KARAM ELAHEE CHAUHAN, J.-This judgment will dispose of nine appeals namely C. A. 56-P of 7'1i C.
A. 12-P of 72, C. A. 13-P of 72, C. A. 55-P of 72, C. A. 26-P of 74, C. A. 37-P of 74, C. A. 113-P of 78, C. A. 115- P of 77, C. A. 45-P of 75. And C. P. 61-P of 74.
2. Taking up Civil. Appeal No. 56-P of 72 (Umara Khan v. Mst. Rahmania), the facts are that one Ibrahim Gul sold 57 kanalv and 16 marlas of agricultural land described more fully in the relevant plaint, and situated in villaL,e Bazar, Tehsil Swabi. District Mardan, by Mutation No. 85 on 11-8-1965. to Umara Khan (defendant) (appellant herein) allegedly for a sum of Rs. 20,000.
3. Mst. Rahmania (pre-emptor) (plaintiff) (respondent herein) on 9-7-1966 filed a suit to pre-empt the aforesaid sale only to the extent of 18 kanals and 14 marlas bearing Khasra No. 121, on the ground of being already owner of land contiguous and adjustment to the pre-empted land.
4. The suit was decreed by the learned Civil Judge, Swabi on 2-5-1968.
5. The -vendee appellant filed an appeal but without any success as the same was dismissed by the First Appellate Court (learned Senior Civil Judge), Mardan, on 28-9-1970.
6. A second appeal of the vendee appellant being R. S. A. No. 516 of 1970, met the same fate and was dismissed by the High Court on 2-I1-1971. Here it may be mentioned that in the suit, the vendee appellant pleaded, that he had improved his status/title by getting in exchange an area of 19 marlas bearing Kbasra No. 82 which was quite contiguous and adjacent to the suit Khasra No. 121, and as such, his title and status having become equal to that of the pre-emptor, her suit should be dismissed. However, this plea wa3 not accepted by any of the Courts below, and it was held, that as the improve--ment in the title of the defendant took place after the institution and during the pendency of the suit, therefore, it could not be utilized for improve--ment of a title in this form, under subsection (2) of section 17 of the N.-W. F. P. Pre-emption Act, XIV of 1950 (hereinafter called the main Act or Act of 1950).
7. The vendee/defendant/appellant has come up in appeal to this Court, by special leave, which was granted on 16-12-1972, to examine, the effect of the above-mentioned improvement in his title, with reference to the law relevant on the subject.
8. Before proceeding further learned counsel referred to section 17 of Act XIV of 1950 which is headed as "Sale of property to pre-emptor or acquisition of right by original purchaser prior to suits," and reads as follows :- "Section 17. Sale of property to pre-emptor or acquisition of right by original purchaser prior to suits.-(1) No suit for pre-emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre-emption equal or superior to that of the plaintiff.
(2) Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of the pse- emptor plaintiff in such suit."
9. It may be pointed out, that subsection (2) of section 17, was added in the main Act the N.-W. F P.
Pre-emption (West Pakistan Amendment) Act VI of 1967 (hereinafter called the 1967 Act), published in the Gazette of West Pakistan, Extraordinary, dated 17-7-1967, and printed on page 240 of P. L. D.
1967 (West Pakistan Statutes). Subsection (2) of section 1 of the aforesaid 1967 Act stated, "It shall apply to all suits or appeals pending on, or instituted after, the commencement of this Act."
Examined in the light of the above-mentioned law, it will transpire, that subsection (2) was retros-- pective in character and as the sale in this case took place on 11-8-1965, and the suit was filed on 9-7-1966, but the improvement in the title of the vendee took place after the institution of the suit by means of a registered exchange deed on 16-8-1966, therefore, this transaction fell within the prohibited period mentioned above, and as such, could not be utilized by the vendee, to add a new qualification in his status to defeat the pre-emption suit.
