1. ' MUHAMMAD HALEEM, C. J.-This appeal, by leave, arises from the judgment of the Lahore High Court, Lahore, dated 15th of November, 1977, by which regular second Appeal No, 86 of 1976, was dismissed.
2. ' The facts which have given rise to this appeal are that agricultural land measuring 116 Kanals and 2 Marlas situate in village Latifal, Tehsil Chakwal, District Jhelum, was allotted to Kallo, a refugee from the occupied territories of Jammu and Kashmir State. He sold this land for Rs, 2,500 to Roshan Ali on 19th of March, 1963. Noor Khan, respondent No, 1, herein, filed a suit in the Court of Civil Judge, Chakwal, for possession through pre-emption which was dismissed on 29th of May, 1964, on the finding given on the preliminary issue that the suit land was not pre-emptible. The first appeal also failed on this ground, but in second appeal he succeeded as the case was remanded for fresh decision. It will be necessary here to reproduce the order of the High Court as the decision in the present appeal turns on its construction : "The question to be determined in this second appeal is as to whether the sale which took place on 9th March; 1963, was a sale within the meaning of section i5 of the Punjab Pre-emption Act. The two Courts below without recording any evidence in this case, following certain authorities of this Court, have held that the property was not pre-emptible. The question can only be decided after recording the necessary evidence as to whether at the time the sale took place, the allottee had paid the Rehabilitation Fee and the land has been permanently settled on him. In that case the dictum of their Lordships of the Supreme Court laid down in Saee Muhammad and another v. 7'alib Hussain Shah 1970 SCMR 641 will apply. If it is otherwise then the finding given by the two Courts below would be obviously correct."
3. ' A petition for leave to appeal was filed in the Supreme Court but that was dismissed as it was time-barred.
4. ' On remand, the trial Court framed the following two issues for decision :- "(1) Whether the suit land is not pre-emptible ? And,
(ii) Whether the plaintiff has got superior right of pre-emption?" The third issue related to the relief to be granted.
5. ' The trial Court, after recording, the evidence decreed the suit by judgment dated 11th of March, 1975 holding that the suit land was pre-emptible and that the respondent had a superior right of pre-emption.
6. ' In an appeal against the judgment and decree it was canvassed that the Rehabilitation Fee having been paid on 16th of January, 1974, the land had not permanently been settled on the vendor, Kallo, at the time of the sale, that is, on 9th of March, 1963. Therefore, the case was governed by the dictum of this Court in Saee Muhammad and another v. Talib Hussain Shah (1), and in terms of the order of remand the suit should have been dismissed. While on the other hand this argument was met on the ground that the suit land was pre-emptible even though it was "quasi-permanently" settled on the vendor as according to the dictum laid down by this Court in Sultan Muhammad v. Muhammad Siddiq (2) and that this dictum of the Supreme Court- was an enunciation of law and ought to have been followed by reason of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. The appellate Court took note of this contention and held that the High Court while remanding the case for decision did not consider this question nor was it considered by the concerned subordinate Courts in the course of the earlier proceedings.
7. Accordingly, the appellate Court came to the conclusion that the subsequent enunciation of law was binding and dismissed the appeal.
8. ' In the second appeal before the High Court, the High Court held that the order of remand only took note of the earlier decision of the Supreme Court as at that time the subsequent enunciation of law had not been pronounced, therefore, it was only the sale of land which was the subject-
(1) 1970 SCM R 641 (2) PLD 1973 SC 347 matter of temporary allotment which was not pre-emptible, which was not the case here. The High Court also took note of the fact that in accordance with the latest scheme promulgated on 23rd of December, 1961, all allotments were permanent and that too without charging any price for the land allotted subject to the condition that on being repatriated to their country, the allottees would pay the price of the land. And as the land was sold after the promulgation of the scheme it was governed by the later enunciation of law by this Court. Having held so, the High Court dismissed the appeal.
9. Leave to appeal was granted to consider whether the controversy should have been decided in terms of the remand order by the High Court which was final and binding on the parties, and, therefore, the suit should have been dismissed as permanent rights had not been settled on the vendor for failure to deposit the Rehabilitation Fee on or before the date of sale.
