' CH. IJAZ AHMED, J.---Necessary facts out of which the present appeal arises are that present appellants filed a suit for pre-emption against Allah Dad/Respondent No, 3 regarding land in question measuring 40 kanals situated at khatta No, 407 Mauza Pati Tali Tehsil and District D.G.
Khan in the Court of Senior Civil Judge D.G. Khan on 29.1.1984 on the basis of collateraiship share and co-sharer in the disputed khata. During the pendency of the suit compromise arrived at between the parties. The compromise was filed in the Court on 4.4.1988. They made' statement for the decree of the suit vide written compromise Ex. C.1. The Trial Court decreed suit in term of the compromise vide judgment and decree dated 4.4.1988 wherein appellants/plaintiffs were directed to deposit the decretal amount Rs, 1,30,000/- after deducting 1/5th amount already deposited by them till 15.9.1988. The said amount was deposited by the appellants/ plaintiffs within stipulated period which was not withdrawn by respondent No, 3/defendant. Respondent No, 3/defendant being aggrieved filed an application for review and recalling of the judgment and decree dated 4.4.1988 under Order 47, rule 1 read with section 151 and section 12(2), CPC in the Court of Senior Civil Judge D.G. Khan on 30.10.1988. Appellants filed written statement controverting the allegations levelled in the application. Out of the pleadings of the parties the Trial Court framed 10 issues.
Thereafter the Trial Court after completing the legal formalities such as recording of the evidence of the, parties and hearing of the arguments of the counsel of the parties, dismissed the application vide judgment and decree dated 27.5.2000. Respondent No 3/defendant being aggrieved filed revision petition in the Court of Additional District Judge Taunsa Sharif who accepted the same vide judgment and decree, dated 17.9.2003. Judgment and decree passed by the Trial Court dated 27.5.2000 as also the judgment and decree dated 4.4.1988 were set aside and also granted relief to the extent that necessary ancillary matters would be dealt with by the learned Trial Court which might ensue this judgment. Appellants being aggrieved filed Const.
Petition No, 5390/ 2003 in the Lahore High Court, Multan Bench, Multan, which was dismissed vide judgment dated 7.2.2005. Petitioners/ appellants being aggrieved filed C.P. No, 472-L/2005 before this Court which was fixed on 16.5.2006 and leave was granted in the following terms:-- ' "Leave is granted to consider whether, in the facts and circumstances of this case the consent decree dated 4.4.1988 could be recalled on the ground that Collateral's right to pre-empt had been declared to be un-Islamic by this Court in Government of N.W.F.P. Through Secretary, Law
2. Learned counsel for the appellants submits that Trial Court was justified to dismiss the application of Respondent No, 3/defendant as Respondent No, 3/defendant had effected 'compromise voluntarily and the application for compromise was duly signed by both the parties and their counsel. The Trial Court after completing legal formalities decreed the suit vide judgment and decree dated.
4.4.1988. The Trial Court was justified to dismiss the application of Respondent No, 3/defendant with cogent reasons after proper application of mind in accordance with law but the revisional Court had erred in law to accept the revision petition without application of mind and the law laid down by the superior Courts. In support of his contentions, he has relied upon Abdul Harnid's case (PLD 1995 SC 649). He further .Urges that consent decree was passed in favour of the appellants, therefore, review petition/application under section 12(2), CPC was not maintainable against the consent decree. This aspect of the case was not considered by the revisional Court 'and the learned High Court in their judgments.
3. The learned counsel for respondent No, 3 submits that learned Trial Court had assumed jurisdiction wrongly. This Court had declared the Pre-emption Act, 1913 as unIslamic and the cut-off date was also fixed by this Court 31.7.1986. There was no decree in favour of appellants/plaintiffs till 31.7.1986 in terms of Malik Said Kamal Shah's case (PLD .1986 SC 360). The decree secured by appellants/ plaintiffs on 4.4.1988 from the Trial Court was without lawful authority and nullity in the eyes of law. The Trial Court was not justified to dismiss the application of Respondent No, 3/defendant without adverting to the facts and circumstances of the case in hand as no evidence was lead by the parties in terms of the law laid down in the Malik Said Kamal Shah's case (supra) read with section 35(2) of the Pre-emption Act, 1991 which was reversed by the revisional Court with cogent reasons after application of mind. The learned High Court had also re-examined the case under Constitutional jurisdiction and upheld the judgment of the revisional Court. In support of his contentions he has relied upon:-
(1) Mian Pir Muhammad's case (PLD 2007 SC 302).
