CHAUDHARY MUHAMMAD TAJ, J.- Respondents are absent despite service, ex-parte proceedings are ordered against them, as such ex-parte arguments were heard.
2. This second appeal has been filed against the order passed by the District Judge. Mirpur, on July, 26, 1995, whereby the appeal filed against the order of Sub Judge, Dadyal, was dismissed.
3. The facts giving rise to the present appeal are that a suit for possession by pre-emption was tiled by the predecessor-in-interest of plaintiff-appellant and proforma-respondents No. 2 and 3, on August 21, 1986 on the basis of against of vendor, in the Court of Sub Judge, Dadyal. The suit was resisted by the defendant- respondent. Due to some interlocutory matters, it remained pending and meanwhile the Prior Right of Purchase Act was amended through an amendment in 1993. The learned trial Judge in view of the amendment brought in the Act, rejected the suit of the plaintiff on December 3, 1994. An appeal filed before, the District Judge Mirpur. Also met the same fate. Hence this second appeal.
4. Raja Habibullah Khan, the Learned Counsel for the appellant maintained that the Act though was repealed, but it did not affect the pending proceedings, it was also argued that the right already accrued shall not be affected by the sub-sequent amendments in the Act. The Learned Counsel referred to the case titled 'Fazed Dad ts. Khadim Hussain and another' decided by the Supreme court of Azad Jammu and Kashmir, on April 24, 1995, in support of his assertions.
5. I have heard the learned Counsel for the appellant and also gone through the record. The pre- emption suit was filed on August 2I, I986 whereby the sale deed executed on August 2I, 1985 was pre-empted. The suit was based on the ground that the plaintiff is the father of the vendor, as such is entitled to the right of prior purchase, under Section 14 of the Right of Prior Purchase Act. The Right of Prior Purchase Act was amended by an enactment known as Azad Jammu and Kashmir Right of Prior Purchase (Amendment) Act, 1993 which became the law on March 13, 1993 whereby Section 14 of the above Act was substituted.
6. To appreciate the controversy, it would be appropriate to reproduce Section 14 of the Act as it was before its amendment and after the same was amended;- "S.14. Subject to the provisions of section 13 the right of prior purchase in respect of agricultural land and village immovable property shall vest:-
(a) Where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of successions, who but for such sale would be entitled on the death of the vendor or vendors to inherit the land or property sold;
(b) when the sale is of a share out of a joint property and is not made by all the co-sharers jointly:- Firstly- In the lineal descendants of the vendor-in order of succession; Secondly- In the co-sharer, if any, who are against in order of succession; Thirdly- In the persons, not included under firstly and secondly above, in order of succession, who but for such sale, would be on the death of the vendor entitled to inherit the land or property sold; Fourthly- in the co-sharers.
If no person having a right Of pre-emption under clauses (a) and (b) exercises, it then:- Firstly- in the owners of the mahal wherein such agricultural land or property is situate; Secondly- in title tenants having the right of occupancy within the property or agricultural land that is being sold.
Explanation: in the case of a sale by a. Female of land or property, to which she has succeeded for her life tenure through her husband, son. Brother or father, the word against in this section shall mean the against of the person to whom she has to succeed".
Amended Section 14, Right of - Prior Purchase Act.
"2. Amendment of Section 14, Act 11 of 1993 (Bikrami)-- in the Right of Prior Purchase Act, 1993 (Act II of 1993 Bikrami) for Section 14, the following shall be substituted, namely:- "14. (1) Subject to the provisions of Section 13 the Right of Prior Purchase in respect of agricultural land and village immovable property shall vest.-
(a) firstly in Shafi-Sharik;
(b) secondly in Shafi Khalit, and
(c) thirdly in Shafi Jar.
Explanation:-
1. "Shafi Sharik" means ....................
2. "Shafi Khalit" means......................
3. "Shafi Jar" means,........................
(2) Where all the clauses .......... ......
(3) Where there are more.................
(4) Where there are more...................
(5) A participator in the ...................."
The controversy with regard to the fate of pending cases before the amendment brought in the Right of Prior Purchase Act in 1993, was resolved through the judgment pronounced by the Supreme Court of Azad Jammu and Kashmir in a case titled "Fazal Dad Vs. Khadim Hussain and another" decided on April 24, 1995. Wherein an appeal by way of leave filed on behalf of defendant to dismiss the plaintiffs suit on the basis of an amendment brought in the Act through the Act of 1993. In a suit filed on the basis of Section 14 of the Right of Prior Purchase Act. Was disallowed and the suit was directed to be proceeded according to law.
7. The present suit was also held to be dismissed on the ground of amendment, in Section 14 of the Right of Prior Purchase Act. It appears that the learned District Judge passed the impugned order without looking into the judgment of the Supreme Court which holds the field presently and is to be followed by all the Courts. Therefore, the orders passed by the District Judge and Sub Judge which run counter to the law settled by the Supreme Court, are hereby set aside accepting the appeal.
The case is remanded to the trial Court with the direction to proceed with it in accordance with law.
No order as to costs.