1. ' GUL ZARIN KIANI, J.---Plaintiff is the appellant. His plaint in the pre-emption suit was rejected under Order VII, rule 11, C.P.C. On 15-4-1987 by the trial Court. Appeal filed against the order rejecting the plaint was admitted to hearing on 13-7-1987.
2. ' By Mutation 385 sanctioned on 14-5-1980, land in suit situate in Sialkot District was purchased by Mohammad Bashir and others. Plaintiff as owner of the estate, claimed pre-emption in respect of the above sale and brought a civil suit to recover possession of the land in dispute. Vendees resisted the suit. In course of its trial, they submitted a miscellaneous petition for rejection of the plaint on the ground that the stated qualification was found repugnant to Islamic injunctions by the Shariat Appellate Bench of the Supreme Court in Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and consequently, it did not survive for enforcement by the Court after 31-7-1986 when the aforenoted judgment came in force. It was stated that with the above declaration of law, plaintiff was denuded of subsisting preference and was bereft of a cause of action to proceed with the suit. As against this, plaintiff applied for leave to amend the plaint to add ground of contiguity and a common passage. By a single order passed on 15-4-1987, the trial Court declined leave for amendment in the plaint and also rejected the plaint in the pre-emption suit. It was observed that "since the qualification/ground sought to be added in the suit that is not yet available to the pre-emptor, as no legislation has so far been made in this regard, therefore, the ground cannot be allowed to be added in the suit being irrelevant and inapplicable". As for the qualification of the ownership of land in the revenue estate already relied upon in the plaint, it was held that since it was no more enforceable, pre-emption suit could not proceed.
3. ' On behalf of the appellant, Khawaja Habibullah learned counsel strongly relied upon the case of Ahmad v. Abdul Aziz reported as PLD 1989 SC 771 and argued that though the qualification of ownership of estate to claim pre-emption by itself was repugnant to Islamic injunctions as held by the Supreme Court in case of Malik Said Kamal Shah yet ownership of the estate coupled with qualification of contiguity was a valid ground in Islamic Law of Pre-emption to claim preference.
4. Upon these premises, it was argued that application seeking amendment to the plaint to add contiguity was erroneously dismissed by the trial Court. Ch. Mushtaq Ahmad Khan learned counsel for the respondents refuted the arguments advanced on behalf of the appellant and submitted that of the enumerated statutory qualification in section 15 of the Punjab Pre-emption Act as amended by para. 25, Clause 3(d) of the Land Reforms Regulation, 1972 preferences conferred upon tenants, presumptive heirs, owners of agricultural land in patti, revenue estate were found un-Islamic by the Shariat Appellate Bench of the Supreme Court and ceased to exist with effect from 31-7-1986 when the judgment in the case of Malik Said Kamal Shah took effect. It was further submitted that in default of legislation by the appropriate legislature, contiguity as a qualification for claiming pre-emption in respect of sale of agricultural land could not be held to form part of the surviving statute to resurrect a wholly dead provision already found repugnant to Islamic injunctions by the Supreme Court.
5. 'In our opinion, contentions raised on behalf of the appellant are unsound and cannot be upheld. It is trite law that preference is essence of pre-emption and it must exist on the date of the sale, at the time of institution of the preemption suit and finally at the time of the decree by the trial Court.
6. On the date of sale, plaintiff claimed superior right of pre-emption merely as owner of the estate.
7. On the aforesaid date, contiguity was not one of the enumerated qualifications in section 15 of the Punjab Pre-emption Act to claim pre-emption in respect of the sale of agricultural land. With effect from 31-7-1986, stated qualification of ownership of land in the estate was held un-Islamic and since then ceased to be in force. In the majority judgment in case of Malik Said Kamal Shah as further elaborated in the case of Ahmad v. Abdul Aziz PLD 1989 SC 771, the whole of clause (c) of section 15 of Punjab Pre-emption Act in so far as it gave irrespective of contiguity and co- sharership right of preference on the basis of ownership in patti, estate, tenancy and inferior proprietorship was found repugnant to injunctions of Islam. Except for the specified portions of the Act found contrary to Islamic injunctions, its remaining provisions are intact. The Law of Pre- emption in Punjab is regulated by the Punjab Pre-emption Act 1913 and was not governed by Rules of Mohamedan Law of Pre-emption. Leaving aside the parts of the. Act excised, in the process of Islamization, section 6 of the Act which exists on the statute book till today provides that "a right of preemption shall exist in respect of agricultural land and village immovable property but every such right shall be subject to all the provisions and limitations contained in this Act". As said above, ownership of the estate simpliciter was struck down as un-Islamic with effect from 31-7-1986.
8. Contiguity/vicinage as a statutory qualification for pre-emption in respect of sale of agricultural land was not part of the enacted statute nor was it made so by the appropriate legislature. Unless the proper exercise in that behalf was made and law enacted, we are afraid, contiguity as a ground could not be added to the enumerated qualification of ownership of the land in patti or estate for pre-emption in respect of sale of agricultural land. In contrast to section 15 of the Act which deals with persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property, section 16 in clause sixthly, gave right of pre-emption to persons who owned immovable property contiguous to the property sold. Our own humble reading of the judgment of the Supreme Court in case of Malik Said Kamal Shah shows that it did not operate retrospectively to create an additional statutory qualification for pre-emption. Obvious effect of the judgment was that it applied prospectively. Therefore, a non-existent qualification at the time of sale, namely, contiguity could not be permitted to he brought in to save the pre-emptor and dislodge a bona fide vendee of the property. In this view, amendment to the plaint was rightly declined by the trial Court and since on the stated qualification suit could not proceed, plaint was correctly rejected by the trial Court. I have already expressed similar views in Ahmad Din v. Bashir Ahmad etc.--R.SA. 57- 1989/BWP. Decided on 4-11-1989 at Bahawalpur Bench and after hearing learned counsel for the parties do not feel persuaded to take a different view. Having regard to the foregoing discussion and the state of existing law, we find that appeal has no force. It is dismissed with no order as to its costs.