1. ' SAIDUZZAMAN SIDDIQUI, J.--- The above appeal with the leave of this Court' is filed by the appellants to call in question the judgment and decree of Peshawar High Court dated 22-2-1993 passed in Civil Revision No,184 of 1991. `The relevant facts of the case are that land measuring 139 Kanals 11 Marlas situated in D.I. Khan was purchased by Haji Shabbir Khan and Haji Abdullah Khan (deceased) respondents Nos.
1. And 2 respectively herein, in equal shares through mutation which was attested on 26-3-1984.
2. Haji Muhammad, appellant No,9, and Allah Wasaya deceased filed a suit against respondents claiming right of pre-emption in respect of the suit land. During pendency of the suit Haji Shabbir Khan respondent No,1 entered into a compromise with the plaintiffs Haji Muhammad and Allah Wasaya accepting their superior right of pre-emption in respect of his 1/2 share in the suit land and accordingly a compromise decree was passed in favour of pre-emptors on 8-9-1988, on payment of Rs,1,74,437.50 by the pre-emptors to respondent No,1, in respect of the share of Haji Shabbir Khan in the suit land. Haji Abdullah Khan, who was defendant No,1 in the suit filed a review application against the consent decree dated 8-9-19$8 which was accepted by the trial Court and by order dated 3-1-1989 the consent decree passed in favour of appellants was set aside. The appeal filed by the appellants against the above order of the trial Court rejecting the compromise decree, was dismissed by the District Judge, D.I.Khan, on 29-3-1989. The appellants then filed Civil Revision Application No,117 of 1989 before the Peshawar High Court challenging the order of District Judge, D.I.Khan. During the pendency of the above Revision Application, the learned counsel for the parties made the following joint statement before the High Court:-- "We both agree that the learned trial Judge could not have legally rejected the compromise between the pre-emptors on the one hand, and Haji Shabbir, defendant No,2, on the other. She could have legally, however, set aside the decree on the grounds enumerated in the petition for review. We, therefore, pray that on acceptance of this revision petition, the learned trial Court may be directed to give her findings, inter alia, on the following issues as well:-- `What would be the effect of compromise between the pre-emptors on the one hand, and Haji Shabbir, defendant-vendee on the other, on rights of the parties to the suit? OPP'."
3. ' On the basis of the above joint statement of the parties, Civil Revision Application was disposed of by a learned Judge in Chambers of Peshawar High Court on 16-5-1990 as follows:-- "In view of the joint statement of the learned counsel for the parties recorded in this Court today, and while partially maintaining the findings of the learned two Courts to the extent of setting aside the impugned judgment and decree dated 8-9-1988 and accepting this petition in revision, the impugned orders of rejection of compromise dated 3-1-1989 passed by the learned trial Judge duly affirmed by the judgment and decree of the learned Appellate Court by order dated 29-3- 1989 are set aside and the case is remanded under section 151, C.P.C. To the learned trial Court with the direction to decide the suit finally, inter alia, on the following issue as well:- ' What would be the effect of compromise between the pre-emptors on the one hand, and Haji Shabbir, defendant-vendee on the other, on rights of the parties to the suit? OPP" The parties are directed to appear in the trial Court on 9-6-1990. They are, however, left to bear their own costs'."
4. ' After remand of the case, the trial Court vide judgment and decree dated 20-2-1991 decreed the suit of appellants to the extent of 1/2 share of Haji Shabbir Khan in the suit land while dismissed the suit in so far it related to the share of Haji Abdullah Khan. Both Haji Abdullah Khan and Haji Shabbir Khan filed two separate appeals against the judgment and decree of the trial Court dated 20-2- 1991 which were allowed by the District Judge, D.I. Khan by judgment dated 11-7-1991 and the suit filed by the appellants was dismissed as a whole. The Civil Revision application filed by the appellants before the Peshawar High Court challenging the judgment and decree passed by District Judge, D. I. Khan, also met the same fate. Leave was granted in the above case to consider the following legal contentions raised on behalf of the appellants:-- "4. It is contended by the learned counsel for the petitioners that the plaintiff's suit with regard to the share of respondent No,1 decreed on the basis of compromise could not have been set aside on the review application moved by respondent No,2 as it did not effect his share in the property in suit in any manner. It was further contended that the decree passed on the basis of compromise having not been initially challenged by respondent No,1 and the issue framed by the learned High Court only pertains to the effect of the compromise decree on the rights of Haji Shabbir Khan respondent No,2, the Courts below had no jurisdiction to enter into controversy of `Talab' which became irrelevant after the parties entered into compromise.
