1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the vendee-defendant in a pre-emption suit, to examine, inter alia, the question whether the successful pre-emptor had not waived her superior right of pre-emption.
2. By a registered sale-deed executed on the 18th of October, 1977, 43 Kanals 8 Marlas of land in village Habib Tehsil Bahawalpur, was sold by one Anwar Ahmad in favour of the appellant for a sum of Rs.57,000. The respondent Mst. Ghulam Fatima claiming to be the sister of vendor asserted her superior right of pre-emption. The suit was contested by the appellant and the following issues were framed on the pleadings of the parties.-- "(1) Whether the suit property is situated in such a locality where the custom of pre-emption is not prevailing?
(2) Whether the plaintiff has waived her right of pre-emption?
(3) Whether the suit is within time?
(4) Whether the defendant-vendee had any improvements of the suit land? If not with what cost and to what effect?
(5) Whether the plaintiff has superior right of pre-emption against the defendant- vendee?
(6) Whether the ostensible sale price of Rs.57,000 were paid in good faith and was actually paid at the time of its sale? If so, what was the market value of the suit land at the time of its sale?
(7) Relief."
3. The trial Court held that the law of pre-emption governs the sale, the respondent-pre-emptor had not waived her right to pre-empt her suit was within time and she had a superior right of pre- emption. As regards the amount on which the sale was to be pre-empted and the costs of improvement, that matter was decided on the parties and the amount was determined at Rs.67,840. The suit was decreed by the trial Court. The High Court in first appeal affirmed these findings.
4. Ch. Khalilur Rehman, the learned counsel for the appellant, contended that in view of the decision of the Shariat Appellate Bench of the Supreme Court in Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 pre-emptors of the category of the respondent could claim no right of pre- emption, and the claim allowed in her favour was against the Injunctions of the Holy Quran and Sunnah and could not prevail. According to the learned counsel, a decision given by the Shariat Appellate Bench of the Supreme Court is declaratory in nature and like all declaratory statutes must fully apply to pending proceedings. He has referred to Maxwell's The Interpretation of Statutes 11th Edition, p. 213 wherein (1894) Q B 775 and (1907) 1 Ch. D 249 have been referred. Apart from these decision the learned counsel has also referred to the decisions of this Court in Iqbal Muhammad v. Muhammad Ilyas 1983 SCMR 438 and Feroze Khan v. A.I Paider 1987 SCMR 197.
5. The learned counsel has also contended that the decisions of this Court to the contrary appearing in Sher Muhammad v . Samundar Khan 1987 SCMR 108 and Piran Ditta v. Member, Revenue Board 1987 SCMR 406 to that extent require re-consideration.
6. On the question of waiver and limitation, the learned counsel has referred to the oral evidence on record with a view to demonstrate that the evidence brought on record proved the fact that possession had been delivered to the of vendee more than a year before the institution of the civil suit as borne out by the entries of the Roznamcha Waqiati and the payment of compensation to the occupant. It was also claimed that Mst. Ghulam Fatima had waived her right of pre-emption.
7. Mr. Allah Nawaz, Advocate, the learned counsel for the respondents, has supported the judgment of the two Courts and contended that the concurrent finding of fact recorded on the questions of waiver and limitation were not liable to interference in this Court. As regards the effect of the decision of the Shariat Appellate Bench of this Court, the learned counsel for the respondents has submitted that already two decisions on the subject have been given and they reflect the correct position of the law.
8. The very first assumption of the learned counsel that Shariat Appellate Bench of this Court, enjoys under Chapter 3-A of the Constitution, particularly Article 203-D a jurisdiction in the nature of enacting declaratory statute is to say the least, wholly erroneous. The power conferred on the Courts is of examining and deciding the question whether or not any law or provision of law is repugnant to the Injunctions of Islam. Where the Court finds that any law or provisions of law is repugnant to the Injunctions of Islam, it is required to set out in its decision the reasons for its holding that opinion and also deciding the extent to which such law or provision of law is so repugnant. It is clearly an adjudicatory power of applying the test of repugnancy, a new test of ultra vires. Further, a power has been conferred to specify the date on which the decision shall take effect. It is by reference to this power that it is provided that such law or provision of law shall to the extent to which it is held to be so repugnant cease, to have the effect on the date on which the decision of the Court takes effect.
