Ziarat Gul son of Maroofullah, resident of Daib-Gran, District Mansehra instituted on 24-10-1982 Suit No.506/1 v. Muhammad Ashraf and three others resident of Bareri-cum-Mansehra, District Mansehra for grant of a decree of possession by exercise of right of pre-emption to the extent of 3/4 share of land bearing Khasras Nos.727, 728, 729, 723, 724 and 725 measuring 209 kanals 3 marlas situate within the Revenue Estate of Village Daib-Gran, District Mansehra according to the record of rights of 1965-66 on payment of valuable consideration of Rs.16,000 which land was purchased by Muhammad Ashraf and others from one Ali Asghar son of Abdullah through Mutation No.2300 attested on 26-10-1981. Ziarat Gul claimed superior right of preemption being co- sharer in the suit land.
2. The suit was resisted by the defendants and after recording evidence in the case the learned Judge of the trial Court by a judgment and decree dated 2-12-1985 dismissed the suit. Ziarat Gul preferred an appeal which was heard by the learned District Judge and by a judgment and decree dated 28-9-1986 the appeal was dismissed. Ziarat Gul d 20-12-1986 instituted C.R. No.112/86 in this Court which was heard and decid1d on 6-2-1988 as under:- "Joint statement of the parties and their counsel Ziarat Gul plaintiff--petitioner and Syed Abdus Salam Sarwar Advocate his counsel. Muhammad Miskeen defendant-respondent and Mr. Muhammad Younas Tanoli Advocate counsel for respondents and Aurangzeb respondent No.4 on Oath.
We have compromised the matter, Plaintiff-petitioner shall be awarded a decree for possession through pre-emption in respect of half of the suit land on payment of Rs.20,000 while in respect of other half of the suit land his suit shall be dismissed. The judgments and decrees of the Courts below shall be modified accordingly. Defendants-respondents shall part with the possession of the half of the suit land in favour of the plaintiff-petitioner. The compromise in the above terms is in the interest of the minor defendants-respondents since they are being allowed to retain half of the suit land in spite of the superior right of the petitioner in respect of the whole land. Parties may be left to bear their own costs.
R.O. & .A.C.(Sd.) JUDGE 6-2-1988 (Sd.)
Thumb-impression Ziarat GulSyed Abdus Salam.
Petitioner Sarwar, Advocate.
Thumb impression Muhammad Miskeen(Sd.)
Defendant-Respondent Muhammad Younas Khan, Tanoli Advocate.
Thumb-impression Aurangzeb Respondent No.4.
In view of the joint statement of the parties and their counsel this revision petition is accepted in the terms that the judgment and decrees of the Courts below are set aside. Plaintiff-petitioner is granted a decree for possession through pre-emption in respect of the half of the suit land on payment of Rs.20,000 while his suit with respect to the other half of the suit land is dismissed. The defendants-respondents shall part with the possession of half of the suit land in favour of the plaintiff-petitioner. The compromise in the above terms is in the interest of the minor defendants- respondents since paintiff-petitioner has proved his superior right of pre-emption from the evidence on record as being a co-sharer and that the defendants respondents have still been allowed to retain half of the suit land. The parties are left to bear their own costs."
Muhammad Ashraf and others instituted on 4-2-1991 the present C.M. No.10 of 1991 under section 12(2) read with section 151, C.P.C. Praying therein to set aside the abovementioned judgment and decree dated 6-2-1988 in C.R. No.112 of 1986 of this Court for want of jurisdiction and dismissal of the petition for revision (C.R. No.112 of 1986).
3. Learned counsel for the applicants contended that the provisions of N.-W.F.P. Pre-emption Act, 1950 seized to exist on 31-7-1986 which governed the suit of Ziarat Gul and that there was no case pending herein in this Court i.e. C. R. No. 112/86, for decision as the petition for revision was filed on 20-12-1986 after the crucial date of 31-7-1986. Learned counsel for the applicant referred to N.- W.F.P. Pre-emption Act, 1987 (Act X of 1987) promulgated on 8-4-1987 and subsection (3) of section 35 therein and pointed out that all cases and appeals lapse and suits of the pre-emptors stand dismissed. By reference to subsection (2) of section 35 it was contended that no decree in the suit has been therefore, in view of the judgment in, Rozi Khan's case reported in 1992 SCM R 445 could be passed after 31-7-1986 even on compromise of the parties as it has been done in this case. The compromise was not lawful within the meaning of Order 23 Rule 3, C.P.C. And, therefore, no judgment and decree can be passed thereon. It was concluded that there was no case pending hereinbefore this Court, there was no lawful agreement between the parties for passing a judgment and decree according to the provisions of Order 23, Rule 3, C.P.C. And as such this Court lacked jurisdiction in deciding C.R. No.112 of 1986 on 6-2-1988 and, therefore, the judgment and decree of this Court of the even date are liable to be set aside under section 12(2), C.P.C. And the petition of Ziarat Gul plaintiff-pre-emptor petitioner is liable for dismissal.
