' MUHAMMAD NAWAZ ABBASI, J.---This direct appeal has been filed against the judgment dated 10- 2-2005, passed by a learned Single Judge of the Lahore High Court, Multan Bench, whereby the concurrent judgment and decree passed by the two courts in a preemption suit was reversed in the revisional jurisdiction.
2. The facts of the case in small compass leading to the filing of this appeal are that appellants purchased the suit-land for a consideration of Rs,7,50,000 vide registered sale-deed dated 29-1- 1989 which was preempted by Mushtaq Ali, respondent herein, on the ground of ownership in the village, contiguity and common source of irrigation. In the plaint, it was claimed that pre-emptor on coming to know about the sale then and there having made Talb-i-Mutwathibat in presence of -witnesses, also made, Talb-i-Ishhad in the prescribed manner. The suit was contested by the vendee taking the plea that under the law superior right of preemption could not be claimed on the basis of ownership in village and Talbs were also not made in accordance with requirement of law. The learned trial Judge in the light of the objection that suit, could not proceed having framed the preliminary issue with regard to the right of pre-emption, dismissed the suit vide judgment and decree dated 10-6-1990 being not maintainable having been filed before promulgation of Punjab Pre-emption Ordinance, 1990. Later pre-emptor moved an application for restoration and revival of the suit with the assertion that suit filed in the intervening period was maintainable and the trial Court vide order dated 24-9-1991, restored the suit with the observation that suit would be decided in terms of section 35 of the Punjab Pre-emption Act, 1991. The trial Court however, after framing issues and recording evidence of the parties dismissed the suit vide judgment and decree dated 23-1-1996 and the first appeal filed by the respondents against the dismissal of suit by the trial court was also dismissed by a learned Additional District Judge vide judgment dated 6-3-2000 with the observation that a period of only four months having been provided under section 35 of the Punjab Pre-emption Act, 1991, the suit could not proceed. The civil revision filed by the respondent against the judgment of the learned Additional District Judge in the Lahore High Court, was however, allowed vide impugned judgment and hence the present appeal.
3. Learned counsel for the appellants contends that the learned Judge in Chambers in the High Court without proper appreciation of the question of law and facts raised therein reversed the concurrent findings of two Courts through misreading and non-reading of evidence and placing reliance on Pir Ghulam v. Noor Zaman 1979 SCM R 360; Muhammad Nawaz v. Gul Sher PLD 2004 SC 493; .Imam Bakhsh Shah v. Muhammad Ali Khan (AIR (33) 1946 Sindh) 55 submitted that on the basis of common course of water through Government channel of water, no right of pre-emption could be claimed and Talbs were also not made in accordance with the law laid down by this Court in Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315. The learned counsel vehemently contended that the learned Judge in Chambers in the High Court rendered the impugned judgment while proceeding beyond the scope of revisonal jurisdiction under section 115, C.P,C. And placing reliance on Chaudhry Javed Illahi v. Mrs. Shafaqat Malik and 2 others 2003 YLR 948, Sardar Khan and others v. Muhammad Siddiqui 20uv MLD 616, Fateh Din v. Muhammad Boota 2000 M LD 1329 has contended that without the claim and proof of zaroorat, the suit was rightly dismissed.
4. Learned counsel for the respondent on the other hand, has contended that the suit was restored under section 35 of the Punjab Preemption Act, 1991 on 24-9-1991, i,e, prior to the verdict given by this Court in Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 and under the existing law, the limitation for filing the suit for pre-emption was one year and pre-emptor having proved Talb-i-Ishhad in presence of two witnesses succeeded in the suit. Learned counsel in support thereof has placed reliance on Mst. Razia Begum v. Fazal Hussain 2003 YLR 417 and d Muhammad Aslam and others v. Muhammad Shafi 1995 M LD 441.
5. The learned Judge in Chambers in the High Court while passing the impugned judgment observed as under:-- "I have gone through the copies of the record. I have already detailed above the entire history of the case. It will be seen that the sale took place on 29-1-1989 and the suit was filed on 25-1-1990 i,e, during the interregnum between 1-7-1986 and 28-3-1990 i,e, when the first pre-emption Ordinance was promulgated stating it to be in accord with the judgment of the Hon'ble Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360. The Ordinance was re-promulgated and ultimately Punjab Pre-emption Act, 1991 was promulgated. This Act was again subjected to scrutiny in the said case of Hiji Rana Muhammad Shabbir Ahmad Khan and was further brought in accord with the said judgment in the case of Malik Said Kamal Shah.
' To my mind the suit having been filed before the judgment in the case of Hiji Rana Muhammad Shabbir Ahmad Khan had taken effect, it was squarely covered by section 35 of the Punjab Pre- emption Act, 1991. In fact, the suit was restored in inter parties proceedings on 24-9-1991 with the finding that it is liable to be restored under the said provision of law and this order was never challenged by the respondents. I have already reproduced relevant portion of the plaint above.
Sufficient pleadings were made to bring the case within the ambit of section 35(2) of the said Act.
To my mind, the suit was filed within the period of limitation prescribed and Talb-i-Ishhad has been made in presence of two witnesses, namely, Abdul Rashid P.W.2 and Muhammad Hussain P.W.3.
This evidence has been discarded on the erroneous reasoning that a written notice, was required to be served."
6. After hearing the leaned counsel for the parties and having gone through the record and considered the questions raised before us we have found that the conclusion arrived at by the learned Judge in Chambers in the High Court is based on misappreciation of evidence and law on the subject. The questions of limitation with reference to section 35 of Punjab Pre-emption Act, 1991, appears to have been not decided in the spirit of law and similarly, the requirement of zarar and zaroorat as well as the effect of the judgment of this Court in Haji Raja Muhammad Shabbir Ahmed Khan's case. (supra) and the question regarding fulfillment of the requirement of Talbs in peculiar facts of this case were not decided in accordance with law rather the same have been dealt with on the basis of general proposition of law. In view of the fact that the crucial questions with regard to the superior right of pre-emption and performance of Talbs for exercise of such rights have not been properly attended and decided to the satisfaction of law, therefore, we deem it proper to send the case back to the High Court for decision of the above question in the light of evidence brought on record and law applicable at the relevant time.
7. In consequence to the above discussion, we allow this appeal, set aside the impugned judgment and remand the case to the High Court for decision of civil revision on all points including the right of preemption on the basis of common source of irrigation from government water channel, afresh in accordance with law. These are the reasons for our short order.Of even date passed in the above case.