10. When confronted with the above situation learned counsel for the appellant submitted that 196? ;1c,. Was repealed by the West Pakistan Repealing Ordinance XVIII of 1970 (hereinafter called the Repealing Ordinance) (sec Gazette of West Pakistan, Extraordinary, dated 19-G-1970, pages 1 3,57-1 "9=3l: (PLD 1970 West Pakistan Statutes 323). He argued that the effect of the aforesaid repeal was that subsection (2) of section 17, which was added by 1967 Act in the main Act, came to end, and was no longer operative in the field, and, therefore, the same could not be applied to the present litigation which was pending in year 1970, in the form of his first appeal, as will be evident from the various dates mentioned earlier above. In this way he submitted, that the judgments and decrees of the Courts below, which did not adopt this line of approach to the facts and the circumstances of the present case, were illegal and should be set aside.
11. We have attended to the plea raised but find no merit therein. No doubt section 2 of the Repealing Ordinance stated that "The enactment specified in the Schedule are hereby repealed," and Act of 1967 is one of the repealed enactments, but that is not the end of the matter, because of the provisions of section 3 of the Repealing Ordinance which is headed as "savings" and reads as follows :-- "Savings.-The repeal by this Ordinance of any law shall not affect---(a) the previous operation of any law so repealed or the validity, invalidity, effect or consequences of anything duly done or suffered thereunder, or
(b) any right, title, privilege, obligation or liability, acquired, accrued or incurred thereunder or any release or discharge already granted of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing ; or
(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed ; or
(d) any investigation, legal proceeding or remedy in respect of ally such right, title, privilege, obligation, liability, penalty, forfeiture or punish--ment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Ordinance had not been promulgated ; nor shall the repeal of any law by which the text or any law was amended by the express omission, insertion or substitution of any matter, affect the continuance of any such amend--ment unless a different intention was expressly stated in the law by which the amendment was made ; nor shall this Ordinance revive or restore anything not in force or existing at the time of its commencement, or affect any law in which any law hereby repealed has been applied, incorporated oz referred to, or affect any principle or rule of law, or established jurisdiction, form, or cause of pleading, practice, procedure or existing usage, custom privilege, restriction, exemption office or appointment notwithstanding that they respectively may have been in any manner armed, recognised or derived by, in or from any law hereby repealed."
A perusal of the above reproduced provisions will show that, to excuse repetition, it provided that "Nor shall the repeal of any law by which the text of any law was amended by the express omission, insertion . Or sub--stitution of any matter, affect the continuance of any such amendment unless a different intention was expressly stated in the law by which the amendment was made. "Now we may point out that in 1967 Act. Which added sub--section (2) in section 17 (of the main Act) there is "no different intention" to show that the aforesaid addition or amendment was of a transitory nature, c or was intended only for a limited period, or was to lapse under the provision of 1967 Act itself on any date, event or contingency. In that view of the .Law, the position which clearly comes out is, that the addition of subsection (2) made in section 17 of the main Act will remain and continues to be a sub--sisting part of that Act and repeal of the Amending Act VI of 1967--- will not affect its continuation in the main Act. This construction of section 3 of the Repealing Ordinance is quite in line with the modality or pattern of section 5 of the West Pakistan General Clauses Act VI of 1956, and section 6-A of the General Clauses Act X of 1897 (as inserted therein by the General Clauses (Amendment) Act XIX of 1936 (section 2). The main object of the Repealing Acts and Ordinances, it may be pointed out, is only to strike out the un--necessary enactments and excise dead matter from the Statute Book in order to lighten the burden of ever-increasing spate of ' legislation and to remove confusion from the public mind. They are not intended to make any change in the law ; their aim being legislative spring-cleaning. The above reproduced section 3 is, therefore, designed to save the operation, force and validity of the amendments already made in the principal enactments by the amending E enactments mentioned in the Schedule to the West Pakistan Repealing Ordinance, 1970.
12. The upshot of the above discussion is that this appeal has no merit and is hereby dismissed leaving the parties to bear their own costs.
13. The pleas raised and points agitated in Civil Appeals Nos. 12-P of 72, 13-P of 72, 55-P of 72, 37-P of 74, 45-P of 75, 115 of 77 and Civil Petition for Special Leave to Appeal No. 61-P of 74 are the same which have been negated in the main judgment rendered above in C. A. 56-P of 72, therefore, these cases also have no merit and are similarly dismissed with no order as to costs.
