Brief facts axe .That the respondents purchased the land in dispute vide registered Sale-Deed No. 301 dated 8-11-1987 for an ostensible sale price of Rs. 9,00,000 (Rupees - nine lacs). The petitioners filed a pre---emption suit against .The defendants wherein it was averred that the respondents had in fact purchased the suit land for a consideration of Rs.1,00,000 (Rupees one lac) and an amount of Rs.9,00,000 was fictitiously incorporated in the registered deed. It was alleged that the petitioners had got a superior rights of pre-emption as compared with the respondents. It was further submitted that the petitioners had successfully fulfilled the requirements of Talabs as well.
The respondents/defendants filed the written statement wherein they controverted these allegations. They preferred an application under Order 7, rule 11, C.P.C. On 8-12-1991, wherein it was averred that since Talabs were not proved in accordance with law and the suit was filed after the prescribed period, the suit was, therefore, not maintainable. The learned' trial Court placing reliance upon PLD 1990 Supreme Court 865 (Shariat Appellant Bench) dismissed the suit of the petitioners on the ground that since no law of pre-emption existed during the period i.e. 31-7-1986 to 28-3- 1990, the-suit was not maintainable. An appeal was filed in the Court of learned Additional District Judge; which was also dismissed.
2. Learned counsel for the petitioners submits that the suit could not be dismissed by the learned trial' Court on the ground of non --maintainability. He further submits that the findings of first Appellate Court that the suit was time-barred was without any lawful basis. It was further argued that the suit could not be dismissed without framing of the issues and recording of the evidence.
3. It was mentioned in the plaint that the suit property was purchased by the respondents vide registered Sale-Deed No. 301, dated 8-11-1987. It emerges from the perusal of the suit that the suit was instituted on 8-11-1988. The petitioner himself alleged that the suit was filed under Punjab Pre- emption Act. 1913. Relevant portion of paragraph 2 of the plaint reads as follows:--- "That no notice of sale in question was issued to the plaintiffs as envisaged by provisions of Punjab Pre-emption Act, 1913."
4. Section 30 of the Punjab Pre-emption Act, 1913 was declared as against the Islamic Injunctions and therefore, this suit filed almost after one year of the registration of the sale-deed was hopelessly time-barred. Reliance can be made to 'Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 (Shariat Appellant Bench) wherein it was held that the law of limitation was a' substantive law. It was further observed that the period provided under section 30 of Punjab Pre-emption Act. 1913 was .Not in accordance with the Islamic law. The observation made therein in the last formal part is as follows:---
5. In Suo Motu Shariat Review Petition No.1 -R of 1989: PLD 1990 SC 865 (Shariat Appellant Bench), following observation was made:---
6. Section 30 of the Punjab Pre-emption Act, 1991 reads as follows:--- "30. Limitation. ---The period of limitation for a suit to enforce a right of pre-emption under this Act shall be four months from the date---
(a) of the registration of the sale-deed;
(b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale- deed;
(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or a mutation; or .
(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c).
7. In Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 section 35(2) of Punjab Pre-emption Act, 1991 was declared as repugnant to Injunctions of Islam. The relevant portion of the judgment is as follows:--- "(iii) Section 35(2) in so far as it exempts the suits of pre-emption instituted or pending between 1st day of August, 1986, and 28th March, 1990 from the requirements of Talab-i-Muwathabat and because they have extended the period of limitation for such suits to one year.
The Appeal No. 12 of 1991 filed by the Government of regard to these three sections is dismissed."
8. Even if any Islamic Law of Shufa was prevalent, that if any abovementioned intervening period, I am of the considered opinion, that would suit was filed after the expiry of four months during the said period that would be regarded as time-barred.
9. Under these circumstances it will be a futile exercise would be the case because even if that procedure is adopted, the result is hereby same. Therefore, this petition is without any substance and is hereby dismissed.