' The above-captioned two appeals have been filed against the order passed by the District Judge, Mirpur, on October 29, 1994. As the identical question of law arising out of the pre-emption matter is involved, therefore, these are disposed of by this common order.
2. The facts forming the background of these appeals are that the suit land was alienated by Ghulam Nabi son of Shahabuddin, in favour of Muhammad Hussain, defendant-respondent, through a sale-deed executed on July 29, 1987. Two pre-emption suits, one by Mst. Maneeza Bi, plaintiff-appellant and the other by Muhammad Yusuf, plaintiff-appellant were filed in the Court of Sub-Judge, Dadyal on July 17, 1988 and July 20, 1988 respectively. The suits were resisted by the vendee-respondent and number of issues on the basis of pleadings of the parties was framed. The parties led their evidence in support of their respective claims. The trial Court after hearing the parties dismissed both the suits, particularly keeping in view the amendment incorporated in the Azad Jammu and Kashmir Right of Prior Purchase Act through an Amendment Act of 1993. Both the pre-emptors filed appeals before the District Judge, Mirpur who also dismissed the same. The instant appeals have been preferred against the aforesaid order.
3. Mr. Nazir Ahmed Ghauri, the learned counsel for Muhammad Yusuf, plaintiff-appellant frankly conceded before the Court that after the pronouncement of the Supreme Court's judgment in Fazal Dad's case (Fazal Dad v. Khadim Hussain and another, decided on April 24, 1995), there remains no case for the appellant to agitate before this Court. Elaborating his point of view, the learned counsel explained that the pre-emption suit is based on two grounds: i) that plaintiff is owner in the village; and (ii) that the lands of the plaintiff are contiguous to the suit land. The vendee, according to the learned counsel, has proved his status by purchasing the land in the village and the other ground s no validity in the eye of law applicable in the case of above referred plaintiff-appellant.
4. Ch. Muhammad Azam Khan, the learned counsel for Mst. Maneeza plaintiff-appellant raised the following points, in support of assertions:---
(i) that the plaintiff-appellant is the real daughter of vendor and has got prior right of purchase, whereas the vendee has no relation, what so ever with the above mentioned vendor;
(ii) that the amendment introduced through the Act of 1995 in the Azad Jammu and Kashmir Right of Prior Purchase Act, has no application the appellant's case as the right has already accrued in his favour an the law already holding the field remains applicable to the case in hand. The learned counsel referred to Fazal Dad's case (Fazal Dad v. Khadi Hussain and another, decided on April 24, 1995) in support of hi contentions.
5. On the other hand, Khizar Ali Muhammad, the learned counsel for the respondents maintained that the pre-emptor has to establish his case at three stages, i,e, (i) at the time of execution of sale-deed, (ii) at the time of filing the pre-emption suit; and (iii) at the time of trial Court's decree.
The amendment i,e, the Act of 1993 came into existence before the passing of any order by the trial Court. Therefore, it was argued that the appellant lost his right of price purchase keeping in view the amending law which does not recognize the rig of prior purchase on the ground the suit of Mst.
Maneeza Bi was based. The learned counsel also argued that the judgment recorded in Fazal Dad's case dolt squarely apply to the facts of these cases. The learned counsel referred t AIR 1935 Lahore 529, PLD 1978 SC (AJ&K) 126 and PLD 1978 SC 297, support of his assertions. However, the learned counsel did not contest the rig of Mst. Maneeza Bi, plaintiff-appellant if the law before the amend me prevailed. The relation of the above pre-emptor as daughter to the vendor was admitted.
6. I have heard the learned counsel for the parties and also gone throng the record. It is agreed between the parties that the sale-deed was executed o July 29, 1987 and the pre-emption suits were filed on July 17, 1988 and July 20 1988 by Mst. Maneeza Bi and Muhammad Yusuf, plaintiff- appellant respectively. The suit of Mst. Maneeza Bi was based on the ground that she is real daughter of the vendor and the vendee-respondent has no relation with him while the suit of Muhammad Yusuf was filed on the ground of his ownership the village and also on the ground of his land being contiguous to the suit land The amendment was made in the relevant Act before passing any order by th trial Court.
7. The first question to be resolved in the matter in issue is whether parties shall be governed by the law already holding the field or the incorporated through amendment in the above Act. It would be appropriate reproduce the law prevailing before and after its amendment, with regard to section 14 of the Right of Prior Purchase Act:-- "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 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 agnates 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 have 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 the 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 agnates in this section shall mean the agnates of the person to whom she has to succeeded."
"2. Amendment of section 14, Act II of 1993 (Bikrami).---In the Right of Prior Purchase Act, 1993 (Act H 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. "Shaft Sharik" means ....
2. "Shafi Khalil" 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..
8. The survey of the Full Court judgment in Fazal Dad's case referred to above ends the controversy involved in pending cases where decree has been passed or not by the trial Court or the persons in whose favour the right already accrued before the amendment was brought into existence. It would be appropriate to reproduce the relevant observation which is in the following words:--- "---The result of the foregoing is that section 14 on which grounds Nos.(i) and (ii) of the plaint (being a 'Yakjadi' and ownership in the village) were based has been repealed but it continues to be operative for pending cases and the suit will be continued and decided in light of the repealed provisions. However, the position about grounds Nos.(iii) and (iv) still remain to be examined. These grounds were based on contiguity, commonness of thoroughfare and water source. These grounds were not recognised by unamended section 14 and were incorporated by way of substitution on 13th of March, 1993. It means that these rights were not recognised by law when the sale-deed was executed and the suit was filed.
' As discussed elsewhere the effect of substitution of section 14 is that the new section shall be deemed to have been legislated on 13th of March, 1993 when the Amendment Act was enacted.
Since the law was not in force when the sale-deed under dispute was executed, the rights granted by the new section cannot be made available to the respondent-plaintiff. The fact that respondent-plaintiff had in his plaint included these grounds does not make any difference in legal position."
9. Keeping in view the observation made by the Supreme Court in t above-referred case, it can safely be resolved that the law holding the fig 1 before its amendment remains applicable and the rights of the parties shall determined accordingly. According to old section 14 of the Right of Purchase Act, the prior right of Mst. Maneeza Bi, plaintiff-appellant is n disputed, rather it is admitted in the written statement and the learned counsel he course of arguments, also did not dispute the above relationship of the appellant and a right under that law. Therefore, both the judgments of the District Judge and Sub-Judge are against the spirit of the Supreme Court's judgment. The point raised by the learned counsel for the respondent with regard to the establishment of a right at 3 stages has been sufficiently met by the Supreme Court in its judgment and the cases referred to by the learned counsel for the respondent have also been discussed.
Therefore, the point merits no consideration, as such the appeal of Mst. Maneeza Bi, plaintiff- appellant is accepted awl the orders of District Judge and Sub-Judge to her extent are set aside.
The suit of Mst. Maneeza Bi, plaintiff-appellant stands decreed against the defendant-respondent on payment of Rs,5,00,000, the sale price and other expenses of the sale-deed as there is no dispute about the cosideration amount. The above amount shall be deposited with the trial Court, if not deposited earlier within 60 days from the date of announcement of this judgment, otherwise the suit shall be deemed to be dismissed. However, the appeal of Muhammad Yusuf fails as the plaintiff-appellant, according to law applicable to his case, has failed to substantiate his case and rightly conceded so by his counsel, with no order as to costs.