khan v. Dur M. Khan): In this case, no decree in favour of the pre-emptor/plaintiff had been passed until 31-7-1986. The judgment of the High Court, dated 14-11-1989 remanding the case to the trial Court for decision on merits is, therefore, unsustainable in law. This appeal succeeds and is allowed and the judgment, dated 14-11-1989 set aside. CA. No.18-P/90 (Sultan Ali Khan etc. v. Muqadar Shah.etc.): No decree in this case was passed in favour of the pre-emptor/plaintiff before 31-7-1986. Hence the judgment of the High Court, dated 17-2-1988 dismissing the revision on the ground that no interference was called for is correct. This appeal fails and is dismissed hereby. CA. No.19-P/90 (Sahib Nawaz v. Mst. Khair Zamira): In this case, the decree in favour of the plaintiff/pre-emptor was passed on 26-2-1979. On vendees' revision before the High Court, the case was remanded vide order dated 31-3-1984. Since the decree in favour of the plaintiff had been passed in favour of the pre-emptor before 31-7-1986; further proceedings in the case could no doubt be taken m accordance with the Act of 1950. However, in the proceedings taken after the remand the suit was ultimately dismissed by the High Court on merits. No interference with the order of the High Court is called for. This appeal fails and is dismissed hereby CA. No.68-P/90 (Mir Bashi v. Mian Gul etc.): In this case, the suit of the pre-emptor was decreed for the first time on 29-2-1988 but on appeal the said decree was set aside by the District Judge for non-compliance with the requirement of Talabs. The revision petition filed against the said judgment was dismissed by the High Court on 17-5-1989. The judgment of the District Judge and the High Court being correct this appeal must fail and is, accordingly, dismissed. CA. No.72-P/90 (Nur Muhammad v Awal Jan): This case has been decided by the High Court in accordance with the view taken by us above. This appeal, therefore, fails and is dismissed hereby. CA. No.39-P/91 (Spin Gul etc. v Gul Faraz); In this case, the suit of the pre-emptor was decreed on 23-4-1988. The vendee's appeal was accepted by the District Judge and the said judgment was not interfered with by the High Court. The judgments of the District Judge and the High Court are quite correct and no interference with them is called for. This appeal, therefore, fails and is dismissed hereby. C.P. No.244-P/91 (Gulshad Khan etc. v. Aftab Khan etc.): The suit of the plaintiff/pre-emptor was decreed on 14-1-1988 but on appeal the District Judge, Mardan set aside the judgment and decree of the trial Court on the ground that in the absence of Talab, as required under section 13 of the N.-W.F.P. Pre-emption Act, 1987, no decree could have been passed after 31-7-1986. The High Court agreed with this view and dismissed the revision on 20-4-1991. We are also of the same view, as discussed above. This petition, therefore, fails and is dismissed. M.B.A./R-186/S. Order accordingly.