' M. SOHAIL IQBAL BHATTI, J.---Through this civil revision, the petitioner has challenged the judgment and decree, passed by learned Additional District Judge, Attock dated 3-5-2005 and judgment and decree, dated 20-4-2004 passed by learned Civil Judge 1st Class, Jand, District Attock, whereby both the courts below dismissed the suit for possession through pre-emption in respect of land described in the head note of the plaint.
2. The brief facts of the case are that suit land measuring 33 Kanals 8 Marla was owned by one Gul Muhammad son of Fateh Muhammad who sold the suit land to the present respondent/defendants. It was stated in the plaint that the suit land was actually sold for Rs:40,000 but the defendants presently respondents in order to defeat right of pre-emption got written sale price as Rs:80,000. It is further stated that the petitioner/ plaintiff is joint owner of the said Khewat, so the petitioner/plaintiff has superior right of pre-emption qua the vendee respondents/defendants over the suit land. This plaint was filed on 11-1-1989 resisted through filing of written statement dated 13-11-1990, issues were framed in the following manner;
(1) Whether the plaintiff has no cause of action to bring the suit? OPD
(2) Whether the suit is not proceed able due to preliminary objection No,2 of written statement?
OPD
(3) Whether the plaintiff is entitled to get the incidental charges, if so, what amount? OPD
(4) Whether the defendant has effected improvements and incurred expenditure, if so, what amount? OPD
(5) Whether the plaintiff is stopped by his words and conduct to bring the suit? OPD
(6) Whether the suit is undervalued for the purposes of court-fee and jurisdiction? OPD
(7) Whether the plaintiff correctly performed talbs? OPP
(8) Whether the plaintiff has superior right of pre-emption against the vendee defendant? OPP
(9) Whether the ostensible sale amount of Rs:80,000 was fixed in good faith and was actually paid?
OPD
(10) If the issue No,9 is not proved, what was the market value of the suit land? OP parties.
(11) Relief.
3. In order to prove the issues, the plaintiff examined Aulia Khan as P.W.1, Sher Khan as P.W.2 and Fateh Muhammad himself appeared as P.W.3. In documentary evidence, the plaintiff produced revenue record as Exh./P-1, copy of registered sale deed Ex/P-2 and copy of revenue record as marked P-A.
4. On the other side, Muhammad Hussain appeared as DW/1, Ghulam Rabbani DW/2 and Ghulam Hussain appeared as DW/3. In defendants documentary evidence only Aks Shajra Kishtwar as Exh./D-1 and revenue record as Exh./D-2 was produced.
5. It is worth notable that this is a third round of litigation, firstly when the suit was filed on 11-1-1989; it was dismissed by the learned trial court on 7-2-1989. The revision petitioner/plaintiff preferred the appeal before the learned District Judge, Attock which was dismissed on 27-4-1989. The present petitioner/plaintiff filed a revision petition before this Court which succeeded and the case was remanded back to the trial court for decision afresh vide order dated 28-1-1990. After the remand of the suit, the Civil Judge/trial Court again dismissed the suit on 30-5-1992. The appeal filed by the present petitioner/plaintiff also met with the same fate on 24-6-1992. However, the petitioner/plaintiff filed a civil revision which was allowed on 23-10-2001 and the case was remanded to the trial court for fresh decision. After the remand, the trial court recorded the evidence and dismissed the suit on merits on 20-4-2004 and the appeal filed by the present petitioner/plaintiff was also dismissed on 3-5-2005, hence this revision petition.
6. The learned counsel for the petitioner while advancing his arguments contended that the concurrent findings of facts by both the courts below are against the facts and law. He further argued that learned Additional District Judge misinterpreted the provisions of section 35 of the Punjab Pre-emption Act, 1991 while holding that the suit is not competent because the petitioner did not file any application for revival of suit.
7. The counsel of the petitioner further contended that as this Court has remanded case so there was no need of filing of application. He further pressed the argument that the doctrine of estoppel was not helpful , to the respondent and if a person has a right of pre-emption and the vendor sells the property to another although in the presence of the pre-emptor, it cannot be said that the pre- emptor has waived off his right of pre-emption.
8. On the other hand, counsel for the respondents vehemently opposed the arguments and defended the impugned judgments and decrees on the grounds that initially the suit and the appeal was dismissed during the period mentioned in section 35(2) of Punjab Preemption Act, 1991 and no application for revival under section 35 of the Act ibid was filed, hence the provisions of section 35 are applicable to the present suit. He further argued that the suit was filed on 11-1-1989 and plea of Zaroorat and avoidance of Zarrar was not mentioned in the plaint as contemplated in Section 6(2) of Punjab Pre-emption Act, 1991.
