' Allah Ditta vendor had sold a piece of land mesuring 84 Kanals 14 Marlas situated in the area of village Khurpa, Tehsil Pasrur, District Sialkot, to Ahmed Din defendant, the predecessor of present respondents on 8-5-1969 for a sum of Rs,2,000 by means of a consent decree. On the basis of this decree sale mutation was sanctioned on 13-3-1970. Noor Muhammad and three others, the petitioners herein, had brought a suit for possession through preemption against Ahmed Din claiming their superior right of pre-emption on the basis of their being owners in the estate. The suit was decreed by the trial Court on 5th of November, 1975. Ahmed Din vendee filed an appeal in the Court of learned District Judge, Sialkot, which was dealt with by an Additional District Judge, Sialkot, who vide his judgment and decree, dated 3-2-1977, accepted the same and dismissed the suit by reversing the findings of the trial Court on issue No,1 which is in the following terms:- '
"Whether the plaintiffs have superior right of pre-emption? OPP. Aggrieved by these findings, the plaintiffs brought this civil revision.
2. It is argued on behalf of the plaintiffs-petitioners that the fact of their being owners in the estate and their opponent being a stranger stood admitted on the record but the learned Additional District Judge impressed by the promulgation of Martial Law Regulation No,115 on 11-3-1972, by which a tenant was given first right of pre-emption, proceeded to hold that the defendant/vendee, being a tenant of the disputed land, had superior right of pre-emption as compared to the pre- emptors and non-suited them on that account. Learned counsel for the plaintiffs-petitioners is of the view that the Martial Law Regulation No,115 had no retrospective effect and it could not be made applicable to the pending proceedings. He contends that even, according to his own showing, the defendant/vendee was not a tenant, rather, he was a temporary allottee of the suit land and could not claim his preferential right of pre-emption on account of his -tenancy which did not exist nor he could improve his status under section 21-A of the Punjab Pre-emption Act.
3. In support of his contention that the new law had no rertrospective effect, the learned counsel has quoted Hassan and others v. Fancy Foundation PLD 1975 SC 1.
4. On the other hand, it is argued on behalf of the defendant/respondent that the plaintiffs- petitioners were bound to maintain their superior right of pre-emption at the time of sale, at the time of institution of the suit and at the time of decree but in the instant case they lost their preferential right at the third stage because during the pendency of the suit superior right of preemption had been conferred on the defendant-respondent by Paragraph No,25 of Martial Law Regulation No,115 which was made applicable w,e,f, Kharif 1972, and his right became superior to that of his opponents.
5. In support of his contention that his claim stood recorded as a tenant in the revenue record, the learned counsel has referred to the entries of the Jamabandi for the year 1966-67 (Exh.P-5).
6. Exercising the right of reply, the learned counsel for the plaintiffs-petitioners submits that the defendant/vendee had never been tenant of the suit land as it is obvious from his own statement as D.W.1, coupled with paragraph No,3 of the grounds of his appeal and entries in column No,8 of Jamabandi (Exh.P5). In this regard he has also referred to paragraph No,3 of the judgment of the learned District Judge.
7. From the entries of Jamabandi of 1966-67 (Exh.P5) read as a whole, coupled with the statement of the defendant-respondent as D.W.1, it is obvious that he was not in the occupation of the disputed land as a tenant, rather, he was in its possession as an allottee or owner. If he was owner or allottee of the land, he could not be tenant under his own landlordship and the entries in cultivation column of the Revenue Record, showing him as a tenant of the suit land were apparently incorrect, especially when they did not synchronise with the entries in its rent column.
This being so, he could not claim a superior right of pre-emption on the basis of tenancy as against his opponents.
8. Even if the defendant-respondent, by any stretch of imagination, was tenant of the suit land, even then he could not succeed on the basis of the new law-Martial Law Regulation No,115 which conferred the right of pre-emption on tenant of the suit land because tenancy was not one of the qualifications for basing right of pre-emption or making it a ground of defence in a suit for preemption at the time the suit was instituted.
9. The new qualification was added in the law which was enacted during the pendency of the suit and it had no retrospective operation to effect the pending proceedings as it was essentially a substantive law which did not have retrospective effect. Therefore, the new law did not snatch away from the plaintiff-appellants the superior right of pre-emption based on their ownership in the estate at any stage and they retained superiority of pre-emptive rights from start to finish.
10. In view of the above, the findings of the learned Additional District Judge on issue No,1 are reversed. As a result, the revision petition is accepted, the judgment and decree of the learned Additional District Judge are reversed and those of the trial Court are restored with no order as to costs.