1. Facts giving rise to this appeal are that one Jahana gave certain land to the appellants, Zain-ul- Abidin and others, by way of exchange. On this, the respondents, Ahmad and others, filed a suit for pre-emption alleging that the exchange was, in fact, a sale. Their plea was that they had superior right of pre emption for being legal heirs of the vendor, Jahana, owners of land in the patti if which the disputed land lies and co-sharers of the land in dispute. The suit was heard by the Civil Judge, Mandi Baha-ud-Din, District Gujrat, before whom ii was conceded by the appellants that the respondents possessed the above qualifications on which their claim was based. It was, however, denied by them that the transaction in dispute was actually a sale. Their plea in this regard found favour with the learned Civil Judge with the result that the suit was dismissed by him. On this, the respondents went in appeal which was accepted by the Districi Judge, Gujrat, and the suit remanded to the learned Civil Judge for frest decision. View taken by the learned District Judge was that the issue relating to the nature of the transaction in question had not been properly decided by the learned Civil Judge. This appeal is directed against the order of remand made by the learned District Judge.
2. It was contended by learned counsel for the appellants that it is no longer necessary to go into the question of true nature of transactions in dispute because even if it was a sale the respondents' suit could not succeed. Argument proceeds that qualification of being legal heirs of the vendor or owner of land in the patti are not recognized by Muslim Law as spelt out in Government of N.W.F.P.
2. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 Supreme Court 360)
3. (Shariat Appellate Bench). As for the qualification of being a co-sharer, it is available for claiming right of pre-emption but before so doing it is necessary to make Talabs (demands). Plea of learned counsel for the appellants was that since no decree was passed in favour of the respondents before 31st July, 1986 and there was no allegation or evidence to the effect that Talabs were made by the respondents before filing the suit for pre-emption, they could not succeed even as co- sharers of the land in question. In this connection, reliance was placed by him on Sardar Ali and others v. Muhammad Ali and others (PLD 1988 Supreme Court 287), Ghulam Qadir v. Nawab Din (PLD 1988 SC 701) and Mst. Sara Begum v. Ibrahim and 4 others (PLD 1989 SC 314). Respondents have not turned up to say anything to the contrary. Contentions raised by learned counsel for the appellants are supported by the case-law cited by him. Therefore, agreeing A with him, I hold that, in the circumstances mentioned above, dismissal of the suit of the respondents cannot be helped.
4. Remand of the appeal to the learned District Judge or remand of the suit to the learned trial Court would, therefore, be an exercise of futility, order of remand made by the learned appellate Court is, accordingly, set aside and the judgment and decree passed by the learned Civil Judge restored.
5. Appeal is disposed of as aforesaid leaving the parties to bear their own costs throughout.