' ABDUR REHMAN KHAN, J.---This appeal with leave of the Court impugns the legality of the judgment passed on 24-5-1993 by a learned Judge of Peshawar High Court, whereby, the revision petition of the appellants against the judgment and decree of the learned Appellate Court dated 15-7-1991, was dismissed.
2. The relevant portion of the leave granting order dated 18-12-1993 is reproduced for better understanding of the point involved in the appeal: "Mr. Bashir Ahmad Ansari, learned counsel for the petitioners, contended that the decree passed in 1984 had not attained finality and therefore, the suit should have been decided under the provisions of N.-W.F.P. Pre-emption Act, 1987. The learned counsel further contented that section 35 of the N.-W.F.P. Pre-emption Act, 1987, has not been correctly interpreted and applied."
3. By Mutation No,331 sanctioned on 24-3-1979 the disputed land was purchased by Mitha Khan, predecessor of the appellants and Bahawal Khan respondent No,2. This sale was pre-empted in two suits; one, by Muhammad Nasir respondent No,1 and the other by Syed Shaukat Ali respondent No,3. Both the pre-emptors claimed superior right of pre-emption on the basis of the three qualifications available in the previous N.-W.F.P, Pre-emption Act, 1950 as they claim to be--
(i) co-sharers in the land in question;
(ii) participators in immunities, appendages such as right of way or a right to discharge water;
(iii) owners of contiguous property.
' Both these suits were consolidated and the contesting parties were represented in both the cases.
It is to be noted at this stage that Mitha Khan the predecessor of the appellants in his written statement had averred that he had sold his share in the disputed property to Muhammad Akram on the basis of registered sale deed dated 26-4-1980 as the latter was a co-sharer in the disputed property and had a superior right of pre-emption. The vendees denied superior right of pre- emption of the plaintiff and the rival pre-emptors and instead asserted their own superior pre- emptive rights.
4. The learned trial Court decreed the suit on 24-4-1984 of Muhammad Nasir plaintiff to the extent of an area of 49 Kanals, 12 Marlas while that of the rival pre-emptor Shaukat Ali only for one Marla.
This judgment was appealed against by the appellants, rival pre-emptor and the vendees and each challenged the judgment to the extent of his grievance against it. The learned Appellate Court by judgment dated 17-10-1985 dismissed the appeal of Mitha Khan predecessor of the appellants and also that of Muhammad Nazir plaintiff while accepted the appeal of the rival pre- emptor holding him to be entitled to half of the area of Khata No,26. It is pertinent to note that the, appellants did not challenge this judgment in the High Court and it was only Muhammad Nasir who filed Revision No,119 of 1985 in the High' Court against the Appellate Court judgment. The High Court on 29-4-1986 passed the following order on consent of the parties:- "In the circumstances, learned counsel for the parties agree that let the judgments and decrees of both the Courts below be set aside on the point of superior right of pre-emption only. Since the payment of the sale price is admitted while findings of the Courts below on the issue of limitation etc. Are not being contested at this stage, hence trial Court shall only call for evidence of the parties on the issue of superior right of pre-emption. He shall also examine the Patwari Halqa in detail about the respective shares of the preemptors in Khata No,26 as well if the pre-emptors have a superior right of pre-emption in respect of Khata No,269, Khasra No,523 on the basis of participation in appendages and immunities if any or contiguity."
5. After the remand the trial Court by its judgment on 2-9-1987 decreed the suit of Muhammad Nasir plaintiff to the extent of 45 Kanals, 10 Mamas in Khata No,26 and 13 Marla in Khata No,269 while that of the rival pre-emptor up to 16 marla in both the Khatas. This judgment was impugned in three appeals; two by the appellants while the third by the rival preemtpor. The learned Appellate Court while relying on the judgment reported as 1988 SCM R 1800 and 1989 SCM R 276 accepted the appeal of the appellants on the ground that no decree could be passed against them after 31-7-1986. Both the plaintiff and the rival pre-emptor agitated their grievance before the High Court in two separate revisions and a learned Judge of the High Court held that in view of the judgment reported as PLD 1989 SC 771 the suit could not be dismissed for want of non-compliance of ' Talabs' and remanded the case to the Appellate Court for decision on other issues in the case.
