' MUNIR A. SHAIKH, J.---The plaintiffs/pre-emptors appeal against judgment and decree dated 26- 6-1992 whereby their suit to pre-empt the sale in dispute has been dismissed.
2. The facts forming the background of this appeal shortly stated are that respondents 2 to 5 sold their suit land through sale-deed registered on 6-7-1978 to respondent No,1 for an amount of Rs,4,20,000. The appellants on 4-3-1981 filed the suit from which this appeal has arisen to pre-empt the said sale on the ground that they were owners in the estate as such had superior right of preemption. The correctness of fixation of amount of consideration at Rs,4,20,000 was also disputed and it was pleaded that as a matter of fact the consideration amount was Rs,2,75,000.
3. The learned trial Court reflected the controversies arising from the pleadings of the parties in the following issues:--
(1) Whether the suit is undervalued for the purposes of court-fee, if so, what is its correct valuation and to what effect?
(2) Whether the description of the suit land has not been correctly given in the plaint, if so, what is its effect?
(3) Whether the suit is for partial pre-emption?
(4) Whether the suit has become barred by time against the defendant No,6 in view of preliminary objection No,6 of written statement of defendant?
(5) Whether the plaintiffs have got superior right of pre-emption qua the vendee-defendants?
(6) Whether the plaintiffs have waived their right of pre-emption by their own conduct?
(7) Whether the sum of Rs,4,20,000 was fixed in good faith or actually paid as the price of the suit land?
(8) On the proof of issue No,7 what was the market value of the suit land at the time of its sale?
(9) Whether the vendee-defendants have effected any improvements over the suit land, if so, to what extent and with what effect?
(10) Relief.
' The learned trial Court decided issues 3, 4, 6, 7 and 9 against the appellants and dismissed the suit through judgment dated 26-6-1982 which has been appealed against.
4. Learned counsel for the respondent No,1 raised a preliminary objection that since the right of pre-emption was claimed on the ground of ownership in the estate and no decree admittedly was passed in favour of the appellants before 31-7-1986 therefore, according to law declared by the Supreme Court interpreting the rule laid down in judgment reported as Government of N.-W.F.P.
Through its Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) no decree can be passed at this stage in favour of the appellants, therefore, the appeal is not maintainable and is liable to be dismissed.
5. Learned counsel for the appellants when faced with this situation frankly conceded that no decree can be passed in favour of the appellants at this stage. He, however, argued that he has filed application Civil Misc. No,175-C/1 991 seeking permission to amend the plaint to raise a plea that he was entitled to pre-empt the land under Punjab Pre-emption Act, 1991 as Shafi Khalit and he can maintain the suit under section 35 of the said Act.
6. In order to appreciate the argument it will be useful to reproduce section 35 of the Punjab Pre- emption Act, 1991 which is as follows:-- "Section 35(1).--Saving Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive) in which the right of pre- emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force, of this Act shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 30, 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 established that he had made `Talb-i-Ishhad' in the presence of two truthful witnesses."
7. It is clear from the plain reading of this section that only those suits which were instituted between 1-8-1986 and 28th March, 1990 in which right of pre-emption was claimed as is available under the Act fell within the ambit and scope of this section. It is indeed clear that section 35 was enacted to save only such suits as were instituted, after the declaration regarding repugnancy of Punjab Pre-emption Act, 1913 made in Said Kamal Shah's case became effective w,e,f. 31-7-1986 and the said Pre-emption Act ceased to be the law, P claiming pre-emption on the basis of Islamic Law of Pre-emption though no such law was enacted in pursuance of judgment rendered in Said Kamal Shah's case. In the present case the suit was filed under the Punjab Pre-emption Act, 1913 and the right of pre-emption was not claimed as is available under the Punjab Pre-emption Act, 1991 i,e. Based on Islamic Law therefore, section 35 of the Act is not attracted to the present case and the prayer for amendment of the plaint for claiming right of pre-emption as is available under this Act is not maintainable.
8. On the foregoing reasons, the appeal as also application Civil Misc. No,175/C/91 for amendment of the plaint are hereby dismissed. The parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.