' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---The necessary and material facts leading up to this Letters Patent Appeal are as: Noor Alam Shah was owner of considerable landed property in village Panam Dheri, Tehsil and District Peshawar. Admittedly he had settled in Queensland, Australia, since long. Mst. Muslima Jan, plaintiff-appellant, claiming to be his daughter filed a suit on 10-2- 1967 against the defendants-respondents, wherein, besides claiming a declaration of her title to and confirmation of her possession over 1/2 share of the land in dispute, she also sought annulment of sale of the aforesaid land by virtue of the registered sale-deed dated 5-8-1940 on behalf of her father through one of the brothers and his attorney Murwat Shah, in favour of Haji Khair Muhammad, predecessor-in-interest of defendants-respondents Nos.1 to 11. She had impugned the sale deed aforesaid on the grounds of its being collusive, fraudulent, without consideration and without lawful authority. A possessory relief was also claimed in the alternative.
The suit was vehemently contested by Mst. Zaitoon and ten others who not only controverted the plaintiffs claim of being the daughter of Noor Alain Shah but also repudiated her title to the disputed land. In the light of the pleadings of the parties, they were put to trial on the following issues:-
(1) Whether the plaintiff has a cause of action?
(2) Whether suit is competent in its present form?
(3) Whether the suit is within time?
(4) Whether defendants Nos.1 to 11 have matured their title to the suit land by adverse possession for more than 12 years?
(5) Whether the plaintiff is estopped to bring the present suit?
(6) Whether the plaintiff is the daughter of Noor Alam Shah the origin owner of the suit land?
(7) Whether Murwat Shah was the Attorney of Noor Alam Shah and he h. Validly sold the suit land in favour of Khair Muhammad Khan,- the predecessor-in-interest of defendants Nos.1 to 11 by way of registere sale deed dated 5-8-1940 for a sum of Rs,3000, if so, its effect?
(8) Whether the sale of the suit land by Murwat Shah in favour of Kh. Muhammad is protected under section 41, T.P. Act?
(9) If issue No,6 is proved in the affirmative, to what share the plaintif would be entitled in the suit land?
(10) Whether Noor Alain Shah had permanently settled in Queensland and had died there, if so, its effect?
(11) Whether the registered sale-deed dated 5-8-1940 by Murwat Shah favour of Khair Muhammad Khan, predecessor-in-interest of th defendants Nos.1 to 11 is without consideration, fraudulent and collusive if so, its effect?
(12) Whether Noor Alam Shah, the alleged father of the plaintiff had validl authorised the alleged attorney to sell the land owned by Noor Al Shah including the suit land?
(13) Relief.
2. The learned trial Judge vide his judgment and decree dated 4-4-1974 annulled the registered sale-deed dated 5-8-1940 and Mutation No,375 dated 9-9-1940 and in consequence granted the plaintiff-appellant a possessory relief of half of the disputed property. Feeling aggrieved, the defendants-respondents went in appeal to the District Judge. The plaintiff-appellant filed cross- objections claiming more than the half share. The learned District Judge dismissed the appeal as well as the cross-objections on 26-6-1978. The defendants-respondents preferred a revision petition in this Court. A learned Single Judge by his order dated 9-4-1984 accepted the revision petition and while setting aside the judgments and decrees of the two Courts below, non-suited Mst. Muslima Jan appellant on the ground of limitation and adverse possession. Aggrieved by that order, Mst. Muslima Jan has filed this Letters Patent Appeal.
3. The learned counsel for the answering respondents raised a preliminary objection as to the competency of this appeal and had also vehemently contested the claim of Mst. Muslima Jan appellant to be the daughter of Noor Alam Shah and also to the disputed land. It is, therefore, necessary to deal with and dispose of the preliminary objection at the outset.
4. S. Muhammad Shah Badshah, learned counsel for the respondents, maintained that Letters Patent Appeal was not competent and invoked the provisions of section 3 of the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) which reads as under:- "(3) Certain appeals barred.---As from the commencement of this Ordinance --
(a) no appeal under the provisions of any Letters Patent, as applicable to a High Court, shall be entertained by such High Court; and
(b) no second appeal shall lie in any suit of the nature referred to in section 102 of the Code of Civil Procedure, 1908 (V of 1908), as amended by this Ordinance: ' Provided that nothing contained in this Ordinance shall be construed as affecting any such appeal which was pending immediately before the commencement of this Ordinance.
' In support of this submission S. Muhammad Shah Badshah referred to a recent unreported judgment of the august Supreme Court in Civil Appeal No,16-P of 1986 decided on 9-5-1987.
