' Taj Muhammad plaintiff/petitioner herein, filed a suit for possession through pre-emption of land bearing Khasra No, 3026 measuring 11 Kanals, 2 Marlas, situated in Sarai Saleh, Tehsil Haripur on payment of Rs,1,000 or price fixed by the Court, on the ground of being a co-sharer in the suit land and also being a contiguous owner. The defendants-respondents contested the suit stating that they purchased the land for Rs,25,000 for residential purpose and is thus exempted from pre- emption. On the basis of the pleadings of the parties the following issues were framed:---
(1) Whether the plaintiff has got a cause of action?
(2) Whether the sale is exempt from pre-emption under section 5(c) of the Pre-emption Act?
(3) Whether the addresses of the defendants have incorrectly been given in the plaint, if so, its effect?
(4) Whether the defendants have made improvements in the form of houses, if so, how much and to what effect?
(5) Whether the plaintiffs have got a superior right of pre-emption?
(6) Whether the sum of Rs,25,000 has been. Fixed in good faith or actually paid?
(7) Market value?
(8) Relief.
2. The parties adduced their respective evidence, on assessment whereof the learned trial Court vide its judgment/decree dated 25-2-1986 passed a decree for possession through pre-emption in favour of the plaintiff on payment of Rs,19,658 as sale consideration and payment of Rs,1,000 as improvements. Feeling aggrieved of the said judgment/decree of the Civil Judge-II, Haripur, the defendants filed an appeal before the Additional District Judge-II, Haripur who vide his judgment/decree dated 24-7-1986 set aside the impugned judgment/decree of the learned trial Court and remanded the case back to it with the direction to appoint guardian ad litem for minor defendants Nos.3 and 6 namely, Afzal and Farnad and then to decide the case afresh according to law. After remand the suit was dismissed by the learned Civil Judge, Haripur vide his order dated 13-2-1989 on the ground that no decree can be passed for want of 'Talab' but on appeal, the learned Additional District Judge, Haripur vide his judgment/decree dated 12-3-1990 set aside the judgment/decree of the trial Court and remanded the case back to the learned trial Court directing its disposal in accordance with law. The learned trial Court once again vide its judgment/decree dated 2-6-1991 dismissed the suit, which was maintained by the learned Additional District Judge, Haripur vide his judgment/decree dated 8-9-1992, which is impugned herein.
3. Learned counsel for the petitioner contended that the petitioner was granted decree of pre- emption on 25-2-1986 i,e, much before the target date 31-7-1986, hence his right of pre-emption had been recognised, as such even the reversal of decree before the target date would not affect his rights of preemption, and he can be granted pre-emption decree.
4. On the other hand learned counsel for the respondents submitted that since the judgment/decree dated 25-2-1986 was set aside by the Appellate Court on 24-7-1986 i,e, before the target date of 31-7-1986, therefore, no. Decree can be passed in any suit of pre-emption without Talabs', and in absence thereof the right of pre-emption extinguishes.
5. I have duly considered the submissions of the learned counsel for the parties and have gone through the record of the case. Admittedly the decree passed on 25-2-1986 stood set aside before the target date of 31-7-1986 whereafter according to law laid down in Said Kamal Shah's case PLD 1986 SC 360 that in any suit for pre-emption in which decree was passed before 31-7-1986; such proceedings were to be regulated according to pre-emption law then in force but in suits where decree has not been passed in favour of the preemptor before the target date, the same could not be decreed thereafter. Repealing section of N.-W.F.P. Pre-emption Act, 1987 reads as under:--- "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 Court 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."
6. This section came under consideration before the august Supreme Court of Pakistan in Rozi Khan and others v. Syed Karim Shah and others 1992 SCM R 445 wherein it was interpreted as under:--- "While considering this question this Court observed that 'this section envisages pendency of appeals and cases against the judgments and decrees which have become final'. And the question arose as to what is the true meaning of the word 'final'? After referring to the meaning assigned to the word final' and the meaning given to the expression 'final decision' in Black's Law Dictionary the conclusion reached was that the word ' final' in this section meant the ' judgment or decision which terminates action in Court which renders it'. This word was understood in the same sense by this Court even in an earlier case Rizvi v. Maqsood Ahmad PLD 1981 SC 612 and this Court had given a similar meaning to these words. It was said in that case: ' An order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc. In view of the foregoing we are inclined to hold that the words ' judgments and decrees passed by the Courts have become final' in subsection (2) of section mean 35 me 'those judgments and decrees wherein the suit of the pre-emptor has been decreed by the Courts rendering it'. In so thinking we are fortified by the circumstance that this Court has always understood and consistently expounded the concept of finality in Pre-emption statutes on this premises. (See inter alia, Bibi Jan v. R.A. Monny PLD 1961 SC 69 at pages 75/76, Sardar Ali v.
Muhammad Ali PLD 1988 SC 287 at page 354).
' In the light of the foregoing, the effect of the provisions of section 35 of the new Islamic Law of Pre- emption, in our opinion, is that if at the time of the enforcement of the Islamic Law of Pre-emption (i,e, 1-8-1986 when the principles of the Islamic Common Law became applicable in the absence of any statutory law or after 28-4-1987 when Act X of 1987 was promulgated) a final decree in the sense explained above (namely a decree in favour of the plaintiff pre-emptor) had already been passed and an appeal against it was pending (which is a further proceeding relating to the case in which the decree was passed), the said further proceedings shall be governed and decided under the provisions of the old Act (N.-W.F.P. Pre-emption Act, 1950) and the provisions of Act of 1987 would not be attracted. Similarly, if a final judgment (decreeing the suit of the plaintiff/pre-emptor) had been passed before the aforesaid dates and the said judgment was being challenged before the revisional Court or the High Court in its writ jurisdiction such proceedings too shall be governed by and decided under the provisions of the old Pre-emption Law enacted in the 1950 Act.
' The submission that only such a decree can be considered to be a final where all the legal remedies provided for its challenge and in fact resorted to, have been exhausted and is not confined to the judgment and decree of the Court rendering it or in other words a final judgment implies the judgment or the decree of the highest forum to which the case is taken cannot be accepted. Indeed such an interpretation would defeat the provisions of subsection (2) of section 35 of the 1987 Act. This subsection provides that ' 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. Now, if the highest forum has finally decided a case nothing would remain to be done thereafter except, perhaps, the attestation of mutations and the execution of the decree. However, for such proceedings distinct procedure has been laid down in other statutes such as the Land Revenue Act and Civil Procedure Code."
7. In the case in hand since the judgment/decree dated 25-2-1986 was set aside and there was no judgment/decree which had become final, therefore, it could not be governed and continued under the Repealed Act XIV of 1950. Subsection (3) of section 35 of the new Act ibid provides that other cases and appeals not covered under subsection (2) of section 35 of Act, 1987 instituted under the old law which were pending before a Court before the commencement of the new Act shall stand dismissed except those in which, the right of preemption is claimed under the provisions of new Act. Section 13 of the new Act provides that where demand Talab' of pre-emption as provided under the said section has not made as prescribed therein, the right of pre-emption shall extinguish. As no prescribed demand has been made in this case, therefore, the right of pre- emption shall extinguish, As no prescribed. Demand has been made in this case, therefore, the right of pre-emption shall stand extinguished and the suit is liable to be dismissed under subsection (3) of section 35 of the Act ibid.
8. In view of the above this revision petition being devoid any merit is dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.