5. ' The points raised require further consideration. Leave is therefore, granted."
6. ' The learned counsel for the appellants contended before us that the learned 1st Appellate Court could not set aside the consent decree passed in favour of the appellants as a result of the compromise between the appellants and Haji Shabbir Khan. It is contended that the consent decree was never challenged by Haji Shabbir Khan which attained finality and as such the question of absence of `Talbs' was totally irrelevant. It is contended by the learned counsel for the appellants that the consent decree in the suit shall be deemed to have been passed under North- West Frontier Province Pre-emption Act, 1987 and it was open to the vendee to have given up the plea of `Talbs' in the case. It is, accordingly, contended by the learned counsel that the first Appellate Court as well as the learned Judge in Chambers were not justified in setting aside the consent decree passed in favour of the appellants on basis of the compromise between appellants and Haji Shabbir Khan.
7. ' The learned counsel for the respondents on the other hand contended that the compromise decree passed in favour of Allah Wasaya deceased, was void ab initio as it was contrary to the law declared by this Court in the case of Government of N.-W.F.P. v. Syed Kamal Shah (PLD 1986 SC 360) and Rozee Khan v. Syed Karim Shah (1992 SCM R 445). It is, accordingly, contended by the learned counsel for the respondents that the consent decree was rightly set aside by the first Appellate Court notwithstanding the fact it was not challenged by Haji Shabbir Khan for a long time.
8. After hearing the learned counsel for the parties we are of the view that in the peculiar facts and circumstances of this case, the consent decree passed in favour of Allah Wasaya deceased, could not be set aside by the first Appellate Court after the remand of the case by the High Court. It is not disputed before us that the consent decree in the suit was passed on 8-9-1989 when N.-W.F.P. Pre- emption Act (Act No,X of 1987) was already enforced. It is true that in the absence of `Talbs', the suit for enforcement of pre-emption right could not be decreed as required under the new dispensation. However, as held in the case of Mst. Kharo v. Sher Afzal (1992 SCM R 1844), the question whether or not the requisite `Talbs' were made by the plaintiff and all other conditions regarding thereto were satisfied, is a question of fact and it was open to the defendant-vendee either to raise or give up the plea regarding `Talbs'. In the case before us, at the time the consent decree in the suit was passed in favour of appellants, no objection as to its maintainability on account of absence of `Talbs' was raised by Haji Shabbir Khan, who entered into the compromise with the appellants and received a sum of Rs,1,74,437.50, as consideration. Not only this when the review application was filed by Haji Abdullah Khan in the suit, against the'acceptance of compromise, Haji Shabbir Khan reiterated the compromise and prayed for dismissal of the review application. Apart from it, the remand order passed by the High Court in Civil Revision Application No,117 of 1989 on 16-5-1990 clearly indicated that the validity of the compromise was not in issue and the suit was remanded to the trial Court only for determining the effect of compromise between pre-emptors on the one hand and Haji Shabbir Khan on the other hand, on the rights of the parties to the suit. Haji Shabbir Khan having already entered into the compromise and having stood by it throughout, could not be deemed to be a party to the suit any more. In these circumstances, the consent decree could not be set aside on the ground that the appellants had not raised `Talb' in the case. The learned counsel for the respondents contended that under section 35(3) of the N.-W.F.P. Pre-emption Act, 1987, the suit instituted by the appellants stood abated and as such no decree could be passed in such a suit. Section 35 ibid reads as follows:-- "35. Repeal.--- (1) The North-West Frontier Province Pre-emption Act, 1950 (N.-W.F.P. Act XIV of 1950), is hereby repealed.
(2) In the cases and appeals filed under the Law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act."
9. It is quite clear from reading of subsection (3) of section 35 ibid, that where the suit was instituted under the N.-W.F.P. Pre-emption Act, 1950 but the right is claimed under Act X of 1987, the same could be decided. In the instant case, the compromise between the appellants and Haji Shabbir Khan was entered into on 8-9-1988 after the enforcement of Act X of 1987 and as such it was open to vendee Haji Shabbir Khan to have given up his adjudication as to the validity of suit on account of absence of Talb. Therefore, the consequent decree passed in the case on 8-9-1988 was a decree passed under Act X of 1987 which could not be set aside on the ground that the appellants had not raised 'Falb' in the suit. The rule laid down by this Court in Syed Kamal's case and Rozee Khan's case, supra, is not attracted in the peculiar facts and circumstances of the present case.