9. Craies (Statute Law) defines declaratory Act in the following words:--- --- For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective." , Bennion (Statutory Interpretation) defines it as hereunder:-- "A declaratory Act or enactment declares what the law is on a particular point, often 'for the avoidance of doubt'. The subject---matter may be a rule either of common law or statute. Since a declaratory provision does not purport to change the law, it is presumed to have retrospective effect."
10. Crawford (Statutory Construction) defines it as hereunder:-- "General speaking, declaratory states can be divided into two classes: (1) those declaratory of the common law, and (2) those declaring the meaning of an existing statute. Obviously, those declaratory of the common law should be construed according to the common law. Those of the second class are to be construed as intended to lay down a rule for future cases, and to act retrospectively. They closely resemble interpretation clauses, and Applying the tests indicated above the jurisdiction enjoyed under Article 203-D cannot be said to be declaratory in the traditional sense.
11. The express limiting words of sub-clause (b) of clause (3) of Article 203-D of the Constitution leave no scope for a retrospective construction, or of giving them effect to matters adjudicated before that date.
12. The other submission of the learned counsel for the appellants in this connection was that Quranic verses, Sura Nisa verse 59, verse 105, verse 106 Sura Imran verse 24, all indicate that once the Quranic Injunctions have been located and identified, they have to be applied to all dispute pending in whatever forum they be. As the authority exercisable is traceable to the constitutional provisions just referred to, it is needless to go back to the verses for deciding this question of authority of Courts over pending proceedings in decisions given under Chapter 3-A of the Constitution.
13. The decisions given by this Court in the cases of Sher Muhammad 1987 SCMR 108 and Piran Ditta 1987 SCMR 406 dealt with these aspects of the contention, we do not consider that a re- consideration of those decisions is called for.
14. The property in dispute is situated in Bahawalpur where the Transfer of Property Act and the Registration Act apply with full force as held in The Custodian, Evacuee Property, West Pakistan, Lahore v. Rais Ghazi Muhammad PLD 1973 SC 537 and Barkat A.I v. The Custodian of Evacuee Property 1974 SCMR 69.
15. Section 54 while defining the sale provides that "such transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument".
16. Section 30 of the Pre-emption Act prescribing the limitation provides for possession under the sale.
17. If the sale could not be completed without registration--- possession obtained before registration of the sale could not be under the sale. Admittedly, the suit was within one year of the registration 'of the deed. Hence, it was within time, the possession obtained earlier to the sale being immaterial.
18. As regards the question of waiver, the trial Court decided it against the appellant observing as hereunder:----- "According to Rashid Ahmad the only reason that the plaintiff did not purchase the land was that her husband was not prepared to bear the expenses of the registration of the sale-deed. From his statement it cannot be said that the plaintiff had waived her right of pre-emption. He has categorically stated that it was the husband of the plaintiff and not the plaintiff herself who had refused to purchase the land in dispute. Even if the statement of Rashid Faiz D.W.6 is believed even in that case it cannot be made out that the plaintiff had waived her right of pre-emption The statement of the defendant that Rashid Faiz had enquired from the plaintiff and the plaintiff had given an assurance that she will not file any suit for pre-emption in case the land is purchased by the defendant cannot be given any value as Rashid Faiz has nowhere stated that the plaintiff had ever given any such assurance. Under the circumstances the case of the defendant that the plaintiff had waived her right of pre-emption is not proved in any way and hence this issue is hereby decided against the defendant."
19. The High Court approved this finding by affirming it as hereunder: --- "It means that the vendor did not contact the respondent who is the actual pre-emptor for the sale of the land in dispute. Muhammad Masud D.W.9, who is the appellant himself, has stated that through the intervention of Rashid, one of the relatives of the respondents the respondent had assured him that she would not institute a pre-emption suit in any case. In rebuttal Zahur Ahmad, the husband and special attorney of the respondent, has denied that the land in dispute was ever offered for sale to his wife."
20. A correct view has been taken of the evidence and a concurrent finding of fact recorded and it is not open to exception.