' This revision petition by the vendees petitioners has arisen out of the following facts:
1. On 27-3-1980 through Mutation No,64 Muhammad Ramzan and Sarfraz petitioners purchased the suit land measuring 24 Kanals 6 Marlas situated in village Saidwala, Tehsil Mankera, District Bhakkar from Mehr vendor for an ostensible price of Rs,20,000 . On 18-3-1981 Taj Muhammad the father of Muhammad Sharif respondent pre-empted the said sale claiming superior right of pre- emption on the basis of being a collateral of the vendor and a co-sharer in the joint holding. He maintained that the price mentioned in the mutation was fictitious and that the actual price was Rs,4,000.
2. The petitioners resisted the suit claiming first right of purchase on the ground of being tenants under the vendor over the suit land. They asserted that the price mentioned in the mutation was fixed in good faith or actually paid. They also claimed Rs,70,000 as costs of improvements.
3. On the divergent pleadings of the parties the following issues were framed:
(1) Whether the suit has not been properly valued for the purposes of court fee and the deficiency in the court-fee has not been made up within time?
(2) Whether the suit has not actually been filed by the plaintiff himself, if re effect?
(3) Whether the plaintiff has got superior right of pre-emption?
(4) Whether the ostensible sale price Rs,20,000 was fixed in good faith or actually paid as the sale price of the suit land?
(5) If the above issue is not proved what was the market value of the suit land at the time of sale?
(6) Whether the defendants have effected improvements worth Rs,70,000 over the suit land, if so, its effect?
(7) Whether the suit is frivolous and as such the defendants are entitled to special costs under section 35-A of C.P.C.?
(8) Relief.
4. The parties adduced their evidence on the above issues. After considering the said evidence the learned trial Court vide judgment and decree dated 19-1-1988 dismissed the suit holding that the vendees were the tenants over the suit land under the vendor and therefore, the pre-emptor had no superior right of pre-emption.
5. Feeling aggrieved the respondent pre-emptor went in appeal which was accepted by the learned Additional District Judge-II, Bhakkar vide judgment and decree dated 6-5-1990. The respondent's suit was decreed subject to the payment of Rs,20,000.
6. Now the vendee petitioners have come up in revision to question the correctness of the decision given by the learned lower appellate Court.
7. I have heard the parties' learned counsel and have also gone through the material available on record.
8. In the impugned judgment the learned Additional District Judge has held: "In my opinion the superior right of pre-emption on the basis of tenancy was abrogated by the superior Courts after 31-7-1986 whereas the learned trial Court accepted the superior right of pre- emption on 19-1-1988 which is dear violation of the judgments of the superior Courts. Hence, judgment and decree passed by the learned trial Court is without lawful authority. In the present state of affairs the appeal is accepted."
9. Learned counsel for the petitioners has submitted that the present suit had been instituted under the Punjab Pre-emptied an Act, 1913 in which no decree had been passed in favour of the pre- emptor prior to 31-7-1986 and therefore, in view of the law laid down in the cases of Said Kamal (PLD 1986 SC 360) and Sardar All (PLD 1988 SC 287) no decree could be passed after the said date on any ground. He further submitted that admittedly the preemptor in the present case had not fulfilled the condition of Talabs as envisaged in Islam which was sine qua non for enforcing a right of preemption and therefore, the suit could never succeed. Learned counsel for the respondent did not find himself in a position to controvert the contentions raised by the learned counsel for the petitioners which had the support of Mst. Safia Begum v. Ibrahim and 4 others (PLD 1989 SC 314), Sher Muhammad and another v. Allah Ditta and 2 others (PLD 1988 SC 412), Suo Motu Shariat Review Petition No,1-R of 1989 (PLD 1990 SC 865) and Mst. Aziz Begum and others v. Federation of Pakistan and others (PLD 1990 SC 899).
10. The law now is well settled that in a pre-emption suit instituted under the Punjab Pre-emption Act, 1913 no decree could be passed in favour of the pre-emptor on any ground after 31-7-1986 as the said Act had been rendered unworkable after the said date. The impugned judgment and decree, therefore, was clearly violative of the said law, I, therefore, accept this revision petition and set aside the impugned judgment and decree dated 5-5-1990. The respondent's suit stands dismissed.
11. Learned counsel for the respondent made an unsuccessful effort to take advantage of the provision of section 36 of the Punjab Pre-emption Ordinance which runs as under:- "36.--(1) Notwithstanding anything in any ether law for the time being in force, all the decrees, judgments or orders dismissing the suits of preemption, instituted or pending during the period from 1st August, 1986 and 28th March 1990, in which the right of pre-emption was claimed as is available under this Ordinance, shall be of no legal affect, and such suits, on an application made by the aggrieved person, within sixty days of the commencement of this Ordinance, shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 31, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made `Talb-i-Ishhad' in the presence of two truthful witnesses."
12. It is clear from the above provision of law that a pre-emptor could avail of the concession on an application. This revision petition could not be treated as an application on behalf of the respondent under the aforementioned provision of law. It was for the respondent-pre-emptor to make such an application which he did not within the prescribed period of 60 days. He, therefore, could not take the benefit under section 36 ibid.