Muhammad Aslam son of Sardar, revision petitioner/plaintiff now represented by his legal heirs Petitioners No. 1 to 8 filed a civil suit for possession through pre-emption in October, 1977 against vendees/defendants claiming his superior right qua the vendees as collateral of vendor and also challenged the sale price Rs. 47,000/-shown and alleged that actually Rs. 2600/- exchanged hand, however, in order to defeat attack of pre-emption suit fictitious and enhanced sale price had been shown in the said deed. The vendees contested the suit by filing written statement. The trial Court framed necessary issues and at the stage of evidence, compromise was affected between the parties and on the consent of vendees/defendants, the suit was decreed on 11.02.1979 in favour of the revision petitioner. However, two of the vendees Javaid Iqbal and Khalid Mehmood being minors challenged the consent decree through a suit for declaration filed on 28.03.1984 which was contested by the revision petitioner/consent decree holder, however, that suit was decreed on 05.04.1984. Resultantly, consent decree dated 11.02.1979 in the pre-emption suit was set at naught.
The judgment and decree of the learned trial Court was challenged before the appellate Court, however, the appeal was dismissed by the then District Judge, Sialkot vide judgment dated 30.04.1985 and the revision petitioner filed Civil Revision No. 1614 of 1985 before this Court which was disposed of vide order dated 31.41.2001 being not pressed with the outcome that the pre-emption suit was remanded and it was held that it be deemed to be pending in the Court of Senior Civil Judge, Sialkot. During the post-trial proceedings, the trial Court through judgment dated 28.04.2005 decreed the suit in favour of the petitioner who filed civil Appeal No. 77 of 2005 and it was decided against him by the appellate Court through judgment dated 06.12.2005 while deciding Issue No. 4 that the petitioner could not get success as he participated in the sale transaction, thus, estopped by his conduct. Against said judgment, the present civil revision has been instituted in this Court on 28.01.2006.
2. During pendency of instant revision petition some new facts happened as is evident from the record that on 25.08.2014, it was intimated that the petitioner/plaintiff had died and it was contended by the respondents that since the right of pre-emption was not inheritable, therefore, revision petition rendered no more to proceed, so, liable to be dismissed.
3. The learned counsel for the petitioner requested for adjournment to assist this Court, in the meanwhile, though at late stage, the respondent filed CM. No. 1-C of 2017 under Section 151 read with Order VII Rule 11 of The Code of Civil Procedure, 1908 and Section 34(2) of the Punjab Pre- emption Act, 1991 contending that since no judgment and decree executed in favour of the petitioner prior to out of date i.e. '1st August, 1986 and under the Pre-emption Act, 1991, the revision petition deserved to be dismissed.
4. Mr. Akhtar Ali Rana, learned counsel for the petitioner states that the right of pre-emption is inheritable if the pre-emptor died when the proceedings are before the learned trial Court or first appellate Court even during the pendency of this civil revision. Further states that originally decree was passed in favour of preemptor on 11.02.1979 and by the order of this Court dated 31.01.2001 passed in Civil Revision No. 1614 of 1985 the learned trial Court was directed to proceed with the suit from the stage where it was at the time of recording of compromise and decided the same in accordance with law. He adds that at the time of passing the said order the new pre-emption law of 1991 was already in the field. While continuing with his arguments learned counsel for the petitioner further states that the learned trial Court in the light of afore-mentioned order of this Court passed in supra civil revision proceeded and decreed the suit in favour of the petitioner's predecessor-in-interest on 28.04.2005. However, the appeal filed there against was allowed by the learned appellate Court through impugned judgment dated 06.12.2005 only on sole ground that the pre-emptor was estopped by his own conduct as he participated in the sale transaction and these findings were recorded on account of misreading and non-reading of evidence and as such cannot remain in the field and is liable to be set aside and seeks that the civil revision may be allowed.
On the other hand, Mr. A.K. Dogar, learned Senior Advocate for respondents while controverting the submissions made by counsel for the petitioner contends that Section 34 of The Punjab Pre- emption Act, 1991 provided a cut-off date i.e. 01.08.1986 and if any decree existed in favour of the petitioner in the repealing section it is provided to remain effective, however, he contends that no such decree existed in favour of the pre-emptor-petitioner on or before the cut-off date and the decree earlier passed on 11.02.1979 was finally led to rest when Civil Revision No. 1614 of 1985 was withdrawn by the deceased preemptor, thus, it attained finality.
He further contends that the decree which is finally non-existence as stated above, the present civil revision bound to be rejected under Order WI Rule 11 of The Code being hit by the operation of law.
He placed reliance on "Ali Muhammad and another v. Muhammad Tufail and 3 others" (2002 CLC 1900).
Learned counsel next contends that law of pre-emption is not inheritable. It is personal right and comes to an end with the death of pre-emptor. He placed reliance on "Malik Ghulam Nabi and others v. Member III, Board of Revenue and 5 others" (PLD 1990 SC 1043). Further contends that the deceased pre-emptor throughout the proceedings before the learned trial Court did not appear personally and got recorded his version through attorney whereas it was held in "Abdul Qayyum v.
Muhammad Sadiq" (2007 SCM R 957) that personal knowledge of a litigant in determining the facts, his attendance in the proceedings as witness is essential and in case it is not done so, the presumption under the provisions of Article 29 of Qanun-e-Shahadat Order, 1984, would be against him.
While concluding his argument learned counsel for the respondents states that by operation of law as well as on the basis of evidence and other attending circumstances this civil revision deserves to be dismissed and requests for the same.
5. With the aforementioned background, facts and after hearing arguments addressed by learned counsel for the parties I have also gone through the record.
