' MUHAMMAD AKHTAR SHABBIR, J.---Petitioner seeks leave to appeal against the judgment dated 7- 5-2007 passed by a learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur, in W.P. No,567 of 1996.
2. Brief facts of the case are that Muhammad Sharif plaintiff-petitioner herein had instituted a suit for possession through "preemption" over sale of land total measuring 68 Kanal transferred through sale-deed dated 12-1-1978, in favour of Muhammad Rafique vendee defendant/respondent No,1 herein, claiming to be the real brother of the vendees and co-sharer in the property in dispute. The suit was contested by the vendee-defendant/respondent No,1 which was dismissed, vide judgment and decree dated 14-2-1983 by the trial Court. Feeling aggrieved, the plaintiff-petitioner preferred an appeal before the First Appellate Court/Additional District Judge, Rahim Yar Khan, who vide his judgment dated 26-1-1988 accepted the same and decreed the suit. The defendant preferred R.S.A. No,14 of 1988 in the Lahore High Court which was allowed on 23-1-1989. The suit filed by the plaintiff-petitioner was dismissed.
3. After the enforcement of the Punjab Pre-emption Ordinance, 1990, the plaintiff filed an application for 'revival' of the suit in the High Court, which was dismissed on 8-12-1990 with the direction to approach the trial Court. The plaintiff-petitioner then filed an application on 22-1-1991 before the learned trial Court under section 36 of the Punjab Pre-emption Ordinance, 1990, which was also dismissed on 8-9-1991. The said order was assailed through a revision petition which has been accepted, vide order dated 30-1-1996 and resultantly the suit filed by the plaintiff-petitioner had been decreed. The said order of the revision Court was challenged through W.P. No,567 of 1996 before the High Court which was accepted and the order of the revisional Court dated 30-1-1996 was set aside. Hence, this petition for leave to appeal.
4. The learned counsel for the petitioner contended that the suit for pre-emption has been filed by the petitioner-plaintiff being "Yaqjadi"/cosharer under the Old 'Pre-emption' Act, 1913, which has not provided the three requirements of `Talbs' and `Zarar' and `Zaroorat.' The plaintiff was only bound to establish his superior right of pre-emption. Further contended that section 36 of the Punjab Pre- emption being a saving clause has protected the rights of the pre-emptor/petitioner.
5. We have heard the arguments of the learned counsel for the' petitioner and perused the record with her kind assistance.
6. The petitioner had filed his suit on 10-1-1979 under the Punjab Pre-emption Act, 1913 on the basis of superior right of pre-emption being collateral/ "Yaqjadi" and co-sharer of the property in dispute. The Shariat Appellate Bench of Supreme Court in the case of Government of N.-W.F.P.
Through Secretary Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), declared the pre- emption law contrary to the injunctions of 'Quran' and `Sunnah' and in the case of Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287) declared that the dictum laid down in Malik Said Kamal, Shah (ibid) would take effect on 31-7-1986 and the pre-emption suits not decided by the trial Court before the said target date, would not be decreed in favour of unsuccessful pre- emptor after the said date as laid down in the case of Sher Muhammad and another v. Allah Ditta and two others (PLD 1988 SC 412).
7. In the instant case, the suit of the plaintiff Muhammad Sharif, petitioner herein, was dismissed by the learned trial Court for the first time on 14-2-1983 and appeal was decided on 26-1-1988 and the appellate Court decreed the suit which was clearly in derogation to the above referred precedents laid down by this Court which 'emphasize' that no pre-emption suit filed and pending under the Punjab Pre-emption Act, 1913 would be decreed in favour of the plaintiff.
