JUDGMENTMIAN NAZIR AKHTAR, J.-This appeal arises out of a suit for possession through pre- emption filed by the appellant in the court of Senior Civil Judge, Lahore, to pre-empt the land measuring 252 kanals and l2 marlas, situated in village Karnkay, Tehsil and District Lahore. Right of pre-emption was claimed by the appellant on the ground of being an owner in the Estate with the additional qualification of contiguity. The trial court held that the appellant enjoyed superior pre- emptive right and decreed the suit subject to payment of Rs.60,000/-, vide judgment and decree dated 29.7.1987. The respondents prefferred an appeal before the District Judge which was allowed by the learned Addl: District Judge on the ground that the plaintiff had no superior right because the qualification based on ownership in the estate or Patti was declared un-islamic by the Shariat Appellate Bench of the Supreme Court in the case of Govt of NWFP through Secretary Law Department Vs. Said Komai Shah (PLD 1986 SC 360).
2. The learned counsel for the appellant urged that even if statutory right of pre-emption could not be enforced in view of the recent judgments of the Supreme Court, the appellant's suit be treated to be one under section 9 of the CPC for enforcement of pre-emptive right available under the Islamic law. The learned counsel places reliance on the cases of Ibrahim Vs. Muhammad Hussain (PLD 1975 SC 457) and Allah Bakhsh Vs. Jan Nisar (PLD 1962 Karachi 317) to urge that any civil right available to a citizen can be enforced without codification, under section 9 of the CPC. The argument raised by the learned counsel for the appellant, in the context of the present case, has no force. The appellant had instituted the suit on 3.7.1975 when the Punjab Pre-emption Act, 1913 held the field and the pre-emptive right was claimed on the basis of section 15 of the Act. The appellant sought enforcement of his statutory right and was non-suited in the light of the precedents of the superior courts. The decree in favour of the appellant was passed on 29.7.1987 long after the target date fixed by the Shariat Appellate Bench of the Supreme Court in the case of Said Kamal Shah referred to above. The law laid down in the said case has been reiterated by the Shariat Appellate Bench of the Supreme Court in suo moto Shariat Review petition No. l-R(S)- 89.
Even if the appellant's suit is treated to be one under section 9 of the CPC for enforcement of Islamic right of pre-emption the appellant is bound to fail because he had neither pleaded nor proved the Talabs required under the Islamic law. He merely stated in para 7 of the plaint that on coming to know about factum of sale on 8.4.1975, he, without losing further the, applied for the certified copy of the sale deed from the office of the Registrar, Lahore and then filed the present suit. The said averment does not even remotely satisfy the pre-requisite of Talabs, under the Islamic law.3. For the foregoing reasons, I see no merit in this appeal which is dismissed, leaving the parties to bear their own costs.