' The Appellant's suit for possession by pre-emption on the basis of being a co-sharer was dismissed by learned Civil Judge, Chiniot, on 4th February, 1989 on the solitary ground of non- fulfilment of the requirement of Talab as in Islam.
' The appeal filed by him also failed on the same ground on 5th September, 1989. In view of the law laid down by the Supreme Court in Ahmed and others v. Abdul Aziz and others reported as PLD 1989 SC 771, there is no option but to accept this appeal. Resultantly, the judgments and decrees passed by the Courts below are set aside and the suit is remanded to the trial Court with the direction to readmit it under its original number in the register of civil suits and proceed to determine the same in accordance with law.
2. The appellant has also applied for the refund of court-fee paid in appeal to this Court. Since the suit of the appellant was dismissed without any fault on his part and the same has now been remanded to the trial Court for fresh decision under Rule 23 of Order XLI, C.P.C., therefore, I grant a certificate authorizing him to receive back from the Collector concerned the full amount of court- fee i.e, Rs,7;500 paid on the memorandum of this appeal. As for the prayer of the appellant for the refund of the court-fee paid by him on the memorandum of appeal to the first appellate Court (District Judge), I am afraid the same cannot be ordered to be refunded under section 13 of the Court Fees Act. The parties are left to bear their own costs.