10. We, accordingly, allow this appeal, set aside the impugned judgment and decree of the High Court and restore the judgment and decree of the trial Court, dated 20-2-1991. In the circa mstances of the case, there will however, be no order as to costs.
11. (Sd.)
12. ' Saiduzzaman Siddiqui, J.
13. (Sd.)
14. ' Fazal Ilahi Khan, J.
15. ' My dissenting judgment placed below.
16. (Sd.)
17. ' Mukhtar AhmeJ Junejo, J.
18. ' MUKHTAR AHMED JUNEJO, J.--- I have had the advantage of going through the judgment proposed to be delivered in this case by Saiduzzaman Siddiqui, J. For whom I have high regard and whose learning about law and whose wisdom cannot be doubted. However, for the reasons to be given below in this note, I am unable to persuade myself to agree with the view taken in the said judgment about legality of continuance of the proceedings of the pre-emption suit beyond 28-4- 1987 viz. The date on which the N.-W.F.P. Pre-emption Act, 1950 (hereinafter mentioned as the Act of 1950) was repealed by section 35 of the N.-W.F.P. Pre-emption Act, 1987 (hereinafter mentioned as the Act of 1987).
19. ' It is an admitted position that Allah Wasaya (predecessor of the appellants Nos.1 to 8) and Haji Muhammad (appellant No,9) filed the suit on 25-3-1985 for pre-empting sale of suit land by Mst.
20. Jamila, Muhammad Yasin and Mst. Assia Bibi in favour of Haji Shabbir Shah (respondent No,1) and Haji Abdullah, predecessor of respondents Nos.2(i) to 2(vi), under the Act of 1950.
21. ' It is an admitted position that till 31-7-1986 viz. The date fixed by Shariat Appellate Bench of this Court in Malik Said Kamal Shah's case PLD 1986 SC 360 no decree was passed in the suit filed by Allah Wasaya and Haji Muhammad. A partial compromise decree was passed against Haji Shabbir Khan on 8-9-1988 but the same was set aside on 3-1-1989 and again passed on 20-2-1991 and again set aside on 11-7-1991.
22. ' The legal objection about abatement of the suit on coming into force of the Act of 1987 was raised by Mr. Abdul Aziz Kundi, learned counsel for the respondents who strenuously argued that since the suit was filed by Allah Wasaya and Haji Muhammad under the Act of 1950 without making of Talbs and since no decree was passed in the suit till 31-7-1986 or till coming into force of the Act of 1987, hence said suit legally stood dismissed in pursuance of the provisions contained in subsection (3) of section 35 of the Act of 1987. The learned counsel for the respondents did not agree with the view that the condition of Talbs can be dispensed with by consent of the parties and referred to the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1. The learned counsel for the respondents also cited the cases of Sardar Ali v. Muhammad Ali PLD 1988 SC 287, Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 and Rozi Khan v. Said Karim Shah 1992 SCM R 445.
23. ' Mr. Saeed Baig, learned counsel for the appellants argued inter alia that notwithstanding the provisions contained in the Act of 1987, the compromise decree passed on 8-9-1988 and again on 20-2-1991 cannot be invalidated and that the condition of making Talbs before exercising right of pre-emption can be waived by a party. In support the learned counsel cited the cases of Mst.
24. Kharo v. Sher Afzal 1992 SCM R 1844 and A.R. Khan v. P.N. Boga PLD 1987 SC 107.
25. ' Before considering if suit filed by Allah Wasaya and Haji Muhammad abated on coming into force of the Act of 1987, it would be advantageous to reproduce the provisions contained in its section 35.
26. It reads as below:-- "35. Reveal.--- (1) The North-West Frontier Province Pre-emption Act, 1950 (N.-W.F.P. Act XIV of 1950), is hereby repealed.
(2) In the cases and appeals filed under the Law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act."
27. Admittedly suit of Allah Wasaya and Haji Muhammad was pending on 28-4-1987 viz. The date on which the Act of 1987 including its section 35 was published in Government Gazette. Hence as per subsection (3) of section 35 of the Act of 1987, the said suit stood dismissed in the eyes of law.