9. I have considered the argument and perused the record, the Section 35(2) of Punjab Pre- emption Act, 1991 reads as under:- "Section 35(1)---Notwithstanding anything in the 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 this 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 this provision 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 if the pre-emptor established that he had made "Talb-i-Ishhad" in the presence of two truthful witnesses".
10. The bare perusal of section 35 of Punjab Pre-emption Act, 1991 clearly reveals that the suit dismissed between the period mentioned in section 35 i,e, 1st day of August, 1986 and the 28th March, 1990 both day inclusive can only be revived through the procedure mentioned in the above said Section, but in the present case not only the suit was, dismissed on 7-2-1989 and the appeal was also dismissed on 27-4-1989. A It can be said that the appeal is the continuation of the suit but the same principles could not be applied to the revisions. The suit and the appeal both have been dismissed before the target date mentioned in the above said Section, so non-filing of application under Section 35 is fatal to the suit of the plaintiff. However, as the suit was remanded back to the trial court vide judgment dated 23-10-2001 by this Court with the observations that the trial court shall consider all aspects of the case, the question of limitation, talbs and as to whether an application was made under section 35(1) of Punjab Pre-emption Act, 1991 and its effect.
11. I am of the view that the application has not been filed by the petitioner within 60 days as contemplated under section 35(1) of Punjab Pre-emption Act, 1991 which amounts to violate the statutory provision of law.
12. Now, I would discuss the question of Zaroorat and avoidance of Zarrar. Although honourable Supreme Court in a judgment reported in PLD 1994 SC page 1, has declared the provisions of section 6(2) of the Punjab preemption Act repugnant to the injunctions of Islam but it was the part of the statute till 31-12-1993, so a plaint filed prior to the 31-12-1993 must have mentioned the factum of avoidance of Zarrar and Zaroorat. But it was incumbent upon the petitioner to incorporate Zaroorat or avoidance of Zarrar in his plaint and should have proved it till the time section 6(2) of the Act, 1991 had been declared repugnant to the injunctions of Islam.
13. All the cases which were filed between the Interregnum period i,e, 1-8-1986 to 28-3-1990 the plaintiffs were under the statutory obligation to specifically plead Zaroorat and to avoid Zarar. It is true that provisions of Section 6(2) were declared repugnant to the Injunctions of Islam in PLD 1994 Supreme Court 1. But this judgment would not have the retrospective effect; the perusal of the Plaint discloses that the petitioner has not pleaded Zaroorat or to avoid Zarar (suit was filed on 11-1- 89) and at that point of time section 6(2) was an effective part of the Statute.
14. The judgment declaring the provision of law i,e, section 6(2) of the Act, 1991, repugnant to the injunction of Islam have no retrospective effect and did not declare the same as void from the date of promulgation of law. In other words, the avoidance of Zarrar and Zaroorat were to be mandatorily incorporated in the Plaint before 31-12-1993 and the plaint filed by the petitioner lacks this mandatory statutory requirements and thus comes within the mischief of section 6(2) of Punjab Pre-emption Act, 1991.
15. I am fortified in my view by a judgment reported in 2013 SCMR page 225 titled as Muhammad Farooq v. Muhammad Hussain, 2005 YLR page 2347 titled as Muhammad Aslam v. Jameel Ahmad, 2003 YLR page 2985 titled as Muhammad Mushtaq Ahmad v. Ali Muhammad, PLD 2001 Lah. 194 titled as Chaudhry Abdul Majeed v. Anayat Ali, 2000 MLD 616 tilted as Sardar Ali v. Muhammad Siddique, 2000 MLD page 616 titled as Sardar Khan v. Muhammad Siddique.
16. As far the question of performance of Talbs, the depositions of P.Ws. Recorded by the trial court are not only contradictory but are also not confidence inspiring. The petitioner/plaintiff himself mentioned in the evidence that he was present at the time of sale and execution of sale deed but he did not perform the jumping demand at the same time which part is sufficient to deny the claim of the petitioner/plaintiff and also doctrine of estoppel.
17. The deposition of Aulia Khan is also in contradiction to the deposition made by the petitioner/plaintiff. The petitioner has failed to prove Talb-i-Ishhad as it is the case of the petitioner that when Aulia Khan informed him about the same, he went to Ghulam Hussain along with Aulia Khan and Sher Khan and asked him to take the sale price and transfer back the suit land, but interestingly Ghulam Hussain is not the vendee but his son Ghulam Hassan and one Khizar Hayat are the vendees to whom the petitioner never approached and offered any sale price, hence the petitioner has failed to perform Talb-i-Ishhad. The counsel of the petitioner/plaintiff has failed to point out any mis-reading or non-reading of evidence or any material irregularity in the impugned judgments and decrees.
18. In view of the above discussion, I am of the view that this revision petition fails and is hereby dismissed.