4. Learned counsel for Ziarat Gul contended that the compromises in civil suits are given effect into by the Courts in the interest of justice and referred to the case of Umar Din decided on 23-2-1993 by the august Supreme Court of Pakistan, reported in 1993 SCM R 1089. Learned counsel also referred to judgment reported in 1992 SCM R 2184-D; decided on 3-6-1992. Learned counsel, therefore, concluded that the judgment and decree with jurisdiction of this Court dated 6-2-1988 on compromise of the parties has become final between the parties and will be deemed to be judgment and decree under the N.-W.F.P. Pre-emption Act, 1987 by operation of subsection (2) of section 35 of the Act. '
5. The suit for exercise of right of pre-emption i.e. The law of the substitution is regulated by the enactment of the Legislature wherein the rights of the pre-emptors, vendors and vendees of the property in dispute are given definitions and meanings. The procedure including limitation etc. Is provided therein for decision. The law of pre-emption, therefore, will require strict interpretation according to the meanings and procedure of the enactment. The parties in a pre-emption suit, therefore, will not be entitled to contract out from the rights accruing and the procedure prescribed under the law and in the present case the two enactments namely N.-W.F.P. Pre-emption Act, 1950 and the N: W.F.P. Pre-emption Act, 1987. The suits instituted under the N.-W.F.P. Pre-emption Act, 1950 did not. Require any mandatory procedure before the institution of the suit. The repealing enactment namely N.-W.F.P. Pre-emption Act, 1987 has prescribed mandatory procedure before instituting the suit for exercise of right of pre-emption i.e. `Talabs' as prescribed under section 13 of the Act. A suit instituted without `Talabs' cannot proceed at all and the plaint will be liable for rejection under Order 7, Rule 11, C.P.C.
6. In the present case there is a judgment and decree dated 6-2-1988 of this Court without the mandatory requirements of `Talabs'. The judgment and decree contrary to law or against the law is void and nullity in law and, therefore, the Court passing such judgment and decree loses jurisdiction in the matter. A void judgment and decree cannot be made a judgment and decree under the law with jurisdiction for the reasons that this Court had the jurisdiction to hear the petition for revision (C.R. No.112 of 1986) from the judgments and decrees of the Courts below. Even the appeal of Ziarat Gul pending hearing before the learned District Judge had lapsed on 31-7-1986 as no decree on the assertion of right of pre-emption could be passed under the N.-W.F.P. Pre- emption Act, 1950 after 31-7-1986 as laid down finally and firmly by the august Supreme Court of Pakistan in the Rozi Khan case, while interpreting and giving meaning to subsections (2) and (3) of section 35 of the N.-W.F.P. Pre-emption Act, 1987 promulgated on 28-4-1987. The judgment and decree dated 28-9-1986 of the learned District Judge was on the force of law of N.-W.F.P. Pre- emption Act, 1950, which had ceased to exist on 31-7-1986. There was no judgment and decree of learned District Judge under the law, which could be impugned in the petition for revision in this Court. Therefore, there was no petition for revision under section 115, C.P.C. Pending hearing before this Court oh 6-2-1988, when a compromise decree under N: W.F.P, Pre-emption Act, 1950' was passed. The decree. Dated 6-2-1988 of this Court cannot be deemed to a decree under N.-W.F.P.
Pre-emption Act, 1987 as the right of exercise of pre-emption was not claimed under N: W.F.P. Pre- emption Act, 1987, when suit was instituted on 24-10-1982 by Ziarat Gul i.e. Before institution of suit `Talabs' as mentioned under section 13 of the N.-M.F.P. Pre-emption Act, 1987 have not been established by Ziarat Gul pre-emptor.
