' Brief facts out of which the present revision petition arises are that Mst. Aleema Bibi and others were original owners of the suit land in question measuring 35 Kanals, 7 Marlas sold the land in question to respondents for consideration of Rs,1,32,000 vide registered sale-deed, dated 19-8-1987.
Petitioner filed suit for pre-emption on 8-9-1987. Petitioner has withdrawn the suit with permission to file fresh suit on 27-7-1988. Petitioner filed second suit for pre-emption on 31-7-1988 on the ground of Shafi Sharik. The trial Court rejected the plaint of the petitioner vide order, dated 18-2- 1989. Petitioner being aggrieved filed appeal before the District Judge Shakargarh who dismissed the appeal vide judgment and decree, dated 30-1-1996. Hence the present revision petition.
2. Learned counsel for the petitioner stated that the trial Court rejected the plaint of the petitioner on the ground that there is no law in the statute book for making Talab. He further stated that the First Appellate Court up-held the order of the trial Court on two extraneous reasons i,e,, suit of the petitioner is time-barred as the petitioner filed a suit after 11 months. He further stated that the First Appellate Court has taken note of the factum of previous suit and has given finding against the petitioner without recording evidence that the suit of the petitioner is time-barred and petitioner should have filed suit within 4 months. He further stated that the First Appellate Court has dismissed the appeal of the petitioner taking suo-motu point of limitation otherwise trial Court did not reject the plaint of the petitioner on the ground of limitation. He further stated that under Islamic Law no period of limitation is prescribed. He further stated that petitioner is non-suited on technical grounds and the superior Courts insisted that cases must be decided on merits.
3. Learned counsel for the respondents stated that the Hon'ble Supreme Court has fixed cut of date 31-7-1986 in Said Kamal's case PLD 1986 SC 360. Therefore, old preemption Act, 1913 ceased to exist on the statute book automatically on 31-7-1986. Petitioner has to mention Talabs in his previous suit but the petitioner failed to mention Talabs in his first suit and has withdrawn the first suit malafidely to fill in the lacuna. He further stated that the trial Court allowed the petitioner to withdraw the earlier suit subject to the condition that petitioner has to file second suit within limitation. He further stated that the trial Court rejected the application with valid reasons. He further stated that the First Appellate Court was justified to uphold the same as the law laid down by this Court in PLD 1995 Lahore 344. He further stated that the first Appellate Court rightly dismissed the appeal as time- barred. It is the duty and obligation of the Court to see whether the suit is filed within time or not by virtue of section 37 of the limitation Act. He further urged that learned counsel for the petitioner failed to cite any law which supported the cause of the petitioner. Only authority in the field is the aforesaid judgment relied by the First Appellate Court.
4. Learned counsel for the petitioner in rebuttal stated that in Said Kamal's case the Hon'ble Supreme Court has mentioned that pre-emption suit may be filed and decided in accordance with the personal law unless and until the competent body has framed a preemption law. He further stated that the Hon'ble Supreme Court has clarified the aforesaid proposition of law in Safia Begum's case PLD 1989 SC 314 that cases be decided in accordance with personal law unless and until the law is framed by the competent body. He further urged that the question of limitation is always mixed question of law and fact. He relied upon PLD 1965 SC 690 and PLD 1966 Dacca 102. He further stated that previous suits were also saved by virtue of section 35 of the Punjab Pre-emption Act, 1991.
5. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. It is admitted fact that the trial Court rejected the plaint in the following terms as regards the making of Talabs is concerned since the law in this connection has not been brought to the statute book so far. Therefore, the suit is not competent. It is pertinent to mention here that judgment of the trial Court is not in accordance with the law laid down by the Hon'ble Supreme Court in the following judgments: ' PLD 1986 SC 360 (Malik Said Kamal's case).
' PLD 1989 SC 314 (Safia Begum's case.
' The Hon'ble Supreme Court observed Safia Begum's case as under: ' It has not yet been ruled that no suit for pre-emption under the general law, other than statutory laws, would be competent regarding the cause of action arising after 31st July, 1986. To the contrary paragraph 105 of the judgment in the case of Said Kamal postulates a possibility of leaving the pre-emption law under the Islamic mandate on the same lines as are the personal laws in Islam {{URDU TEXT}} ' This was an alternative proposal in addition to the other essential consequential proposal, namely: {{URDU TEXT}} ' It is admitted fact that the original owners sold the land in question to respondent vide registered sale-deed, dated 19-8-1987. Petitioner filed suit for pre-emption on 8-9-1987 and the petitioner was allowed to withdrew the suit to file fresh one within limitation with payments of costs of Rs,50 by the trial Court vide order, dated 27-7-1988. Petitioner filed second suit for pre-emption on 31-7-1988 on the ground of Sherik Khata and common owner. It is better and appropriate to reproduce paras.3 and 4 of the plaint to resolve the controversy between the parties: ' The contents of the plaint reveals that petitioners claim superior right of preemption on the ground of common owner and Sharik Khata (Shafi Sharik) as is evident from para.4 of the plaint and specifically para.3 of the plaint reveals that they had made Talabs expressed their intention to enforce their superior right of pre-emption. It is also admitted fact that the suit was not filed under the provisions of Punjab Pre-emption Act, 1991 but it was instituted under the Islamic Law of pre- emption which is evident from the contents of plaint as mentioned above. During the interregnum period the Injunction of Islam as mentioned in the Holy Qur'an and Sunnah would be deemed to be law on the subject. In the absence of legislative provisions of law, the right of pre-emption could be enforced under Islamic Law of preemption by pleading Talabs in plaints and basing claim or right on the plea of Sharik Khata contiguity and participation in basic amenities. It is settled proposition of law that during vacuum period the petitioner could maintain a suit for pre-emption in accordance with the provisions of Injunctions of Islam of Islamic pre-emption law provided petitioner fulfilled the pre-requisite for enforcing such rights which is a pre-condition to file a suit for pre-emption. It is, now settled. Proposition of law even those suits which were filed during the interregnum period and were dismissed were protected by the provisions of section 35 of Punjab Pre-emption Act, 1991 i,e,, from 1-8-1986 to 28-3-1990 by filing of application, whereafter the suits were to be decided under the prevailing provisions of pre-emption law. I am fortified by the following judgments: ' 1992 CLC 61 (Hazoor Bux's case); ' PLD 1989 SC 314 (Mst. Safia Begum's case); ' PLD 1994 SC 1 (Haji Rana Bashir Ahmed Khan's case); ' 1992 SCMR 1129 (Muhammad Sharif's case) and ' 1993 CLC 1057 (Mst. Nasim Akhtar's case).
