' MUHAMMAD ZAFAR YASIN, J.---This first appeal by plaintiff/appellant is directed against the judgment and decree of the trial Court, dated 31st of July, 1997, whereby the plaintiff's suit for possession through pre-emption has been dismissed.
2. Brief facts relevant for the purposes of the decision of this appeal are that vide registered sale- deed, dated 8-2-1993, the defendants purchased the suit land for a consideration of Rs,4,00,000.
On 7-4-1993, the plaintiff filed a suit for possession alleging her superior right of pre-emption on the ground that she is owner of adjoining property and further the means of irrigation as well as the passage to the suit property and that of the plaintiff's property are common.
' The suit was contested by the defendants/vendees by filing joint written statement, wherein they had raised preliminary objections as well. On the divergent pleadings of the parties, following issues were framed:---
(1) Whether the suit is improperly valued for the purposes of court-fee and jurisdiction? OPD.
(2) Whether the plaintiff is estopped to file the suit?
(3) Whether the plaintiff fulfilled the requirement of three Talbs? OPP.
(4) Whether suit is bad due to non- joinder of necessary parties? OPD.
(5) Whether plaintiff has superior right of pre-emption qua defendants vendees? OPP
(6) Whether the ostensible sale price of Rs,4 lacs was actually fixed and paid in good faith? OPP.
(7) If preceding issue is not proved, then. What was the market value of the suit land at the time of impugned sale? OP Parties
(8) Whether defendants are entitled to improvement charges in case the suit is decreed, if so to what extent? OPD.
(9) Whether defendants are entitled to incidental charges? OPD.
(9-A) Whether the land in dispute was urban or agricultural in character at the time of sale and in case the land was urban whether the land was pre-emptible or not? OPD.
(10) Relief.
3. The trial Court dismissed the suit of the plaintiff on the basis of its findings of issues Nos.3 and 9- A, vide judgment and decree dated 31-7-1997. Hence, this appeal by the plaintiff.
4. Learned counsel for the appellant has attacked the findings of the trial Court on issue No:9-A mainly on the ground that no doubt, there is no evidence in rebuttal to shove' that the suit property is not situated within the limits of Municipal Committee, Chishtian, hence, he did not assail the findings of the trial Court on the first part of this issue decided against him. However, on the second part of the issue, the learned counsel argued that section 2(a) of the Punjab Pre-emption Act, 1991, whereby urban area had been excluded from the definition of 'immovable property' for the purpose of preemption, has been declared as repugnant to the Injunctions of Islam by the Federal Shariat Court in its judgment reported as Muhammad Ismail Qureshi and others v. Government of Punjab and others (PLD 1991 FSC 80) which has become effective from 31st of December, 1991, and the sale, in-this case,' having taken place on 8-2-1993, therefore, the plaintiff/appellant had a superior right of pre-emption on the date of sale and, thus, the findings of the trial Court on issue No,9-A are not sustainable in law. However, the learned counsel did not address arguments on issue No,3.
5. On the other hand, learned counsel for the defendants/respondents has argued that the judgment of the Federal Shariat Court referred by the counsel for the appellant did not attain finality 'as the matter went up before the. Shariat Bench of the Hon'ble Supreme Court of Pakistan and the Hon'ble Supreme Court, though, has maintained the findings of the Federal Shariat Court regarding section 2(a) of the Punjab Pre- emption Act, 1991 but has further held that this decision would take effect from 31st of December, 1993. In this respect. The learned counsel for the respondents referred to the case reported as Haji Rana Muhammad Shabbir Ahmad Khan v.
Government of Punjab Province, Lahore (ND 1994 SC 1). The learned counsel has also relied upon the case reported as Qazi Muhammad Shahab-ud Din v. Muhammad Qasim (1996 CLC 480) to contend that the plaintiff/appellant having no right to pre-empt qua suit land the time of sale as well as on the date when the suit was filed, hence the suit of the plaintiff was rightly dismissed.
6. We have _ given our anxious considerations to the arguments of both the parties. Under the Constitution, it is obligatory upon the Court to specify a date on which the decision shall take effect.
Hence, the Hon'ble Supreme Court has accordingly given 31st of December, 1993, as the date from which the provision of section 2(a) of the Punjab Pre-emption Act, 1991, would be treated to the repugnant to the Injunctions of Islam and would not be part of law. Hence, admittedly, on 8-2-1993 at the time of sale and on 7-4-1993, when the suit was filed by the plaintiff/appellant, the suit property being situate, within the urban area of Municipal Committee, Chishtian, was not pre- emptible. Therefore, the findings of Trial Court on issue No,9-A do not call for any interference.
' The upshot of the above discussion is that the appeal of the plaintiff/appellant is dismissed.
However, as an important question of law was involved in the appeal, therefore. The parties are left to bear their own costs.