1. ' MUKHTAR AHMAD JUNEJO, J.---Leave to appeal is sought against a judgment dated 6-10-1994 delivered by the Peshawar High Court in Civil Revision No,397 of 1989.
2. ' In order to pre-empt sale of the suit property viz. 15 kanals and 8 Marlas of Khasra Nos.743 and 757 of Village Lahore Raporey, District Swabi by Mst.Hussena to respondent Haji Faqir Muhammad, petitioner Mst.Basriya filed Suit No,6/1 in a Civil Court at Swabi on 11-1-1987 for pre-emption under N.-W.F.P. Pre-emption Act, 1950 (N.-W.F.P. Act XIV of 1950) which was repealed by section 35(1) of North-West Frontier Province Pre-emption Act,1987 (hereinaft-r mentioned as the Act of 1987).
3. Unlike said Act XIV of 1950, the Act of 1987 made making of Talbs viz. Talb-i-Muwathibat, Talb- iIshhad and Talb-e-Khusumat mandatory before instituting a suit for exercise of right of pre- emption and such provisions were incorporated in its section 13. The net result of all this change in law was, that after coming into force of the Act of 1987 viz. 28-4-1987, a pre-emption suit without Talbs cannot proceed at all and its plaint is liable to be rejected, although such a suit could proceed under the Act XIV of 1950 before its repeal by the Act of 1987. Despite repeal of the Act XIV of 1950 the judgments and the decrees passed under it and having become final would be governed, for the further proceedings, by said Act of 1987 and not by the Act of 1950 as per subsection (2) of section 35 of the Act of 1987. In respect of effect of introduction of new law on the pending suits and appeals, necessary provision was made in subsection (3) of section 35 of the Act of 1987, which reads as below:--- "35(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."
4. ' Petitioner's Suit No,6/1 of 1987 was contested by the respondent and one Shaukat Ali. After settlement of issues and recording of evidence of the parties, learned Additional Civil Judge, Swabi under his judgment dated 19-7-1988 dismissed the suit after taking view that alienation of the suit land in favour of the respondent was by way of exchange which was exempt from preemption and that the petitioner had equal right of pre-emption with the vendee. Being aggrieved, the petitioner unsuccessfully filed appeal as well as revision against the said judgment, but the same were dismissed on 22-6-1989 and 6-10-1994 by the Additional District Judge, Swabi and the Peshawar High Court, respectively. Hence this petition for leave to appeal.
5. ' Mr. Muhammad Waris Khan, learned counsel for the petitioner prayed that the petitioner be allowed to withdraw her Appeal No,100/I of 1988 which was decided on 22-6-1989 and that the judgment and the decree of the trial Court be revived. On being pointed out that an appeal, which was already decided, could not be withdrawn, the learned counsel proceeded to argue that an Appellate Court was not competent to take back from the petitioner a relief which was granted to her by the trial Court. Lastly, it was argued that once the petitioner had validly filed the suit for pre- emption under the N.-W.F.P. Act XIV of 1950, it had to reach its logical and unaffected by the change in law.
6. ' A copy of the judgment dated 19-7-1988 delivered by the trial Court in Suit No,6/1 of 1987 is lying in the paper book at page 26. It does not show if the trial Court decreed the entire suit or a part of it. It appears that there is misconception about a part of the suit having been decreed. Even otherwise the Courts below appear to have taken correct view about effect of the change in law. Petitioner's suit was admittedly filed on 11-1-1987 when N.-W.F.P. Act XIV of 1950 was in force. Said suit was, therefore, covered by subsection (3) of section 35 of the Act of 1987. Consequently said suit stood dismissed by operation of law, on coming into force of the Act of 1987 unless the petitioner had claimed in said suit her right of pre-emption under the provision of the Act of 1987 including its section 13 making it mandatory for a pre-emptor to make the Talbs mentioned therein before invoking the right of pre-emption. Perusal of the plaint (copy at page 17) filed by the petitioner in Court on 11-1-1987, does not show if the petitioner made the talbs in the way prescribed. By section 13 of the Act of 1987 before filing the suit. Making of talbs prescribed by section 13 of the Act of 1987 was not necessary in a suit for pre-emption filed under N.-W.F.P. Act XIV of 1950. The suit filed by the petitioner was pending on 28-4-1987 when Act of 1987 came in force. Consequently, this suit was hit by the provisions contained in subsection (3) of section 35 of the Act of 1987.
7. ' In the case of Muhammad Ashraf and 14 others v. Ziarat Gul (PLD 1994 Peshawar 48) suit for pre- emption was filed on 24-10-1992 under N.-W.F.P. Act XIV of 1950 and it was dismissed on 2-12-1985 and the appeal against dismissal was dismissed by the District Judge on 28-9-1986 and the Civil Revision against the dismissal of appeal was decided on 6-2-1988 by compromise and the view taken was that the compromise decree dated 6-2-1988 being without the mandatory requirement of Talbs, the same was contrary to law and was void and nullity in law. In the said case it was observed that the judgment and the decree dated 28-9-1986 of the District Judge was on the force of N.-W.F.P. Act XIV of 1950 which had ceased to exist on 31-7-1986 and consequently there was no judgment and decree under the law, which could be impugned in the revision. It was also held that the compromise decree dated 6-2-1988 cannot be deemed to be a decree under the Act of 1987 as the right of exercise of pre-emption was not claimed under the said Act and the Talbs, as mentioned under section 13 of the Act of 1987 had not been established. In said case reliance has been placed on the case of Rozi Khan and others v. Syed Karim Shah and others (1992 SCMR 445) where it was held that all suits and appeals which were instituted under the N.-W.F.P. Act XIV of 1950 and which immediately before the commencement of the Act of 1987 were pending before a Court will lapse, in which the right of pre-emption is not claimed under the provisions of new Act of 1987.
8. ' Learned Judge in Chamber while dismissing the Civil Revision No,397 of 1989 filed by the petitioner against the respondent took view as follows:--- ...The august Supreme Court of Pakistan in the case of Rozi Khan v. Syed Karam Shah (1992 SCMR 445) has held that no decree can be passed under the N.-W.F.P. Pre-emption Act, 1950 after the enactment of N.-W.F.P. Pre-emption Act X of 1987. In the case of Muhammad Ashraf and others this Court held that a decree passed under the N.-W.F.P. Pre-emption Act, 1950 after 28-4-1987 is nullity in law."
9. ' A correct approach appears to have been made in the High Court, leaving nothing for the petitioner to agitate in this Court. No case is made out for grant of leave to appeal and this petition stands dismissed.