8. The learned counsel for the petitioner vehemently argued that dismissal of a suit is a decree and the learned trial Court while dismissing the suit passed the decree, therefore, the instant suit is protected under section 36 of the Punjab Pre-emption Act, 1991 and the Court was bound to revive the suit. This legal proposition had already been dealt with by this Court in the case of Zafarullah Khan v. Muhammad Khan and others (1993 SCM R 696). The relevant portion of the judgment is reproduced for further ready reference as under:-- "The view taken in this case is that the expression 'judgment and decree' occurring in clause referred to those judgments and decrees alone which had been passed in favour of the pre- emptors.
' It may be mentioned that the Punjab Pre-emption Act, 1991, was enacted to give effect to the judgments of this Court in the cases of the Government of N.-W.F.P. v. Said Kamal Shah, Sardar Ali v.
Muhammad Ali, Mst. Aziz Begum v. Federation of Pakistan etc seq. The view expressed in the Rozi Khan's case, ibid, is in accord with the above judgments of this Court. We would accordingly reject the contention of the pre-emptors that even though their suits were not decreed before 31-7-1986 yet the decrees passed after that date stood saved by the provisions of section 34 (2), ibid. We accept these appeals, set aside the decrees passed in favour of the pre-emptors and dismiss their suits."
Further the provision of section 34 (2) of the Punjab Preemption Ordinance would apply to cases and appeals filed under the Repealed Act of. 1913 in which judgments and decrees were passed before 1-8-1986 and in which further proceedings could still be continued under the old Act.
9. Section 34(2) of the Punjab Pre-emption Act, 1991. Contemplates that "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." Section 35 saving clause of the Act further enshrines that,-- "(1) notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August, 1986 and the 28th March 1990, (both days inclusive) in which the right of pre-emption was claimed as is available under his Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient it the preemptor establishes that he had made `Talb-i-Ishhad' in the presence of two truthful witnesses."
10. From plain reading of the above provisions of law, it is manifestly clear that all those suits which were instituted or pending between 1-8-1986 and 28-3-1990, shall be revived on the application of the aggrieved person within 60 days of coming into force of the Act, meaning thereby, the law required pendency of the suits between the integral period i,e, 1-8-1986 to 28-3-1990, including the appeal.
11 So far as the instant suit is concerned, it was finally decided through R.S.A. No,14 of 1988 by the High Court on 23-1-1988. It is established that neither the suits nor the appeal or any other proceedings were ending till the target date i,e, 28-3-1990. Those suits/plaints were liable to be revived or decided if the pre-emptor has established that he had made "Talb-i-Ishhad" in the presence of two truthful witnesses. Reference in this behalf can be made to the case of Pervaiz Anjum Ghauri and another v. Abdul Rahim and 3 others (1995 SCM R 299). In this respect, in the present case, neither it was asserted in the plaint nor any issue was framed by the trial Court nor any such evidence was produced by the plaintiff.
12. The plaintiff-petitioner filed the application for revival of his suit on 24-1-1991 under section 36 of the Punjab Pre-emption Ordinance (No, XXVII) of 1990 which was enforced on 26-4-1990. The saving clause has provided 60 days period for filing the application of coming into force of the said Act. The application has been filed before the trial Court after expiry of period of 60 days and was rightly dismissed by the Courts below. Section 35 of the Punjab Pre-emption Act, 1991, was not attracted to the present case and the plaintiff's was not saved under the said saving clause contained in section 35 of the Act. The High Court had rightly found that the application filed by the petitioner for revival of the suit was not maintainable as the right of "pre-emption" by the plaintiff has not been claimed under the Punjab Pre-emption Act, 1991. Reference can usefully be made to the cases of Muhammad Salam and others v. Wali Muhammad and others (1997 SCM R 108) and Nazir Ahmad and 2 others v. Faqir Muhammad (1996 CLC 658).
13. In view of the above discussion, we find that the learned High Court has rightly and validly passed the impugned judgment. There is no error of law or legal infirmity apparent on the face of record and the impugned judgment is unexceptionable.
14. For the foregoing reasons, we do not find any substance in the petition which is dismissed and leave to appeal is refused accordingly.