SHAFIUR RAHMAN, J.--Leave to appeal was granted to the pre-emptor/plaintiff to examine whether the High Court had in revision while restoring the judgment and decree of the trial Court dismissing the suit, not kept in view the provisions of section 35 of the North-West Frontier Province Preemption Act, 1987 (Act X of 1987) which had been enforced on 28-4-1987 and not correctly applied the provisions of section 5(c) of the North-West Frontier Province Preemption Act, 1950 (North-West Frontier Province Act XIV of 1950).
2. The three brothers, one of whom is employed in the Army and the other two abroad, purchased jointly 14 marlas of land from a joint holding on 27-11-1979 ostensibly for the construction of the house in village Bandi Seeran, Tehsil Haripur, District Abbottabad, to which they in fact belonged.
Ghulam Sarwar, the appellant, instituted a suit for pre-emption claiming to be a co-sharer and a participator in the immunities and appendages and also owner of the contiguous property. The trial Court dismissed the suit of the pre-emptor on the ground that the sale was exempt under section 5(c) of the Pre-emption Act, 1950. An appeal was preferred which was allowed by the Additional District Judge who recorded the following three findings:-
(1) Mr. Muhammad Riaz, one of the vendees, did not in person or through attorney appear at the trial to claim exemption.
(2) The two brothers were not residing in the native village, hence they could not be taken to be the residents of the village.
(2) As it was a joint property and without partition it could not be utilised for constructing a house, the plea of constructing a house was not available in view of decisions rendered on remand in Habibur Rehman and another v. Faqir Muhammad 1983 CLC 670 Pesh. And also before remand in PLD 1979 Pesh. 4, in the same case.
' On these grounds the protection was denied to the vendees and the suit of preemption was decreed on payment of the usual price determined.
3. The High Court reversed the finding of the trial Court on facts by observing as hereunder:-- "The statement given by Patwari Halqa and the statement of Abdul Khaliq clearly indicated that the petitioners did not own any house or other property in the village and that the suit land had been purchased for the construction of house, obviously for personal occupation when all the three vendees were earning hands. It was not the case of the preemptor that the petitioners-defendants were not the residents of this village and no such argument was advanced on his behalf at any stage of the litigation. Their being in service or out of country in that connection without abandonment, alleged and proved, would be regarded as temporary absence and could not deprive them of their status of being residents of this village."
' It afforded the protection under section 5(c) of the North-West Frontier Province Pre-emption Act, and accepted the revision petition, setting aside the judgment and the decree of the Additional District Judge and restoring those of the learned trial Court.
4. Mr. Abdul Hakim Khan, Senior Advocate, the learned counsel for the appellant emphasised the fact that neither in the written statement nor in the statements made at the trial, any of the witnesses or attorney of the vendees made a statement that the vendees wanted to construct a house for the purpose of occupation. Unless that requirement of law was established and the need, the desire and the intention of occupying the house was brought on record, the satisfaction of the other ingredients of section 5(c) of the North-West Frontier Province Pre-emption Act, 1950 was not sufficient in any case to establish the claim so as to earn the protection of the law. The second contentin of the learned counsel for the appellant and indeed a question of interpretation of law and of public importance is rooted in section 35 of the North-West Frontier Province Pre-emption Act, 1987 which repeals the North-West Frontier Province Preemption Act, 1950 and deals with the pending proceedings. The exact submission of the learned counsel for the appellant is that it was subsection (3) of section 35 of the North-West Frontier Province Pre-emption Act, 1987 and only a part of it which will apply. In so far as the revision pending before the High Court filed by the respondents, it shall be deemed to have lapsed and the further consequence provided therein that the suit of the plaintiff shall stand dismissed, is sought to be avoided on no principles except by observing that after the revision has lapsed there would remain nothing more to be done.