7. The judgment and decree dated 6-2-1988 of this Court is on a compromise between the pre- emptor and vendees and given effect to under Order 23, Rule 3, C.P.C. This procedural provision of the Code commands that lawful agreement or compromise are to recorded and thereupon the decree in accordance is to be passed so far as it relates to suit. The procedure of passing decrees under Order 23, Rule 3 is strictly to be confined to this rule because the procedure in passing decree in a `lis' is dealt with extensively by the Code. The scope of rule 3 is narrower. The rule indicates the ingredients that is relating to the suit, lawful agreement or compromise and satisfaction of the Court. In this case we are concerned with lawful agreement or compromise. The pre-emptor and vendees could not obtain the decree in violation of the law applicable on 6-2- 1988. The institution of suit or the case required prior mandatory procedure of establishing `talabs' which was not forthcoming in the case when agreement or compromise was entered into between pre-emptor and the vendees. The agreement or compromise was not lawful. The parties of an agreement or compromise cannot circumvent the law of compromise, tithe application of law in a case or suit and clothe the unlawful agreement or compromise with the sanctity of a decree of a Court of law. The parties in a case or suit cannot confer jurisdiction upon a Court by entering into a compromise or agreement between themselves. The compromise before this Court on 6-2-1988 between Ziarat Gul pre-emptor and the vendees was not lawful and this Court had no jurisdiction to give effect to the compromise in a decree passed under Order 23, Rule 3, C.P.C.
8. A question will arise that in a `lis' personam relating to a property the parties can compromise their rights respectively in the property like the present case and the Courts should withhold their interference in the compromise or agreement which is otherwise lawful but is hit by mischief and procedural law only. The relevant facts of EA. Evan's case reported in PLD 1964 Supreme Court 536 were that a tenant on coming to know about the ownership of the house entered into an agreement with the landlord for payment of rent at a fixed rate and paid the same and was regularly paying the rent when the tenant received a notice calling upon him to quit and vacate the premises occupied by him within a fortnight. It was contended that the tenant had waived the protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and, therefore, the Rent Controller could proceed in an application for ejectment without the proof of mandatory notice under the said section for creating relationship of landlord and tenant. Further the question of law settled in the judgment was that a person entitled to a notice under the law can waive the same and whether this waiver will be contrary to public policy on the enforcement of a law. It was ruled that the service of the notice is, therefore; not merely a formality for acquainting the tenant of the transfer of the premises nor merely in the nature of a notice of attornment, but it is designed to fix the terminus a quo of the period of protection. It was further held that:-- "Reading the 'provisions of the Act as a whole section 30 was not intended to protect private rights, for, mere allottees did not by the allotment alone acquire any rights in the property but were designed as a matter of public policy to give general protection to such occupants not only as to irremovability for a reasonable period but also as to occupation upon payment of a reasonable rent.
Although such provisions cannot be construed to prevent a tenant from giving up possession of the premises in his occupation of his own wish and accord yet this does not mean that an agreement to do so can be lawfully enforced by the landlord. Similarly even though there may be nothing in the Act to prevent a tenant from voluntarily paying more than the rent chargeable under the Act, this would not entitle the landlord to enforce an agreement to pay at an enhanced rate, for, that would be in direct conflict with the provision in the statute which gives a tenant a right to retain possession of the premises upon the same rent at which he held the premises immediately before its transfer. This view, therefore, that because there is nothing in the Act which expressly prohibits the landlord or transferee of the premises from charging rent at a higher rate or that because the Act does not say that it shall not be lawful for the landlord to accept a higher rent the landlord is not necessarily debarred from doing so, cannot be upheld. The provision in the section that it shall be lawful for the transferee to charge rent on the basis of the last assessment by necessary implication makes it unlawful for him to charge rent at a different rate upon the well- known principle of expressum facit cessare tacitum. If a doing of a particular thing is made lawful the doing of something which is in conflict with that will be unlawful."
It is mandatory requirement of assumption of jurisdiction that a thing ordered to be done in particular manner must be done in that manner or not at all and doing something in conflict with that would be unlawful. Reference to the judgments in cases of Yousaf Ali, Muhammad Afzal, Mansab Ali and Atta Muhammad Qureshi reported in PLD 1958 SC 104, PLD 1967 SC 314, PLD 1971 SC 124 and PLD 1971 SC 61. Respectively. A lawful act without the mandatory requirements for doing the same if brought before the Court of law for a decree under Order 23, Rule 3, C.P.C. Will be nullity in law but the parties can enter into a lawful agreement without obtaining a decree or order on the same under the Code or other procedure from a Court of law, tribunal or authority. In the present case no decree could be granted in the suit of Ziarat Gul pre-emptor as the same will be a nullity in law, without jurisdiction, in violation of the mandatory requirements of law and against public policy.
9. The application under section 12(2), C.P.C. (CM. No.10 of 1991 in C.R. No:112 of 1986) is accepted and the judgment and decree dated 6-2-1988 of this Court is set aside and the petition for revision of Ziarat Gul pre-emptor (C.R. No.112 of 1986) is dismissed. The parties are to bear their own costs.