' MAULVI ANWARUL HAQ, J.--This is rather an unfortunate case. Vide mutation No.6611, attested on 16-6-1988, the respondent purchased the suit-land, mentioned in the plaint, for a consideration of Rs.1,00,000. On 27-2-1989, the petitioner filed a suit for possession of the suit-land by pre-emption.
According to him the market price of the land is not more than Rs.60,000 which was actually paid.
He claimed to be a co-sharer in the suit land as also "Shafi-e-Khaleet" and "Shafi-e-Jar".
Performance, of "Talbs" was pleaded. The respondent filed written statement denying the said allegation. Issues were framed on 17-6-1989. On 26-10-1991, the respondent filed an application for rejection of the plaint under Order VII, Rule, C.P.C. Vide order and decree, dated 24-6-1992, the application was rejected by the learned trial Court on the ground that since no law of pre-emption was in existence when the suit was filed, it cannot proceed and at the same time the suit was held to be barred by time. First appeal filed by the petitioner was dismissed by learned ADJ., Chunian on 3-2-1993. C.R. No. 706/93 filed by the petitioner was allowed by this Court on 21-2-2000. The case remanded back to the learned trial Court with the direction to decide the same afresh in accordance with the new law of pre-emption. Admittedly this order was not challenged before the Hon'ble Supreme Court of Pakistan. After the remand, learned trial Court adopted a novel procedure. He proceeded to record the statement of the parties purporting to act under Order X, C.P.C. Thereafter he heard the arguments and then he proceeded to decide the issues. Issue No.7 pertaining to "Talbs" was answered against he petitioner. Issues Nos. 5 and 6 pertaining to superior right of pre-emption and the market value were not answered as the plaint had already been rejected while deciding issue No.3. However, under issue No.4 the suit was found barred by time.
Issue No.3 regarding estoppal was held to be redundant. The suit was also found to be not maintainable and issue No.1, of course, was answered against the petitioner pertaining to cause of action. The suit was accordingly dismissed on 9-12-2000.
2. Learned ADJ., Chunian, Distt. Kasur, faithfully followed the suit and proceeded to dismiss the appeal on 3-5-2002.
3. Learned counsel for the petitioner contends that the suit having been filed during the interregnum i.e. 1-8-1986 to 28-3-1990, it was to be decided in accordance with section 35 of Punjab Preemption Act, 1991 and this was the precise direction of this Court while remanding the case earlier. Learned counsel for the respondent has tried to support the impugned judgments and decrees.
4. I have gone through the copies of the records with the assistance of the learned counsel for the parties. It is indeed shocking that both the learned Courts below have referred to order, dated 21-1- 2000 of this Court passed in C.R. No. 706/93 but have failed to comply with the same. The suit was filed during the said interregnum. The sale had taken place even before the judgment in Said Kamal's case had taken effect on 1-8-1986. The matter was fully covered by section 35 of Punjab Preemption Act, 1991. Learned Courts below have proceeded to non-suit the petitioner on the ground of non-performance of "Talb-eMawathibat", whereas under. Said law, he was required only to prove "Talb-e-Ishhad" in presence of two witnesses and the limitation of the suit was one year.
The judgment in the case of Rana Ghulam Shabbir (PLD 1993 SC 1) did not have retrospective effect and the suit filed long before the passing of the said judgment was to be decided in accordance with the new law as directed by this Court earlier on 21-2-2000 while remanding the case. I have already noted above that none of the parties was given a chance to lead evidence for and against the issues framed by the learned trial Court. This C.R. Accordingly is allowed. Both the impugned judgments and decrees of learned Courts below are set aside. The result would be that the suit shall be deemed to be pending in the Court of Mr. Adnan Mushtaq, Civil Judge, Chunian. The parties shall appear before the said learned Civil Judge on 16-5-2007. Records will be requisitioned.
The suit will be decided in terms of section 35 of Punjab Pre-emption Act, 1991. The petitioner shall be given an opportunity to prove making of "Talb-e-Ishhad" in accordance with law. The evidence ion other issues will also be recorded and all the issues shall be decided afresh.
5. No orders as to costs.
6. Copy of this order shall be remitted to the said learned Civil Judge by the office immediately.