The learned Appellate Court placed reliance on Sardar Ali v. Muhammad Ali (PLD 1988 SC 287) and dismissed the application of the appellants for dismissal of the suit for failure of the plaintiff to make ' Talab' and also consequently both the appeals were dismissed. Appellants pursued the matter in revision in which by the impugned judgment passed on 24-5-1993 the learned Judge while rejecting solitary contention raised from appellants' side, dismissed the revision under the following observation: "The learned counsel for the petitioners raised only one contention that the learned lower Courts have violated the provisions of section 20 of the N.-W.F.P. Pre-emption Act, 1987. Elucidating his contention the learned counsel stated that Haji Mitha Khan vendee was a co-sharer in the suit land and under the repealed N.-W.F.P. Pre-emption Act, 1950 he would have been defeated on the principle of Sinker as he had joined with him a stranger namely Bahawal Khan in the purchase of the suit land but the N.-W.F.P., Preemption Act, 1987 had gone away with the doctrine of Sinker and as such the learned lower Courts ought to have divided the suit land equally between the vendees and the rival pre-emptors. The learned counsel for respondent No,1 on the other hand contended that the final decrees having been passed in the year 1984 the suit was governed by the N.-W.F.P., Pre-emption Act, 1950 and the doctrine of Sinker was fully applicable.
' 'The contention of the learned counsel for respondent No,1 has substance. The final decrees having been passed in the year 1984 the cases are governed by the N.-W.F.P. Pre-emption Act, 1950 in view of section 35(2) of the N.-W.F.P. Pre-emption Act, 1987 which provides that in the case of appeals filed under the N.-W.F.P. Pre-emption Act XIV of 1950 in which judgments and decrees passed by the Courts 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 of the said Act. The doctrine of Sinker is thus squarely attracted and it is needless to point out that if a vendee having equal right of pre-emption with the pre-emptor associates with himself another vendee having no preferential right renders himself to the applicability of rule of Sinker as observed in Mst. Amina and another v. Haji Khan (PLD 1991 Peshawar 133)."
6. Learned counsel appearing for the appellants submitted that the High Court has erred in holding that this case was to be decided on the provision of the N.-W.F.P. Pre-emption Act, 1950 and not the new N.-W.F.P. Pre-emption Act, 1987. He clarified that section 35(3) of the new-Pre-emption Act governs the case as after the remand by the High Court the trial Court passed the decree on 2-9- 1987 which could not have been passed legally after 31-7-1986 under the rule laid down in PLD 1986 Supreme Court 306. In this context his second submission was that after that the old Pre-emption Act would not apply and resultantly the Doctrine of Sinker as contained in section 20 of that Act would not be applicable as there is no analogous provision in the new Pre-emption Act. Section 35 of the N.-W.F.P. Pre-emption Act reads:-- "35. Repeal.- -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 Courts 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 (1) and which immediately before the commencement of this Act were pending before a Court shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act."
' The words 'in which judgments and decrees passed by the Courts have become final' in clause (2) of this section are relevant while answering the submission of the learned Advocate as in the present case the decree of preemption had initially been passed on 24-4-1984. So, the question that arises would be; whether the decree passed by the learned trial Court on 24-4-1984 which was subsequently reversed by the Appellate Court on remand of the case, can still be termed as final?
The answer to this proposition can be found in the rule laid down in judgment reported as Rom Khan and others v. Syed Karim Shah and others (1992 SCM R 445), as it was laid down therein "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 35, mean "those judgments and decrees by the Courts rendering it". In so thinking we are fortified by the circumstances that this Court has always understood and consistently expounded the concept of finality in Preemption 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 Preemption (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 decreeing the suit for pre-emption) 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 X 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". Similarly, in Sardar Ali v. Muhammad Ali (PLD 1988 SC 287) certain questions were visualised for applicability of the previous law of pre-emption and out of those, questions Nos.6 and 7 which are relevant for determination of the present controversy are reproduced:-- "(6) Whether a plaintiff having obtained a decree for pre-emption in the trial forum lost the case in a higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1986, and seek its restoration.
(7) Whether a plaintiff having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision, will be entitled to seek its restoration regardless of the fact whether the matter is pending before the trial or any higher forum."
' The answer to these questions was given in affirmative in the judgment. It is thus clear that on the basis of the dictum in the two judgments referred to above the decee of the trial Court passed on 24-4-1984 in this case can be termed as "final" for the purpose of section 35(2) of the new Preemption Act, irrespective of the fact that it was, subsequently, set aside by the higher Courts.
Therefore, section 35(2) of the new Pre-emption Act, would cover the case and as such all the subsequent proceedings in this case would be regulated by N.-W.F.P. Pre-emption Act, 1950. The High Court was, therefore, correct in applying section 20 of the previous Pre-emption Act and dismissing the revision petition on the ground that the transfer by the predecessor of the appellants of his share in the disputed purchased property to a stranger would also deprive him of his pre-emptive right on the basis of the Doctrine of Sinker. This appeal is, therefore, dismissed with costs.