{{PAGE CUT}} ' This appeal against the appellate judgment and decree of the earned Additional District Judge, Sheikhupura, dated the 7th 'ebruary, 1982, affirming the dismissal of the appellant's suit for ossession by pre-emption of 501 kanals 19 marlas of the land in lispute situate in the area of village Bahar, tehsil and district ',heikhupura, recorded by the learned Civil Judge,-. Sheikhupura, on he 8th July, 1980, arises out of the following circumstances. The espondents purchased the land in question from Shamsher Bahadur, :han, Mst.Saleh Bibi Khatun and Tahira Khatun for a consideration f Rs,1,08,775 and mutation No, 140 (copy Exh.P.1) touching the ale was attested on the 30th December, 1974. Khurshid Ahmad, ppellant, instituted suit on the 11th December, 1975, to pre- empt he sale. He claimed superiority of pre-emptive right on the basis of is ownership of the estate where the land in suit lay. According to im the respondents were strangers.
2. The respondents contested the suit, denied the preferential Ire-emptive right of the appellant and raised certain other objections rhich they could not substantiate and which are not relevant for the lurpose of disposal of this appeal.
3. In order to establish his ownership of agricultural land lying Bahar estate the appellant wanted to produce before the learned rial Court a certified copy of jamabandi of the said piece of land ,ut he was not permitted to do so bump he had not entered it in he list of reliance which he had pitesil on tho record at the time of fling of the suit.
4. Before the evidgnos et the parties was received the appellant loved application undff Spier XIII, rule 2 and section 151 of the :ode of Civil Proceduo@ for seeking permission to produce the certified copy of the jamabandi. He submitted that his counsel, Chaudhry Muhammad Islam, Advocate, had died after institution of the suit and due to inadvertence he had not entered the copy of jamabandi in the list of reliance. The respondent opposed the application and the learned trial Court, vide its order of the 8th May, 1979, declined to allow the document to be produced in evidence. The appellant's revision petition assailing the legality of the aforesaid order was dismissed by the learned Additional District Judge, Sheikhupura, on the 30th September, 1985. Consequently the appellant could not adduce the copy of the jamabandi in evidence to prove his ownership of the state and establish his superior pre-emptive right. The suit in the Circumstances was dismissed.
5. The appellant applied to the learned appellate Court below under Order XLI, rule 27 of the Code for permission to produce the above-referred copy of the jamabandi in additional evidence.
However, the learned Court was not disposed to accept his request. He repeated the application before this Court for seeking permission to bring on the record the said document. Though the respondents opposed the move this Court, by its order of the 20th October, 1986, permitted the appellant to produce the document in evidence. The respondents were given choice of producing evidence in rebuttal. It was observed by this Court that the authenticity and genuineness of the certified copy of the jamabandi, which was part, of the record of rights duly prepared according to law by the Government officials and which the appellant wanted to produce to establish his superior right of pre-emption, was beyond dispute, that it was not understandable why the learned trial and the appellate Courts below had declined to allow its reception in evidence and further that the lapse on the part of the appellant to file the list of reliance in respect of document was not so serious as to disentitle him to tender it in evidence help prove his superiority of pre-emptive right on which the fate of suit depended. It was felt that a grave injustice had been done to the appellant by the learned Courts' refusal to accept it in evidence and its production was considered to be essential to enable the Court to pronounce judgment. The respondents' attempt to challenge the correctness of the order of this Court before the Supreme Court of Pakistan failed; their petition for leave to appeal (No, 961 of 1986) was dismissed on the 20th January, 1987.
6. The appellant produced in evidence before this Court the copy of the jamabandi which was exhibited as A/1. The respondents did not adduce any evidence in rebuttal. The learned counsel for the respondents conceded that on the basis of the entries of Exh.A/1 the appellant's ownership of the estate and superiority of his preemptive right was established beyond doubt. However, the learned counsel canvassed for non-suiting of the appellant on the basis 'of the judgment of the Shariat Appellate Bench reported as Government of N.-W.F.P. v. Malik Said Kemal Shah PLD 1986 Supreme Court 360 wherein qualification of ownership of estate for claiming superiority of pre- emptive right was held to be repugnant to Islam. Nevertheless, the judgment of this Court delivered in Abdul Ghaffar Khan v. Saghir Ahmad Aslam PLD 1587 Lah. 358, laying down that the appellant's suit instituted before the 31st July, 1986, would be decided by the laws declared by the Shariat Appellate Bench judgment to be repugnant to Islam, is sufficient to disarm the learned counsel of his argument.
7. In view of the above this appeal is accepted, the judgment and decrees of the learned trial and the first appellate Courts are set aside and decree for possession of the land in dispute is passed in favour of the appellant and against the respondents and it is directed that the appellant shall deposit in the trial Court the purchase money of Rs,1,08,775 on or before the 17th March, 1988, and on such payment being made the respondents shall deliver possession of the land to the appellant whose title thereto shall be deemed to have accrued from the date of such payment, but if the aforesaid amount is not so paid the appellant's suit shall be dismissed with costs. In the circumstances of the case the parties are left to bear their own costs throughout.