6. It is evident that the deceased pre-emptor challenged the judgment and decree rendered by the learned trial Court in a declaratory suit filed on 28.03.1979 which was decreed on 05.04.1984. The appeal filed was dismissed by the learned appellate Court/District Judge, Sialkot vide judgment dated 30.04.1985. The deceased preemptor, predecessor-in-interest of present revision petitioners filed civil revision bearing (C.R. No. 1614 of 1985) which was decided by this Court vide order dated 31.01.2001. The relevant portion of said order is necessary to be reproduced hereunder: "In view of the statement made by the learned counsel for the petitioners and circumstances noted above, this civil revision is disposed of as not pressed with the observation that suit filed by the petitioners for possession of suit land sold to the respondent vide a registered sale-deed dated 6.2.77 by pre- emption shall be deemed to be pending in the Court of Senior Civil Judge, Sialkot where the parties present shall appear on 8.2.2001. The learned Senior Civil Judge shall then after summoning Respondent No. 1 proceed with the suit from the stage where it was at the time of recording of compromise and decide the same in accordance with law. No order as to costs".
It is pertinent to mention here that the law of pre-emption was changed when The Punjab Pre- emption Act, 1991, was promulgated. Section 34 is relevant and important for the purposes of deciding the case in hand which is reproduced hereunder for ready reference: "34. Repeal of Act I of 1913.--(1) The Punjab Pre-emption Act, 1913 (I of 1913) is hereby repealed. (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 contained in accordance with the provisions thereof".
7. Careful perusal of Section-ibid indicates that it gives a cutoff date i.e. 01.08.1986 if any decree or judgment is passed then this repealing Section of the new pre-emption law allowed the case to proceed further. If it is not so then the pre-emption suit stands abated.
It is an admitted fact that Muhammad Aslam-plaintiff/pre-emptor died in 2014.
Now it was also contended that as to whether the right of pre-emption was inheritable and it devolved upon the legal-heirs of the pre-emptor. In the circumstances there are two questions which need answers and adjudication by this Court.
(a) Whether there exists no decree before the cut-off date as provided under Section 34 of The Pre-emption Act, 1991; and
(b) Whether under the law and principle of Islam right of pre-emption is inheritable or not?
8. It is evident that the declaratory suit filed by the two minors vendees-defendants, namely Javed Iqbal and Khalid Mehmood, on 28.03.1979 was decided in their favour by the learned trial Court on 05.04.1984 whereby consent decree dated 11.02.1979 was set aside. The revision petitioner/pre- emptor filed an appeal against the said judgment which was decided by the then learned District Judge, Sialkot and the appeal was dismissed on 30.04.1985 and as mentioned above, against the said judgment Civil Revision No. 1614 of 1985 was filed which was decided by this Court on 31.01.2001 as per observations recorded above.
9. One important question was discussed before this Court by learned counsel for the parties that when the order was passed on 31.01.2001 in C.R. No. 1614 of 1985 new law of pre-emption i.e. The Punjab Pre-emption Act 1991, was in the field and also its Section 34. However, it is apparent that none of the parties raised this question/objection or sought determination of jurisdiction of the Court under the said repealed Act of 1913 whereas under Section 34 of The Pre-emption Act, 1991, it provided cut-off date i.e. 01.08.1986 that if any decree passed on or before the cut-off date, further proceedings could be carried out irrespective of repeal of Pre-emption Act, 1913, under the said law. It came to my mind that in the light of order dated 31.01.2001 passed by this Court the proceedings were allowed to start, by the learned trial Court from the stage when the compromise affected which resulted into judgment dated 11.02.1979 which had been set at naught as mentioned above, it gives an impression that by virtue of that order the proceedings were allowed to be continued in the pre-emption suit under the Repealed Act but I am of the firmed view that the correct interpretation is that specific provision of law is to be prevailed and not the order even passed by this Court. If there is any contradiction between these two aspects, then definitely provisions of law shall prevail.
10.In clear terms after setting aside of consent decree dated 11.02.1979 on the cut-off date i.e. 01.08.1986, there was no decree in favour of the revision petitioner to extend any benefit of saving clause/portion of Section 34 of The Pre-emption Act, 1991, and resultantly the suit has to be abated.
However, in the light of order dated 31.01.2001 passed by this Court in Civil Revision No. 1614 of 1985 the proceedings continued with the learned trial Court which resulted into judgment dated 28.04.2005 but I am afraid it was not of any benefit to the revision petitioner, as same is hit under Section 34 of The Act, 1991, whereas the appeal filed against the said judgment had already been dismissed by the learned appellate Court through judgment dated 06.12.2005, so, while following the doctrine of prevailing of specific provision of law I firmly hold and decide that as there was no decree on cut-off date i.e. 01.08.1986, further proceedings conducted by the Courts below were not justified as a result thereof instant civil revision stands abated by the operation of law.
One important aspect must not escape the eye. The deceased pre-emptor brought Civil Revision No. 1614 of 1985 against the judgments passed in the declaratory suit by the Courts below dated 05.04.1984 and 30.04.1985 respectively, opted himself not to press, thus, admitted the existence of declaratory decree whereby the consent decree dated 11.02.1979 was set aside.
11.The other argument that the pre-emptor himself did not appear in the witness-box and got recorded his version through his attorney which damaged his case is concerned, this Court does not feel inclined to comment upon it merely on the ground that the suit/C.R. became abated on account of operation of law.
12. So far as the question with regard to inheritance of pre-emption decree is concerned, as there was no decree before the cut-off date, so this question needs not to be discussed.
In view of the above discussion, instant Civil Revision has no merits and is hereby dismissed.
13. The costs shall follow the event.