1. ' MUHAMMAD AFZAL ZULLAH, C J.---Leave to appeal has been sought by the successors-in-interest of a plaintiff in a suit for pre-emption; against the acceptance by the High Court, of respondents'
2. Regular Second Appeal. The suit of the plaintiff was decreed by the trial Court. The respondents'/vendees' appeal was dismissed by the District Court. But the High Court accepted the 4 respondents' Second Appeal on the ground that the plaintiff though owner of land "in" the estate was not an owner "of' the estate.
3. Learned counsel for the petitioners first tried to show that the material on record did not justify the finding rendered by the High Court that the land owned by the plaintiffs was not assessed to land revenue. In this behalf he contended that the positive evidence not having been produced by the either side, it should have been presumed by the High Court that the plaintiff's land was subject to the land revenue. In alternative he contended that even if it be assumed that the land owned by the plaintiffs was not subject to the payment of land revenue and even if it is accepted that the trend of the authorities so far has been to the effect that a person owning such a land would not be treated as owner of the estate, nevertheless all the reasoning in the old authorities which have been followed subsequently was based on the Hindu and colonial concepts of disparity of rights amongst various classes inhabitating different estates in the rural society of the Punjab. This class distinction was the main reason for treating a person though owning a piece of land in particular estate, as not being the owner of the estate. According to him this reasoning is no more applicable in the present day Pakistan under the particular constitutional set-up which in its ethos and character, is Islamic. Hence, according to him even if the land which was owned by the plaintiff was not subject to the payment of land revenue he could not be treated as "non-owner" of the estate.
4. The argument may be called ingenuous but it requires examination and so also to see the concept of the owner of the estate in the changed circumstances--particularly after the introduction of a new set-up of Courts on the Shariat side whereunder the customary law and practices have already been done away with. We, accordingly, grant leave to appeal.
5. ' Security Rs, 5,000.
6. ' The appeal shall be prepared on present record with direction to the parties to file all those documents which shall be necessary for disposal thereof.