(2) Umar Bakhsh's case (1993 SCMR 374).
(3) Muhammad Bibi's case (PLD 1973 Karachi 444).
4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties which are as follows:-
(a) Shariat Appellate Bench of this Court had declared the Pre-emption Act, 1913, repugnant to the Injunctions of Islam in Malik, Said Kamal Shah's case (supra) and cut off-date was fixed 31.7.1986 for enacting pre-emption law according to the dictum laid down in Malik Said Kamal Shah's case.
(b) Appellants filed suit for pre-emption against Respondent No, 3/defendant under the provisions of Punjab Pre-emption Act, 1913 which was decreed vide consent decree dated 4.4.1988 without recording evidence of the parties.
(c) Respondent No, 3/defendant filed an application for review of the decree dated 4.4.1988 on 30.10.1988 which was dismissed vide judgment and decree dated 27.5.2000 which was reversed by the revisional Court vide judgment and decree dated 17.9.2003 which was also upheld by the learned High Court in its Constitutional jurisdiction vide impugned judgment dated 7.2.2005.
5. It is settled principle of law that where no pre- emption decree had been passed by the. Trial Court or by any higher forum before 31.7.1981, no such decree could be passed thereafter by any Court or forum on the ground that matter was instituted or pending in the Court before 31.7.1986 as law laid down by this Court in Sardar Ali's case (PLD 1988 SC 287). In the case in hand, it is admitted fact that no decree was passed by any Court before 31.7.1986 therefore, any preemption decree passed after crucial date of 31.7.1986 regarding right of pre-emption which was declared repugnant to the Injunctions of Islam would be void and nullity in the eyes of law. This principle was not considered in its true perspective by the Trial Court: Therefore, revisional, Court was justified to reverse judgment of the Trial Court. The judgment of the revisional Court :s in consonance with the law: laid down by this Court in various pronouncements. See:-
(i) Malik Said Kamal Shah's case (PLD 1986 SC 360).
(ii) Sardar Ali's case (PLD 1988 SC 287). (id) Mian Pir Muhammad's case (PLD 2007 SC 302).
' Original Trial Court had erred in law to assume jurisdiction and passed consent decree after 31.7.1986, therefore, consent decree cannot be bestowed the jurisdiction by the Trial Court. The learned revisional Court had accepted revision petition and rightly observed that the circumstances of the case-law referred in Abdul Hamid's case (supra) are different from the facts of the case in hand. We have also re-examined all the judgments and facts of the said case and the case in hand and we are also of the view that the facts and question of law arose in the cited judgment is entirely different. It is also settled principle of law that even an appeal is not barred by.
Section 96(3) against the decree by consent, if the Court which passed the decree had no jurisdiction in the subject-matter of the dispute meaning thereby a consent decree under section 96(3) is synonymous with the lawful compromise under Order 23, rule 3, CPC. The decree passed by the Trial Court on compromise in absence of any mandatory requirements of talab is contrary to law hence void which was validly set aside by the revisional Court and affirmed by. The High Court. It is also settled principle of law where strict requirement of Order 23, rule 3 have not been satisfied appeal/revision against is not barred. See Muhammad Hussain Shah's case (1989 SCMR 1752). With the assistance of the learned counsel of the parties we have examined the case from all angles but we cannot find out any infirmity or illegality committed by the High Court while dismissing the Constitutional petition of the appellants vide impugned judgment. It is also settled principle of law that this Court generally does not interfere in the concurrent conclusions by the two Courts below while exercising power under Article 185(3) of the Constitution as law laid down by this Court in various pronouncements. See Abdul Rehman Bajwa's case (PLD 1981 SC 522) and Khuda Bakhsh's case (1974 SCMR 279). It is also settled principle of law that this Court cannot substitute its own finding in place of findings recorded by the Courts below while exercising power under Article 185(3) of the Constitution as law laid down by this Court in Syed Azmat Ali's case (PLD 1964 SC 260). Even otherwise appellants have failed to raise any substantial question of law of public importance. It is settled principle of law that Constitutional jurisdiction under Article 185(3) is discriminatory in nature keeping in view circumstances of facts of the case highlighted hereinabove we are not inclined to exercise our discretion in favour of the appellants as law laid down by this Court in Nawabzada Raunaq Ali's case (PLD 1973 SC 236).
6. In view of what has been discussed above, this appeal has no force and the same is dismissed with no order as to costs.