10. ' It was strenuously urged before us by Maulvi Sirajul Haq, counsel for the appellant, that as the order of remand had become final in terms of section 105 (2) of the Civil Procedure Code, the case should have been decided in terms of the remand order based, as it was, on the old law despite its supersession by the subsequent enunciation of law by this Court. In support of this contention, the learned counsel relied on Abdul Hakim and 2 others v. Saadullah Khan and 2 others (1). In that case a suit was filed for the possession of land against the trespassers. It was resisted on the grounds ; firstly, that the suit was barred under Order II, rule 2, C. P. C. ; and, secondly, that it was also barred by time as it was adversely held for more than 12 years before the institution of the suit. The trial Court framed the issues embracing the controversy and dismissed the suit on the finding given on the preliminary issue that it was barred under Order II, rule 2, C. P. C. On appeal, the decision was reversed and the case was remanded for a fresh decision on other issues. This order was not challenged and became final. On remand, the trial Court decreed the suit holding the plaintiffs to be the owners. In an appeal against this judgment the defendants re-agitated the question that the suit was barred under Order II, rule 2, C. P. C. But the appellate Court did not permit the defendants to raise this question in view of the finality attached to the remand order, and confirmed the decree of the trial Court while dismissing the appeal. The second appeal was dismissed in limine. Against that order a petition was filed in this Court and leave to appeal was granted to consider whether the bar of Order II, rule 2, C. P. C. Stood in the way of the second suit.
11. Although it was held that the remand order not having been challenged became final and thereafter it was not open to the defendants to reagitate the bar of Order II, rule 2, C. P. C., nonetheless on a review of the facts, this Court held that the plea relating to the bar was wholly misconceived. This case is distinguishable on the ground that there was no change of law to impair the finality to be attached to an appealable order against which no appeal had been filed, and, therefore, it will have no application.
12. ' The next decision of the Indian Supreme Court reported as Nainsingh v. Koonwarjee (2), also affirms the principle laid down in section 105 (2) of the Civil Procedure Code, but in no way advances the contention of the appellant. Here too the remand order was not challenged but in the second round of litigation, the High Court dismissed the suit on the ground that the plaintiffs lost their rights in the which was also the question
(1) PLD 1970 SC 63 (2) AIR 1970 SC 997 before the appellate Court which had remanded the case for decision. No appeal was filed against that order. This finding of the High Court was sought to be supported on the ground that it was an exercise of inherent power, but the Supreme Court of India rejected it while relying on section 105(2), C. P. C. The learned counsel was fair to admit that he had not come across any decision which laid down that if law was changed by the Supreme Court after the remand order and during the pendency of the proceedings still the remand order was sacrosanct. Article 189 of the Constitution of Islamic Republic of Pakistan in clear terms states that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. As the proceedings were pending and on the same question the law was re-enunciated which in terms widened the scope and nature of rights of the allottees held in the course of settlement under the Rehabilitation and Settlement laws it was binding on the Courts. By reason of this constitutional provision, the remand order based, as it was, on the earlier view of the Supreme Court had per force subrogated to the subsequent re- enunciation of law by this Court. The reliance on section 105 (2) of the C. P. C. Could not operate as a bar against an overriding constitutional provision giving effect to a re-enunciation of law by this Court. It is not a case where the controversy had been finally disposed of in accordance with the law prevailing at that time and the decision in the case was a past and closed transaction in which case the subsequent decision could not have had the effect to reopen the case by reason of this Article of the Constitution. (See Income-Tax Officer, Central Circle II Karachi and another v. Cement Agencies Ltd. (1). However, on another ground the High Court was also justified in dismissing the appeal and that was para. 4 (3) of the Scheme for Allotment of Evacuee Agricultural Land to Jammu and Kashmir Displaced Persons. It reads :- "The allottee shall have the right of alienation of land prior to his repatriation to the occupied part of Jammu and Kashmir State and this shall be subject to the liability laid down in sub-para. (i) above."
13. This liability relates to payment of price of the land to the Central Government and not to the Rehabilitation Fee. There is also no doubt as to the allotment being permanent under this Scheme by reason of para. 3 (ii). A ground was raised in the memorandum of appeal which was noticed by the High Court, but in the earlier proceedings it went unnoticed, otherwise the High Court would not have remanded the case for decision afresh. This Scheme cannot be overlooked as the question essentially is as to whether the land is pre-emptible or not by reason of sale about which the contention raised is that the sale is inchoate and did not answer to the description laid down in sections 4 and 6 of the Punjab Pre-emption Act, 1913, so as to give rise to a cause of action to pre- empt the sale.
14. ' For the foregoing reasons, the appeal is without any substance and is dismissed with costs.
(1) PLD 1969 SC 322