5. Mr. M. Munir Peracha, Advocate, the learned counsel for the respondents on the other hand contended that though specifically and literally reference to the self-occupation has not been made either in the pleadings or in the oral statements of the witnesses and the attorney, yet the fact remains that the protection against pre-emption was claimed as mentioned under section 5(c) of the North-West Frontier Province Pre-emption Act, 1950 and in the mutation itself it was mentioned that the property was being purchased for constructing a house. It was also an established fact that the area was small, that the three brothers were natives of this village and their anxiety to have a residence of their own when they had none earlier, would appear to be genuine and reasonable. To hold that they are not residents of the village only because they are in employment elsewhere and have not established a permanent residence elsewhere would be untenable, this being their native place/village and their father being still there and acting as their attorney. The whole impact of the material brought on record, according to the learned counsel for the respondents, is to establish fully the requirement of section 5(c) of the North-West Frontier Province Pre-emption Act, 1950 and nothing more was required to be done.
6. On the question of law the learned counsel for the respondents contended that consistent with the decisions of this Court, the word 'final' while the appeal is still pending should be given the same meaning which have been given by the Supreme Court in its decision in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287. Where a decree had been passed in favour of the pre-emptor only then the proceedings would continue to be governed by the law which stands repealed.
7. Taking up the purely legal question first namely, the impact of section 35 of the North-West Frontier Province Pre-emption Act, 1987 which was enforced on 28-4-1987 when the Revision Petition was still pending in the High Court, one has to take notice of section 35 which is reproduced in extenso as hereunder:-- "35. Repeal.--(1) The North-West Frontier Province Pre-emption Act, 1950 (N.-W.F.P. Act XIV of 1950), is hereby repealed.
(2) In the cases and appeals filed under the Law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under subsection (2) arid instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act."
This section envisages the pendency of appeals and cases against the judgments and decrees which have become final. Finality and pendency of appeal do not ordinarily go together. What is "final" cannot be the subject of appeal and what is subject of appeal cannot be "final". If we look to the legal definition of the words "final decision" as found in Black's Law Dictionary, this impression is dispelled. "Final decision" has been defined as hereunder:-- "One which leaves nothing open to further dispute and which sets at rest cause of action between parties. Judgment or decree which terminates action in Court which renders it. One which settles rights of parties respecting the subject-matter of the suit and which concludes them until it is reversed or set aside. The filing of signed findings and conclusions and order for judgment.
Synonymous with final judgment or decree.
The same dictionary refers to the "final decision" and "final judgment". "Final judgment" has been defined as hereunder:-- "One which finally disposes of rights of parties, either upon entire controversy or upon some definite and separate branch thereof Judgment is considered "fmal" only if it determines the rights of the parties and disposes of all of the issues involved so that no future action by the Court will be necessary in order to settle and determine the entire controversy."
Reading all these together, the conclusion which is inescapable is that the meaning which is to be given in this section is that the "judgment or decree which terminates action in Court which renders it". The question whether necessarily it must be a decree in favour of the pre-emptor is not a question which needs examination in this case nor are we properly assisted to embark on that species of decisions. In this case that question does not arise at all. When the North-West Frontier Province Pre-emption Act, 1987 came into force, the final judgments and decrees of the two Courts existed and indeed there was a decree in favour of the pre-emptor by the first appellate Court.
Therefore, this was a matter which was rightly dealt with by the High Court under the North-West Frontier Province Pre-emption Act, 1950 and subsection (3) of section 35 of the North-West Frontier Province Pre-emption Act, 1987 was not attracted.
8. As regards the question of fact, he find that the High Court has taken a correct view of the situation. By seeking protection of section 5(c) of the North-West Frontier Province Pre-emption Act, 1950, the defendant/respondents pleaded all that was required to be pleaded by reference to the law. The cumulative effect of the evidence is that the vendees are all residents of this village in the sense that it is their native village and they have not taken up permanent abode elsewhere. They are out in connection with their service/employment. Their animus revertendi is not found to be absent or lacking. They are found to have no other house in spite of the claim of the appellant that they owned three/four houses. No question was put to any of the witnesses to show that the house was not meant for the use or occupation of the vendees.
9. In the circumstances and for the foregoing reasons, we find that the judgment and the decree of the High Court does not require interference and the appeal is dismissed with costs.