Residential house situated in village Ghaziot, Tehsil Sohawa, District Jhelum, was purchased by Allah Ditta respondent No.2 from Mst. Sawani respondent No.l vide a registered sale deed-dated 22-11-1978. Abdul Ghani respondent No3 filed suit to pre-empt the aforementioned sale on the basis of qualification of being owner in the estate. This suit was decreed in his favour through a consent decree passed on 14-7-1989. Haq Dad petitioner before this Court filed a suit on 18-11-1979 seeking a decree for declaration to the erect that he was owner in the house in question to the extent o77/8th share therein being a residuary of Ashraf deceased husband of Mst. Sawani his widow Who owned only 1/8th share in the suit house, therefore, the questioned sale beyond that share is void and inoperative against his ownership and possessory rights. In the same suit decree for possession through pre-emption was also prayed for. As an alternate relief, superior pre- emptive right was claimed by the petitioner on the ground of being 'a co-sharer in the Khata which qualification according to the petitioner is. superior both to vendees as well as the rival pre- emptor. The suit was contested and the relief regarding grant of a declaratory decree was not granted. However, the suit was decreed for possession through pre-emption for the first time vide judgment and decree dated 18-6-1987. The petitioner did not challenge the decree of dismissal of suit in appeal regarding relief of declaration. However, respondent No3 the rival pre-emptor challenged the decree for possession through pre-emption granted in favour of the petitioner in appeal. The petitioner did not challenge the decree of dismissal of the suit regarding relief of declaration even by way of filing of cross-objections in the said appeal. Consequently the decree of dismissal of the suit regarding relief of declaration became final. Learned first appellate Court vide judgment and decree dated 29-7-1989 accepted the appeal and dismissed the suit for pre- emption on the ground that no decree could have been passed in a suit filed under the provisions of Punjab Pre-emption -Act after 31-7-1986 for the first time. Aggrieved of this judgment and decree the petitioner has filed this civil revision.
2. Ch. Mahmood Ahmad, Advocate has appeared on behalf of the petitioner whereas Sh. Zamir Hussain, Advocate has appeared on behalf of respondent No.3.
3. Learned counsel for the petitioner has contended that the suit seeking declaration of title has wrongly been dismissed by the learned trial Court and, therefore, the petitioner is entitled to the grant of decree to that extent inasmuch as it stands established on the record that he is a residuary and is entitled to 7/8th share in the house in question which has been illegally sold by respondent No.i beyond her 1/8th share therein. Learned counsel however, has conceded that the decree for possession through pre-emption has rightly been set aside by the learned first appellate Court inasmuch as the pre--emption suit which has not been decreed prior to 31-7-1986 could not have been decreed thereafter in view of law declared in various cases by their Lordships of the Supreme Court of Pakistan.
4. On the other hand learned counsel for the respondents has argued that the petitioner having not challenged the decree of dismissal of the suit regarding relief of declaration of title in the first appeal either by filing of an appeal or by filing of cross-objection, is not entitled to challenge the said decree in this civil revision. According to the learned counsel this civil revision is liable to be dismissed.
5. I have conserved the arguments addressed by the learned counsel for the parties and have. also gone through the record. The decree of dismissal of the suit regarding prayer for grant of a declaratory decree on the basis of title was not challenged by the petitioner in appeal or by filing of cross-objections. Consequently the same having become final, cannot be allowed to be challenged in this civil revision. Argument of the learned counsel for the petitioner, therefore, on this score is repelled.
6. No decree for possession on the ground of superior right of pre--emption claimed by the petitioner could have been granted in his favour in a suit instituted on 18-11-1979 under the provision of Punjab Pre-emption Act, 1913, which has not been decreed up to 31-7-1986 in view of the law declared in the cases of Government of N: W.F.P. v. Said Kamal Shah 8 (PLD 1986 SC 360), Sardar Ali v. Muhammad Ali (PLD 1988 SC 287), Rozi Khan v. Karim Shah (1992 SCM R 445) and Zafar Ullah v. Muhammad Khan and others (1993 SCM R 696). Hence learned first appellate Court has rightly accepted the appeal filed by respondent No3 and set aside the decree for possession through pre-emption granted by the trial Court.
Resultantly, I see no force in this civil revision. The same, is, dismissed. The parties are left to bear their own costs.
AA./H-95/L