In the present case the contents of the aforesaid paragraphs of the plaint clearly reveal that the suit having been filed on the ground recognized by Islamic Law, of preemption, could be validly instituted during the vacuum period which could not have been rejected on the ground that there was no law of pre-emption at the relevant time. The judgment of the trial Court is not in accordance with the law laid down by the superior Courts. Therefore, same is not sustainable in the eyes of law. The First Appellate Court also up held the judgment of the trial Court on wrong premises on new pleas in violation of the law laid down by the superior Courts. This Court in Mst.
Bashiran Bibi's case PLD 1995 Lahore 200 after considering all the case-law and Ordinances on the subject laid down the following principle: "Punjab Pre-emption Act, 1991 was declared repugnant to Islamic Injunctions by the Hon'ble Supreme Court in para.57 in Haji Rana Bashir Ahmad's case (PLD 1994 SC 1) so far as it exempts the cases pending or instituted during the period from 1st of August, 1986 to 28th of March, 1990 from the requirements of Talab-i-Muwathabat and extends the right of limitation for them up to one year. The decision of the Supreme Court took effect on 31st of December, 1993. Prior to its taking effect on the specified day, the existing law in the terms of Article 203-H of 1973, Constitution shall apply to the decision of the cases and also observed qua the proposition of limitation as under: 'As far period of Limitation, though, there was no specific prescription by the Statute Law on the date of filing of the pre-emption suit on 15-11-1989, yet in view of section 35(2) of the Punjab Preemption Act, 1991 covering the period of interregnum from 1-8-1986 to 28-3-1990, the period of limitation for pre-emption suit shall be one year. Subsection (2) was finally struck down as un- Islamic by the Shariat Appellate Bench, Supreme Court of Pakistan with effect from 31-12-1993. The judgment shall apply prospectively. Therefore, in terms of subsection (2) of section 35 of Punjab Pre-emption Act, 1991, pre-emption suit instituted on 15-11-1989 was in time. To this extent, the decision of the Courts below is not upheld' ." ' para.3 of the plaint clearly reveals that petitioner made Talab-i-Muwathabat and Talab-e-Ishad was not declared by the Hon'ble Supreme Court repugnant to injunctions of Islam as is evident from para.60 of the Haji Rana Bashir Ahmad's case (supra). It is also settled proposition of law that for obtaining a decree the petitioner will have to prove, by adducing evidence in support of his averments made in the plaint that he made Talabs for specific right of preemption strictly in accordance with the prerequisites of Injunctions of Islam i,e,, law of pre-emption and the petitioner had qualifications for claiming pre-emption in terms of Islamic Law on the suit liable to be dismissed or plaint rejected on initial stage on assumption as to non-existence.Of any law of pre- emption. I am fortified by the judgment of the Hon'ble Supreme Court in Amir Jan and 3 others v.
Haji Ghulam Muhammad PLD 1997 SC 883. It is also settled proposition of law that question of limitation is always mixed question of law and fact which cannot be decided without recording of evidence. I am fortified by the reported judgment PLD 1994 Pesh.
249. The judgment of both the Courts below are in violation of the law laid down by the superior Courts and this Court has ample jurisdiction to disturb the fmdings of fact in such situation as the principle laid down by the Hon'ble Supreme Court in Shaukat Nawaz's case 1988 SCMR 851.
6. Be that as it may the question need not be finally determined at this stage whether petitioners claiming their right in accordance with Talabs contained in the Holy Qur'an and Sunnah and the suit of the petitioner is time-barred or not, lest the interest of either party may not prejudice, for the reason that the plaint was not rejected on this ground or by the trial Court or by the First Appellate Court nor any view was expressed by the Courts below on this question as the plaint was rejected under Order VII, Rule 11, C.P.C. It will be proper to keep these questions open which also is decided by the learned trial Court while deciding the main suit.
7. In view of what has been discussed above, orders and judgments of both the Courts below suffers from legal infirmity and jurisdictional defect/error and the same beiiig violation of Islamic law of pre-emption are not sustainable. Consequently the revision petition is accepted. The impugned judgments and decrees are set aside and the cases is remanded to the learned trial Court for decision of the suit after framing proper issues out of the pleadings of the parties and recording the evidence and decide the suit on merits in accordance with law without prejudice by the aforesaid observation of this Court. There is no order as to costs.