5. The learned counsel for the appellant on the authority of Pakistan International Air Lines Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553 and an unreported D.B. Judgment of this Court in L.PA. No, 89 of 1963 decided on 2-11-1971 Mst. Jehan Begum v. Yar Muhammad and others contended that the Law Reforms (Amendment) Ordinance, 1972 having been promulgated on 12th September, 1972, it had no retrospective effect and in consequence this case which was pending before that date would not fall within the mischief of section 3 of the Ordinance.
6. The second precedent case of Mst. Jehan Begum cited at the Bar by Mr. N.M. Khan, learned counsel for the appellant, is not relevant to the proposition raised by S. Muhammad Shah Badshah, learned counsel for the respondents, for two-fold reasons: firstly, that the Letters Patent Appeal was decided before the promulgation of the Law Reforms Ordinance; and secondly, that the subject matter of Letters Patent Appeal was a revision petition instituted under section 34 of the N.-W.F.P.
Courts Regulation, 1931 and which had by then been repealed by virtue of the West Pakistan Civil Courts Ordinance, 1962, was held incompetent while right of second appeal had been made available which was amenable to Letters Patent Appeal. In the instant case, order in revision under section 115 of the Code of Civil Procedure, 1908 of a learned Single Judge of this Court has been assailed in this Letters Patent Appeal.
7. The precedent case of Pakistan International Air Lines v. Pak Saaf Dry Cleaners was relied upon for the following dictum of the august Supreme Court:- "So far as the first point raised by Syed Sharifuddin Pirzada is concerned the position in law is well- settled that the right of appeal is not a mere matter of procedure, but it is a substantive right; and that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties concerned till the rest of the career of the suit."
' The learned counsel has cited only part of the report. We would, therefore, reproduce the remaining portion of citation which clinched the matter with the following observations:-- It and that these rights can be taken away only by a subsequent enactment, provided it so provides expressly or by necessary intendment, and not otherwise."
8. There is no cavil with the general proposition enunciated by the Supreme Court in Pakistan International Air Lines Corporation v. Pak Saaf Dry Cleaners that the right of appeal is a vested right and that the institution of the suit carries with it the implication that all rights of appeal at the time of institution of the appeal are preserved to the parties to the lis till the rest of the career of the suit.
See (1) Garikapati Veeraya v. N. Subbiah Choudhry and others PLD 1957 SC (India) 448, (2) Sutlej Cotton Mills Ltd. v. Industiral Court, West Pakistan and others PLD 1966 SC 472 and (3) Mst. Shohrat Bano v. Ismail Dada Adam Soomar 1968 SCMR 574. Nevertheless equally significant are the concluding observations that these rights of appeal can be taken away by a subsequent enactment. Now in the instant case section 3(a) of the Law Reforms Ordinance, B 1972 reproduced in para-4 ante has expressly taken away the right of Letters Patent Appeal.
9. We are unable to subscribe to the view of Mr. N.M. Khan that the case in hand is covered by the proviso to section 3 ibid. The words 'such appeal' occurring in the proviso are relevant only to the Letters Patent Appeal which was pending before 14-4-1972 and does not bring within its fold the suit pending before that date. The proposition as to whether by mere omission of clause 10 of the Letters Patents the Ordinance had intended to abolish the Letters Patent Appeals in respect of pending litigation as well raised in Jaffar Khan's case (Civil Appeal No,16-P of 1987) was settled by their Lordships of the Supreme Court in the following authoritative pronouncement:-- "In this context the proviso to section 3 as originally drafted and subsection (3) of substituted section 3 need examination. It will be noticed that in both these provisions the Ordinance saved the Letters Patent Appeals which were already pending before the Ordinance came into force. By making an express provision with regard to the pending Letters Patent Appeals, the Ordinance clearly indicated that no Letters Patent Appeal was to be filed in future even in respect of litigation which had started before its promulgation. If the omission of clause 10, ibid, was not intended to affect the pending litigation, there was no need whatsoever to make a specific provision in respect of the Letters Patent Appeal which had already been filed."
' Their Lordships were at pains to point out a distinguishing feature in the case of Pakistan International Air Lines Corporation v. Pak Saaf Dry Cleaners which has also been relied upon by Mr. N.M. Khan, learned counsel for the appellant, that foundation of the right of appeal therein was not clause 10 of the Letters Patent but section 39 of the Arbitration Act, 1940, which was special law had not been affected by the Ordinance.
10. For the foregoing reasons, we are inclined to uphold the preliminary objection raised by the learned counsel for the respondents that in view of clear bar created by clause (a) of section 3 of the Ordinance, this Letters Patent Appeal is not maintainable and the same is accordingly dismissed. Since we have dismissed this Letters Patent Appeal on a point of law, we would leave the parties to bear their own costs.