This Civil Revision calls in question the judgment /decree, dated the 4th of January, 1986, whereby the respondent s-vendees' appeal was accepted and the petitioner-plaintiff's suit for pre-emption was dismissed.
2. The sale was made in favour of the two real brothers Baghail and Bakhshi, of whom the latter was an owner in the estate whereas the former was not. He, however, sold away his share in the suit land to Bakhshi during the pendency of the suit and after the lapse of one year. The petitioner/ pre-emptor sought to pre-empt the sale asserting that he was an owner in the estate and that because of joining a stranger by Bakhshi-vendee with himself, he had lost the status by virtue of Sinker.
3. The trial Court decreed the petitioner/ pre-emptor's suit upholding the contention that joinder of Baghail, having no land in the estate, had reduced in status the other vendee also. Both were held hit by Sinker. In appeal, however, applying the rule laid down in Ali Muhammad and another v.
Muhammad Din and others AIR 1941 Lah. 444 the decision was reversed. It was thought that sale of his interest by Baghail in favour of Bakhshi removed disability in the latter's status and that he could successfully contest the petitioner's claim on the basis of enjoying equal status.
Consequently the petitioner's suit was dismissed and the same has been challenged in the present Revision.
4. Ch. Muzammil Khan for the petitioner contended that the two authorities relied upon by the lower appellate Court, in fact, did not apply inasmuch as those were pronounced before introduction of section 21-A in the Punjab Pre-emption Act. He stressed that this statutory provision of law did not permit a vendee to improve his lot after institution of the suit or beyond the prescribed period of one year of the sale. He maintained that the subsequent transfer by Baghail in favour of Bakhshi respondent in so far as it was effected beyond the period of one year of the sale and during pendency of the present suit, it was inconsequential. He further submitted that therule laid down in Fazal Elahi v. Dewan Ali and others 1984 SCMR 1404 holding that the Sinker did not apply to the .Province of the Punjab, was considered by this Court in a Division Bench judgment viz. Ghulam Rasool and others v. Muhammad Latif and others 1986 CLC 2830 and the view adopted was that Sinker continued to apply to pre-emption cases in the Province. Accordingly he submitted that the vendee5 were hit by Sinker and that the decision of the lower appellate Court was untenable.
5. On the other hand, Syed Sharif Hussain Bokhari for the respondent tried to canvass that the present suit was to be governed by the rule laid down in Government of N.W.F.P. Through Secretary Law Department v. Malik Said Kamal Shah PL D 1986 SC 360 which, among other things, provided that Shariat will apply to such cases especially when no decree had been passed before the crucial date of the 31st of July, 1986. He claimed that the decree obtained by the petitioner on the 12th of September, 1985, from the trial Court was set aside on the 4th of January, 1986, and, therefore, it would be deemed to be a case in which so far no decree was passed when the Malik Said Kamal Shah's case was decided.
6.Answer to question No.6 in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 seems to squarely apply to the case in hand. The petitioner was able to get the decree but it was set aside by a higher forum in the course of time. He can ask for its restoration on the basis of the old law. Shariat will not apply to it. There is no rider either in the Said Kamal's case or in the Sardar Ali's case stipulating that dismissal of the suit by a higher Court in appeal etc. Would tantamount to total effacement of the decree which may have been passed once in favour of the pre-emptor.
The factum of such a decree cannot be totally excluded from consideration and the same would make answer to question No.6 formulated in the Sardar Ali's case applicable to it. It protects the pre-emptor's right to ask for restoration of the decree which was A passed by the trial Court in his favour, but was set aside by a higher forum. The old law will apply. It was not shown if the petitioner' did not enjoy the qualification averred by them in the plaint and likewise, if Bakhshi could equate his status with that of the pre-emptor. He lost it by Sinker. In a way, I am bound by the judgment reported in Ghulam Rasool's case to which I was also a signatory sitting in D.B. It was considered that the rule of Sinker The trial Court had rightly decreed the applied to this Province suit.
7. Learned counsel for the respondents lastly submitted that the decree of the trial Court merged into that of the lower appellate Court and, therefore, an assumption shall be made that it never existed. This aspect has already been considered. The Supreme Court conceived of the situation and that is why it laid down clearly that reversal of such a decree by higher forum would not prejudice the case of a pre-emptor under the old law. There is no substance in the contention.
8.As a result, the Revision is accepted, the judgment and decree of the lower appellate Court impugned herein are set aside, and those of the trial Court are restored. If the petitioner/ pre- emptor had not so far deposited the pre-emption amount, owing to an order E of the lower appellate Court, he shall do it now by or before the 17th of November, 1988. In case he does not deposit it within this period, his suit shall stand dismissed with costs throughout. Otherwise the parties to bear their own costs.