' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been directed against the judgment, dated 21-3-1994 passed by a learned Single Judge of the Lahore High Court in exercise of his revisional jurisdiction in a pre-emption matter.
2. Leave was granted in this appeal vide order, dated 25-10-1995 as under:--- "This petition was heard and dismissed on 18-10-1995, but when dictating the order, it was noticed on perusal of the case-law referred to in the impugned judgment of the High Court that in two out of three cases relied upon by the learned Judge in the High. Court, viz., the one reported in 1993 SCM R 1089, and the other in 1993 SCM R 1316, section 34(2) of the Punjab Preemption Act, 1991 did not fall for consideration at all and the third case reported in 1993 SCM R 2050 was decided on the basis of Rozi Khan's case reported in 1992 SCM R 445 wherein section 35(2) of the N.-W.F.P. Pre- emption Act (X of 1987) was construed/interpreted which provision, it was observed, was somewhat different from section 34(2) of the Punjab Preemption Act, 1991. Case has, therefore, been re-heard today and leave granted to consider whether the learned Judge in Chamber when dismissing the petitioner's suit on the ground that no suit for pre-emption could be decreed after the target date fixed in Said Kamal's case, i,e, 31-8-1986 correctly examined the effect of section 34(2) of the Punjab Pre-emption Act, 1991, reproduced hereunder, on the petitioner's appeal pending before the District Judge:- "Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof."
3. The sole question for consideration involved in the present appeal would relate to the impact of section 34(2) of the Punjab Pre-emption Act , 1991 on the suits and appeals which were instituted under Punjab Pre-emption Act, 1913 and in which judgments and decrees were passed before 31-7- 1986.
4. This Court while considering the scope of section 35 of N.-W.F.P. Pre-emption Act 1987 (Act X of 1987), which is parallel provision to section 34(2) of the Punjab Pre-emption Act, 1991 in Rozi Khan v.
Karim Shah 1992 SCM R 445 held as under:--- "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 (2) of section 35 mean "those judgments 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 circumstances 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 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 favor of the plaintiff/pre-emptor decreeing the suit for preemption)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.F.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-emption) had been passed before the aforesaid dates and the said judgment was being cancelled before the revisional Court or the High Court in its writ jurisdiction such proceedings 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 of 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 submission 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 therefore except, perhaps, the alteration of mutations and the execution of the degree. However, for such proceedings distinct procedure has been laid down in other statutes such as the Land Revenue Act and Civil Procedure Code."
' It was thus observed 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 preemptors shall stand dismissed, except those in which the right, of preemption is claimed under the provisions of Act X of 1987.
5. Section 34(2) of the Punjab Pre-emption Act 1991 provides as under:--- "34(2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (1 of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof."
6. The provisions of section 34(2) ibid would apply to the suits and appeals filed under the Punjab Pre-emption Act, 1913 in which judgments and decrees were passed before 1-8-1986 and notwithstanding the repeal of Punjab Pre-emption Act, 1913, the proceedings in such cases would be continued and thus the decree obtained before the target date could be defended under the old Act and if no such decree in favor of pre-emptor was passed before 1-8-1986, the proceedings in the suits and appeals would not continue under the Punjab Pre-emption Act, 1913. The correct position in the light of law laid down in Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 would be that if the pre-emption decree was passed in a suit before 1-8-1986 and appeal was pending against such decree, it would be covered by the provisions of section 34(2) of the Punjab Pre-emption Act, 1991 and if pre-emption suit was dismissed before the said date, the pre-emption decree even if subsequently passed in appeal would not be saved by section 34(2) of the (ibid)
Act.
7. In the present case, the respondents pre-empted the transaction of sale based on a mutation, dated 4-2-1972. The trial Court dismissed the suit vide judgment, dated 13-9-1975 but it was decreed by the learned Additional District Judge, Rahimyar Khan vide judgment, dated 13-6-1993 in appeal. The respondents sought review of the judgment by way of filing review petition under section 114 read with Order XLVII, Rules 1 and 2, C.P.C. And on its dismissal by the Appellate Court vide judgment, dated 18-1-1994, the appellant invoked the revisional jurisdiction of the Lahore High Court in the matter and a learned Single Judge vide the impugned judgment, allowed the revision petition and set aside the pre-emption decree in the light of law laid down by this Court in Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360, wherein it was held that the pre- emption suits pending before the Courts filed under the old re-emption law could not proceed under the said law and the decrees passed in such cases after 31-7-1986 would be without jurisdiction.
8. Learned counsel for the appellants while placing reliance on Muhammad Sharif v. Muhammad Sharif 1992 SCM R 1129 contended that words "judgments and decrees" used in section 34(2) of the Punjab Pre-emption Act, 1991 would cover all "judgments and decrees" passed for or against the plaintiffs in the pre-emption suits and would not refer only to those judgments and decrees which were passed in favor of preemptor, therefore, the case in hand would not be hit by the law laid down by this Court in Government of N.-W.F.P. v. Said Kamal Shah (supra). Learned counsel, when confronted that a different view was taken by this Court in Rozi Khan and others v. Karim Shah and others 1992 SCM R 445, he frankly conceded that the provisions of section 35(2) of the N.-W.F.P. Pre- emption Act, 1987 are similar to the provisions of section 34(2) of the Punjab Pre-emption Act, 1991 and in the light of the law laid down by this Court in Rozi Khan and others v. Karim Shah and others 1992 SCM R 445 the decree passed in the suit of appellants after the target date would not be protected. The case in Rozi Khan and others was decided by a Bench of five learned Judges of this Court whereas the case of Muhammad Sharif v. Muhammad Sharif 1992 SCM R 1129 was heard and decided by a Bench of two learned Judges of this Court, therefore, the dictum laid down in Rozi Khan and others v. Karim Shah and others 1992 SCM R 445 would hold field with all force and the judgment in Muhammad Sharif v. Muhammad Sharif 1992 SCM R 1129 would not be followed. The decree in the pre-emption suit filed by the appellant under Punjab Pre-emption Act, 1913 was passed in appeal in 1993 which would be hit by the law declared in C Government of N.-W.F.P. v,.
Said Kamal Shah PLD 1986 SC 360 and consequently, would not be covered by the provisions of section 34(2) of the Punjab Pre-emption Act, 1991.
9. For the reasons given above, this appeal fails and is accordingly, dismissed. The parties are left to bear their own costs.