14. In Civil Appeal No. 26-P-74, it was argued that the plaintiff/respon--dent claimed a superior right of pre-emption on the basis of contiguity of his other land contained in Khasra No. 279, which was a shamilat land but which according to the learned counsel stood converted into a metalled road and, therefore, he could not be said to have retained a superior right of pre-emp--tion on the basis of that type of land. However, it may be pointed out that no such specific plea was raised by the appellant in his written statement and nor in his own deposition as D. W.
1. From the grounds of appeal filed by the appellant in the High Court, it appears that he conceded that earlier Khasra No. 279 was a shamilat deh, but it was later on that it was converted into a public thorough fare. The High Court while giving decision in favour of plaintiff/pre-emptor referred to its previous D. B.
Decision in Muhammad All v. Masha Jan and another (1) which was a case where conver--sion of such a land after decree of suit was held to create no bar on the part of the vendor. In these circumstances, when there is no factual basis to raise the plea aforesaid the same cannot be accepted. Though the facts of this case and the point involved herein is different from the other set of cases along with which it was heard, but as the point raised has no factual basis this appeal is also dismissed hereby with no order as to costs.
15. Taking up Civil Appeal No. 113-P of 78, the facts are that the original vendees in this case were two persons namely PLD 1961 Pesh. 29 Noor Khan and (2) Noor Jan sons of Amir Hamza who had jointly purchased the suit land in equal share. They transferred the said land to (a) Noor Khan and Muhammad Subhan sons of Baya Khan (one half) and to (b) Mir Zali Khan (one half) jointly. After the institution of suit-(which was instituted on 28-10-1967) Mir Zali Khan, who is appellant herein, got his status improved by purchasing on 6-12-1967, the share of Noor Khan and Muhammad Subhan sons of Baya Khan who as already above mentioned were joint purchasers with him to the extent of one half in the joint land under dispute. Mr. Basbir Ahmad Ansari, learned counsel for the appellant, argued, that the reasoning given and the principle laid down by us in the main judgment in C. A. 56-P of 72 above, will not apply to the facts and the circumstances-of his case on the factual plane, inasmuch as, the deal--(or as he called it a device)-of the kind involved herein cannot be considered as an "improvement" in the "status" of Zali Khan vendee/appellant, because, according to him, it was just a removal of an infirmity or a disability from which he suffered earlier by having joined a stranger along with him in the purchase of this property. The contention has no merit. The word "status" according to Websters New Dictionary (in law) means "the condition of a person by which nature of his legal personality is determined and, therefore, the nature of the legal relations to the state or to other persons into which he may enter " According to Chambers Twentieth Century Dictionary, "status", mean"state ; condition ; standing ; position ; rank ; importance in society or in any group." The word "Improve" according to the (same) Chambers Dictionary means, `to make better' and `improvement' means `the act off improving ; a change for the better, a thing changed or introduced in changing for the better, a better thingsubstituted for or following one not so good'. Reading section 17(2) in this way, when it talks of "any improvement in the status of a vendee', the word `any' highlights, that it covers all sorts of improvements which a vendee may make to better against or to equate his already low status with, the pre-emptor after the institution of a suit. We have no doubt, that to become a sole owner of land as compared to remaining just a joint owner along with another or others-(who were strangers)---is definitely an improvement in the status of a vendee. Another thing to be taken note of is, that this improvement, in the status of the vendee/appellant took place by means of his having purchased the joint share of his own `stranger-vendors' who were successors-in-interest of the original vendees. Learned counsel made same effort to show that the position of his client was not different from a case where for example, a plaintiff/pre-emptor joins a stranger with him in a suit and though apparently this is an infirmity and a hurdle in the maintainability and success of his suit, but if the stranger gets out of the suit/plaint the defect no longer exists. For, this, he wanted to refer to section 18 of the main Act and Muhammad Siddique and another v. Syed Zawar Hussain Abidi and others PLD 1976 SC 572. The analogy, with due respect to the learned counsel, is neither apt and nor the case cited has any relevancy to the problem in hand, and this is apart from the fact that the majority view in the reference cited on the construction of section 18, is against the contention raised by the appellant herein. The plea raised by the learned counsel, therefore. Looked at from whatever angle, does not take his case out from the principles laid down by us in the main judgment rendered in C.
A. 56-P of 72. The result is that this appeal is also dismissed with no order as to costs.