28. Consequently on 8-9-1988 no suit was pending in which a compromise decree could be passed and thus such a decree would be void and nullity in law. In the case of Rozi Khan 1992 SCM R 445 the decree in favour of the pre-emptor was passed on 16-5-1983 much before the enactment of the N.-W.F.P. Pre-emption Act, 1987 and also much earlier to the judgment in the case of Said Kamal Shah PLD 1986 SC 360 which made the provisions of the Act of 1950 ineffective from 31-7- 1986. Case of Rozi Khan was found covered by section 35(2) of the Act of 1987 and not covered by subsection (3) of section 35. But the preemption suits in which no decree was passed by 31-7-1986 and no Talbs were claimed to have been made, were found to have been rightly dismissed. In the case of Muhammad Shabbir Ahmed Khan PLD 1994 SC 1 it was held that section 35(2) of Punjab Pre-emption Act, 1991 is repugnant to the Injunctions of Islam in so far as it exempts the cases pending or instituted during the period from 1-8-1986 to 28-3-1990 from the requirements of Talb- iMuwathabat and extends the right of limitation for them up to one year. Punjab Pre-emption Act, 1913 was rendered ineffective from 31-7-1986, as observed in the case of Muhammad Shabbir Ahmed Khan PLD 1994 SC 1. In the case of Sardar Ali PLD 1988 SC 287 the case of Said Kamal Shah was referred and it was held that a pre-emption suit not decided by the trial Court before 31-7- 1986 could not be decreed after the said date. In light of the observations made in the aforesaid cases, it is crystal clear that in the instant case no decree could be passed after 31-7-1986 even with consent of the parties.
29. ' It would be preposterous to accept contention of learned counsel for the appellants that a suit which by operation of law stood dismissed on coming into force of the Act of 1987 on 28-4-1987, could be kept pending on the file of Court after said date because a compromise was to take place in such a suit and that making of Talbs could be waived by the vendee. Such a view would militate against the language and spirit of subsection (3) of section 35 of the Act of 1987. The learned counsel for the appellants cited the case of Mst. Kharo and others 1992 SCM R 1844 where it was observed that the question of Talbs is the basic and fundamental issue in every pre-emption case under the Islamic dispensation. It was also observed that depending upon facts and circumstances of each case, it is essentially a question of fact whether or not the requisite Talbs were made by the plaintiff and all the conditions regarding thereto were satisfied and that being so, it is the will and choice of the vendee in such a matter to raise or to give up the plea regarding Talbs which otherwise can be raised without any hindrance subject again to the availability of such a plea on merits.
30. ' In my humble view case of Mst. Kharo does not cover the instant case, whose pendency in a Court of law after 28-4-1987 was contrary to the provisions contained in section 35(3) of the Act of 1987.
31. In the cited case the pre-emption suit was filed under the Act of 1987. As regards making of Talbs it has been observed in the case of Rozi Khan 1992 SCM R 445 that a law of `Shufa' devoid of this essential element about Talbs would be against Sunnah and hence against the Injunctions of Islam and that demand of pre-emption is an integral part of the right of pre-emption. In Said Kamal Shah's case PLD 1986 SC 360 the requirement of Talbs was held to be a sine qua non for the enforcement of right of pre-emption recognised by the Muslim Law and its non-compliance had the effect of extinguishing the pre-emptive right of such pre-emptor. In the case of Muhammad Shabbir Ahmed Khan PLD 1994 SC 1 it was held that requirement of all the three Talbs forms a substantive part of Islamic Law of pre-emption and failure to make Talbs at their proper time results in extinguishing the very right of pre-emption. In the same case it was also held that all the three Talbs are the substantive part of the Islamic Law of pre-emption and once such principle was established, no concession in this respect is justified from the Shariah view point. Lastly the learned counsel cited the case of A.R. Khan PLD 1987 SC 107 where it was held that compromise between the parties is a lawful method of disposing of a matter brought before a Tribunal or Court and it has sanctity and efficacy. There can be no cavil with the observations made in the cited case but it will have no application to the instant case, because even if there is compromise in the proceedings which are coram non judice, the compromise would have little value.
32. In the instant case no pre-emption suit was pending in the eyes of law after 28-4-1987 and consequently compromise between the parties in said suit after said date on 8-9-1988 could not have validated the proceedings which had become invalid after 28-4-1987. In this view of the matter, I am of the view that suit of Allah Wasaya and Haji Muhammad filed on 25-3-1985 under the Act of 1950 stood dismissed in the eye of law on 28-4-1987 and consequently there is no substance in this appeal which merits dismissal.
33. (Sd.)
34. ' Mukhtar Ahmed Junejo, J ' ORDER OF THE COURT ' By majority, the appeal is allowed and the impugned judgment and decree of the High Court is set aside. The judgment and decree of the trial Court, dated 20-24991 is restored but there will be no order as to costs.
35. (Sd.)
36. ' Saiduzzaman Siddiqui, J (Sd.)
37. ' Fazal Ilahi Khan, J (Sd.)
38. ' Mukhtar Ahmed Junejo, J